B-30586, FEBRUARY 1, 1943, 22 COMP. GEN. 723

B-30586, FEBRUARY 1, 1943, 22 COMP. GEN. 723

PAY - ADDITIONAL - DIVING DUTY - MEMBERS OF COAST GUARD WHEN THE COAST GUARD IS OPERATING AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, OFFICERS AND ENLISTED MEN OF THE COAST GUARD WHO ARE DESIGNATED AS DIVERS AND EMPLOYED IN ACTUAL SALVAGE OR REPAIR OPERATIONS ARE ENTITLED TO ADDITIONAL DIVING PAY ON THE SAME BASIS AS THAT AUTHORIZED BY THE ACT OF AUGUST 4, 1942, FOR OFFICERS AND ENLISTED MEN OF THE NAVY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 1, 1943:

THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 24, 1942, REQUESTING DECISION ON A MATTER PRESENTED IN A LETTER DATED NOVEMBER 12, 1942, FROM LIEUTENANT O. F. MCCLOW, U.S. COAST GUARD, SPECIAL DISBURSING AGENT ( NAVY), AS FOLLOWS:

I HAVE BEFORE ME A SUMMARY OF DIVES PERFORMED UNDER EXTRAORDINARY HAZARDOUS CONDITIONS BY AN ENLISTED MAN OF THE U.S. COAST GUARD ASSIGNED TO THE NAVY YARD, WASHINGTON, D.C., AND DESIGNATED AS A DIVER, SECOND CLASS, BY THE COMMANDING OFFICER OF THAT UNIT. THIS MAN IS EMPLOYED IN DIVING IN ACTUAL SALVAGE OPERATIONS ON WRECK OF THE USS LAFAYETTE AND IS SO CERTIFIED BY THE OFFICER IN CHARGE OF THE SALVAGE OPERATIONS. EXTRA PAY IS CLAIMED AS A DIVER, SECOND CLASS, AND ALSO FOR THE TIME EMPLOYED IN ACTUAL SALVAGE OPERATIONS AT THE RATE OF $5.00 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.

THE ACT OF JUNE 27, 1942, AMENDING THE ACTS APPROVED APRIL 9, 1928, AND JANUARY 16, 1936, PROVIDES:

"THAT OFFICERS AND ENLISTED MEN EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET, OR IN DEPTHS OF LESS THAN NINETY FEET WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND IN ACCORDANCE WITH INSTRUCTIONS PRESCRIBED BY THE SECRETARY OF THE NAVY THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO THE FOREGOING, RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.'

ARTICLE D-5326 (3), BUREAU OF NAVAL PERSONNEL MANUAL PROVIDES:

"/E) IN ACCORDANCE WITH THE ACT APPROVED JUNE 27, 1942, AMENDING THE ACTS APPROVED APRIL 9, 1928, AND JANUARY 16, 1936, ENLISTED MEN DESIGNATED AS DIVERS, ANY CLASS, EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF LESS THAN 90 FEET WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO THE FOREGOING, RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.'

IN VIEW OF EXECUTIVE ORDER DATED NOVEMBER 1, 1941, DIRECTING THAT THE U.S. COAST GUARD OPERATE AS A PART OF THE NAVY FROM THAT DATE, IT IS REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER OR NOT OFFICERS AND ENLISTED MEN OF THE U.S. COAST GUARD, DESIGNATED AS DIVERS, ARE ENTITLED TO THE ADDITIONAL PAY AS DIVERS AND ALSO FOR DIVING DUTY, WHEN SO EMPLOYED, AS PROVIDED BY THE ACT OF JUNE 27, 1942 FOR OFFICERS AND ENLISTED MEN OF THE NAVY.

THE PROVISION QUOTED FROM THE ACT OF JUNE 27, 1942, PUBLIC LAW 628, WHICH AMENDED THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED BY THE ACT OF JANUARY 16, 1936, 49 STAT. 1091; 34 U.S.C. 886, WAS REENACTED BY THE ACT OF AUGUST 4, 1942, 56 STAT. 736, PUBLIC LAW 697, WHICH IS, IN PART, AS FOLLOWS:

ALL OFFICERS AND ENLISTED MEN OF THE NAVY ON DUTY ON BOARD A SUBMARINE OF THE NAVY, INCLUDING SUBMARINES UNDER CONSTRUCTION FOR THE NAVY FROM THE TIME BUILDERS' TRIALS COMMENCE SHALL, WHILE SO SERVING, RECEIVE 50 PERCENTUM ADDITIONAL OF THE PAY FOR THEIR RANK OR RATING AND SERVICE AS NOW OR HEREAFTER PROVIDED BY LAW; ALL OFFICERS OF THE NAVY ON DUTY AT SUBMARINE ESCAPE TRAINING TANKS, THE NAVY DEEP SEA DIVING SCHOOL, OR THE NAVAL EXPERIMENTAL DIVING UNIT SHALL, WHILE SO SERVING, RECEIVE 25 PERCENTUM ADDITIONAL OF THE PAY FOR THEIR RANK AND SERVICE AS NOW OR HEREAFTER PROVIDED BY LAW; AND AN ENLISTED MAN OF THE NAVY ASSIGNED TO THE DUTY OF DIVING SHALL RECEIVE ADDITIONAL PAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH, IN ADDITION TO THE PAY AND ALLOWANCES OF HIS RATING AND SERVICE: PROVIDED, THAT OFFICERS AND ENLISTED MEN EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET, OR IN DEPTHS OF LESS THAN NINETY FEET WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND IN ACCORDANCE WITH INSTRUCTIONS PRESCRIBED BY THE SECRETARY OF THE NAVY THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO THE FOREGOING, RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.

PURSUANT TO AUTHORITY VESTED IN THE PRESIDENT BY SECTION 1 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, AS AMENDED BY SECTIONS 5 AND 6 OF THE ACT OF JULY 11, 1941, 55 STAT. 585, THE PRESIDENT, BY EXECUTIVE ORDER NO. 8929, NOVEMBER 1, 1941, DIRECTED THAT THE UNITED STATES COAST GUARD SHOULD OPERATE FROM NOVEMBER 1, 1941, UNTIL FURTHER ORDERS, AS PART OF THE NAVY, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY.

THE ACT OF AUGUST 29, 1916, 39 STAT. 600 (14 U.S.C. 3), PROVIDES THAT---

WHENEVER, IN TIME OF WAR, THE COAST GUARD OPERATES AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, THE PERSONNEL OF THAT SERVICE SHALL BE SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE NAVY: * * *

SECTION 8 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, PROVIDES:

THAT COMMISSIONED OFFICERS, WARRANT OFFICERS, PETTY OFFICERS, AND OTHER ENLISTED MEN OF THE COAST GUARD SHALL RECEIVE THE SAME PAY, ALLOWANCES, AND INCREASES AS NOW ARE, HEREIN ARE, OR HEREAFTER MAY BE PRESCRIBED FOR CORRESPONDING GRADES OR RATINGS AND LENGTH OF SERVICE IN THE AVY; * * *

THIS PROVISION IN THE ACT OF MAY 18, 1920, WAS LARGELY SUPERSEDED BY THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THE ACT OF JUNE 16, 1942, 56 STAT. 359, PUBLIC LAW 607, WHICH PRESCRIBED SPECIFIC RATES OF PAY AND INCREASES FOR OFFICERS AND ENLISTED MEN OF THE COAST GUARD. DECISION OF DECEMBER 12, 1938, A-95161; SEE, ALSO, DECISION OF NOVEMBER 19, 1940, B-13249, COMPARE 22 COMP. GEN. 171. HOWEVER, SUCH ACTS DID NOT COVER ADDITIONAL PAY OF THE CHARACTER HERE INVOLVED; AND WHEN, IN TIME OF WAR, THE COAST GUARD IS OPERATING AS A PART OF THE NAVY IN ACCORDANCE WITH LAW, SUBJECT TO THE ORDERS OF THE SECRETARY OF THE NAVY AND SUBJECT TO THE LAWS PRESCRIBED FOR THE GOVERNMENT OF THE NAVY, EXCEPT AS OTHERWISE PROVIDED BY LAW, THE CONCLUSION WOULD APPEAR JUSTIFIED THAT MEMBERS OF THE COAST GUARD DESIGNATED AND EMPLOYED AS DIVERS ARE ENTITLED TO SUCH ADDITIONAL PAY ON THE SAME BASIS AS AUTHORIZED FOR OFFICERS AND ENLISTED MEN OF THE NAVY SO DESIGNATED AND EMPLOYED. ALTHOUGH THE STATUTE AUTHORIZING ADDITIONAL PAY FOR DIVING DUTY MENTIONS SPECIFICALLY OFFICERS AND ENLISTED MEN OF THE NAVY, THE WORD " NAVY" IN GENERAL STATUTORY PROVISIONS HAS BEEN CONSTRUED TO INCLUDE THE COAST GUARD WHILE OPERATING AS A PART OF THE NAVY WHERE THAT INTERPRETATION CLEARLY APPEARS CONSISTENT WITH THE PURPOSE AND SPIRIT OF THE STATUTE INVOLVED AND THE OBJECT WHICH IT WAS INTENDED TO ACCOMPLISH. SEE LAWS RELATING TO THE NAVY, ANNOTATED, MARCH 4, 1921, PAGE 706.

THE PURPOSE OF THE STATUTE HERE INVOLVED WAS TO PROVIDE ADDITIONAL BENEFITS FOR THOSE OFFICERS AND MEN OF THE NAVY ENGAGED IN THE HAZARDOUS DUTY OF DIVING. IT IS A PROVISION FOR EXTRA PAY FOR A PARTICULAR TYPE OF DUTY ORDINARILY PERFORMED BY NAVAL PERSONNEL AND THE HAZARDS AND CONDITIONS ARE THE SAME WHETHER THE DUTY IS PERFORMED BY PERSONNEL OF THE NAVY PROPER OR THE COAST GUARD COMPONENT. IT IS CONCLUDED THAT WHEN SUCH DUTY IS PERFORMED BY OFFICERS AND ENLISTED MEN OF THE COAST GUARD WHO HAVE BEEN ASSIGNED TO THE DUTY OF DIVING WHILE THE COAST GUARD IS OPERATING AS PART OF THE NAVY IN ACCORDANCE WITH LAW, PAYMENT OF THE ADDITIONAL PAY IS AUTHORIZED, SUBJECT TO THE SAME CONDITIONS AND LIMITATIONS AS IN THE CASE OF OFFICERS AND ENLISTED MEN OF THE NAVY PROPER UNDER SUCH CIRCUMSTANCES.