B-34809, JUNE 23, 1943, 22 COMP. GEN. 1123

B-34809: Jun 23, 1943

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ARMY PERSONNEL ARE ENTITLED TO THE ADDITIONAL PAY WHILE THEY ARE ABSENT ON LEAVE OR FURLOUGH. OR SICK IN HOSPITAL IF NOT DETACHED FROM FOREIGN SERVICE AND ARE UNDER ORDERS TO RETURN THERETO. " ARMY PERSONNEL ARE ENTITLED TO CONTINUE TO RECEIVE THE INCREASE IN PAY FOR SEA DUTY WHILE SICK IN HOSPITAL ON SHORE IN THE UNITED STATES IF THEY ARE NOT DETACHED FROM SEA DUTY AND ARE UNDER ORDERS TO RETURN THERETO. " DO NOT EXPRESSLY INCLUDE PERIODS DURING WHICH ARMY PERSONNEL ARE ON LEAVE OR FURLOUGH EVEN THOUGH NOT DETACHED FROM THE VESSEL TO WHICH ASSIGNED. SUCH PERIODS MAY NOT BE INCLUDED AS PERIODS OF "SERVICE" WITHIN THE MEANING OF THE SAID REGULATIONS FOR WHICH PAYMENT OF SEA DUTY PAY IS AUTHORIZED.

B-34809, JUNE 23, 1943, 22 COMP. GEN. 1123

PAY - ADDITIONAL - SEA AND FOREIGN SHORE DUTY - ARMY PERSONNEL UNDER SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING ADDITIONAL PAY TO MILITARY AND NAVAL PERSONNEL WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, ARMY PERSONNEL ARE ENTITLED TO THE ADDITIONAL PAY WHILE THEY ARE ABSENT ON LEAVE OR FURLOUGH, OR SICK IN HOSPITAL IF NOT DETACHED FROM FOREIGN SERVICE AND ARE UNDER ORDERS TO RETURN THERETO, PROVIDED THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; BUT IF THEY RETURN TO THE UNITED STATES DURING SUCH ABSENCE, THE RIGHT TO THE ADDITIONAL PAY CEASES. THE RIGHT TO PAYMENT OF THE ADDITIONAL PAY, AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR MILITARY OR NAVAL PERSONNEL ON "SEA DUTY" AS DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, DEPENDS UPON THE INDIVIDUAL'S STATUS WITH RESPECT TO A VESSEL; AND WHETHER WITHIN OR WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES DOES NOT AFFECT HIS RIGHT TO SUCH ADDITIONAL PAY. IN VIEW OF THE PROVISIONS OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING ADDITIONAL PAY TO MILITARY AND NAVAL PERSONNEL FOR SERVICE WHILE ON SEA DUTY "AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED," ARMY PERSONNEL ARE ENTITLED TO CONTINUE TO RECEIVE THE INCREASE IN PAY FOR SEA DUTY WHILE SICK IN HOSPITAL ON SHORE IN THE UNITED STATES IF THEY ARE NOT DETACHED FROM SEA DUTY AND ARE UNDER ORDERS TO RETURN THERETO, IN ACCORDANCE WITH REGULATIONS, ISSUED BY THE SECRETARY OF WAR PURSUANT TO THE SAID ACT, DEFINING SUCH SERVICE AS "SEA DUTY.' INASMUCH AS CURRENT REGULATIONS DEFINING SEA DUTY ISSUED BY THE SECRETARY OF WAR PURSUANT TO SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZING ADDITIONAL PAY TO MILITARY AND NAVAL PERSONNEL FOR SERVICE WHILE ON SEA DUTY "AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED," DO NOT EXPRESSLY INCLUDE PERIODS DURING WHICH ARMY PERSONNEL ARE ON LEAVE OR FURLOUGH EVEN THOUGH NOT DETACHED FROM THE VESSEL TO WHICH ASSIGNED, SUCH PERIODS MAY NOT BE INCLUDED AS PERIODS OF "SERVICE" WITHIN THE MEANING OF THE SAID REGULATIONS FOR WHICH PAYMENT OF SEA DUTY PAY IS AUTHORIZED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JUNE 23, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 26, 1943, IN PERTINENT PART AS FOLLOWS:

REFERENCE IS ALSO MADE TO DECISION B-25847 AS PUBLISHED IN 21 COMP. GEN. 1050 IN WHICH IT WAS HELD (ON PAGE 1054) THAT THE RIGHT OF AN OFFICER TO SEA DUTY PAY CEASED WHEN THE OFFICER WAS DETACHED FROM THE VESSEL FOR ADMISSION TO A HOSPITAL. IT WAS ACCORDINGLY CONSIDERED THAT SO LONG AS AN OFFICER WAS NOT DETACHED FROM THE VESSEL, HE WOULD BE ENTITLED TO ADDITIONAL PAY FOR SEA DUTY, EVEN THOUGH TEMPORARILY ABSENT THEREFROM ON LEAVE OR IN HOSPITAL.

HOWEVER, IN DECISION B-28693, DATED SEPTEMBER 29, 1942, IT WAS HELD THAT WHILE AN OFFICER WAS HOSPITALIZED IN THE UNITED STATES, EVEN THOUGH HIS ORDERS TRANSFERRING HIM TO THE HOSPITAL DID NOT TERMINATE HIS ASSIGNMENT TO FOREIGN DUTY, HE WAS NOT ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES AND, ACCORDINGLY, WOULD NOT BE ENTITLED TO THE 10 PERCENT INCREASE FOR FOREIGN SERVICE.

IT HAS HERETOFORE BEEN CONSIDERED THAT THE CONDITIONS UNDER WHICH ADDITIONAL PAY IS AUTHORIZED FOR FOREIGN SERVICE ARE THE SAME AS THOSE UNDER WHICH SUCH PAY ACCRUES FOR SEA DUTY. HOWEVER, THE TWO DECISIONS CITED ABOVE APPEAR TO MAKE A DISTINCTION BETWEEN SEA DUTY AND FOREIGN SERVICE AND THIS OFFICE IS UNABLE TO DETERMINE WHETHER OR NOT SUCH DISTINCTION IS FOR APPLICATION TO ALL CASES INVOLVING ADDITIONAL PAY FOR SEA DUTY OR FOREIGN SERVICE.

YOUR DECISION IS THEREFORE REQUESTED ON THE FOLLOWING SPECIFIC QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH PAYMENTS TO ARMY PERSONNEL:

1. ARE OFFICERS, NURSES, WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY ENTITLED TO ADDITIONAL PAY FOR FOREIGN SERVICE WHILE ABSENT ON LEAVE OR FURLOUGH, OR SICK IN HOSPITAL, IF NOT DETACHED FROM FOREIGN SERVICE AND UNDER ORDERS TO RETURN THERETO, (A) IF DURING SUCH ABSENCE THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, OR (B) IF WHILE ON LEAVE OR FURLOUGH THEY VISIT THE UNITED STATES, OR ARE HOSPITALIZED IN THE UNITED STATES.

2. ARE THE PERSONNEL LISTED ABOVE ENTITLED TO ADDITIONAL PAY FOR SEA DUTY, WHILE ABSENT ON LEAVE OR FURLOUGH, OR SICK IN HOSPITAL IF NOT DETACHED FROM SUCH SEA DUTY AND UNDER ORDERS TO RETURN THERETO, UNDER CONDITIONS SET FORTH IN (A) AND (B) ABOVE?

SECTION 2 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360, PROVIDES:

THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES OTHERWISE AUTHORIZED: PROVIDED, THAT THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY FOR AVIATION AND SUBMARINE DUTY: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT. SUBSTANTIALLY THE SAME PROVISION WAS CONTAINED IN SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, EXCEPT THAT THE LATER ACT CONFERS AUTHORITY UPON THE HEAD OF THE DEPARTMENT CONCERNED TO DEFINE SEA DUTY.

UNDER THE ACT OF JUNE 30, 1902, 32 STAT. 507, 512, AND THE ACT OF MAY 13, 1908, 35 STAT. 127, 128, AS AMENDED, WHICH ALSO AUTHORIZED INCREASED PAY FOR FOREIGN SHORE DUTY FOR OFFICERS AND ENLISTED MEN OF THE ARMY AND NAVY, RESPECTIVELY, THE ADDITIONAL PAY FOR SUCH DUTY COMMENCED ON THE DATE OF DEPARTURE FROM THE UNITED STATES AND CONTINUED UNTIL THE OFFICER OR ENLISTED MAN RETURNED TO THE UNITED STATES. SEE GEARING V. UNITED STATES, 46 C.1CLS. 187; MCCULLY V. UNITED STATES, 42 C.1CLS. 275; 13 COMP. DEC. 632. UNDER THE SAID ACTS, AS INTERPRETED BY THE CITED DECISIONS, IT WAS HELD THAT THE RIGHT TO ADDITIONAL PAY DID NOT TERMINATE DURING A PERIOD OF LEAVE WHERE SUCH LEAVE WAS NOT SPENT IN THE UNITED STATES. IZARD V. UNITED STATES, 48 C.1CLS. 367; 22 COMP. DEC. 326; 19 COMP. DEC. 608. HOWEVER UPON RETURN TO THE UNITED STATES, WHETHER ON LEAVE OR AT THE TERMINATION OF THE ASSIGNMENT TO FOREIGN SHORE DUTY, THE RIGHT TO ADDITIONAL PAY CEASED. 21 COMP. DEC. 604.

THE CURRENT LAW, QUOTED ABOVE, AUTHORIZING INCREASED PAY "FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY" OR "DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" DOES NOT PRESCRIBE THE DATE ON WHICH THE ADDITIONAL PAY SHALL COMMENCE OR TERMINATE; BUT ON THE BASIS OF THE DECISIONS UNDER THE ACTS OF JUNE 30, 1902, AND MAY 13, 1908, SUPRA, IT WAS HELD THAT UNDER THE PRESENT LAW THE INCREASE IN PAY FOR FOREIGN SERVICE IS AUTHORIZED FROM THE DATE OF DEPARTURE FROM THE UNITED STATES UNDER AN ASSIGNMENT TO FOREIGN SERVICE. 21 COMP. GEN. 932, 1050. ALSO, CONSISTENT WITH THE PRIOR DECISIONS, IT WAS HELD IN DECISION DATED SEPTEMBER 29, 1942, B-28693, MENTIONED IN YOUR LETTER, THAT AN OFFICER ASSIGNED TO FOREIGN SHORE DUTY BUT WHO WAS UNDERGOING HOSPITALIZATION IN THE UNITED STATES WAS NOT ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES AND WAS NOT ENTITLED TO THE INCREASE IN PAY FOR FOREIGN SERVICE AFTER ARRIVAL IN THE UNITED STATES.

THE INTENT OF THE PRESENT LAW IS TO AUTHORIZE ADDITIONAL PAY FOR THOSE MEMBERS OF THE ARMED FORCES WHO ARE SUBJECTED TO THE CONDITIONS INCIDENT TO DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. WHILE IN THE UNITED STATES THEY ARE NOT ON SUCH DUTY. ACCORDINGLY, IN ANSWER TO YOUR FIRST QUESTION, YOU ARE ADVISED THAT OFFICERS, NURSES, WARRANT OFFICERS AND ENLISTED MEN OF THE ARMY ARE ENTITLED TO ADDITIONAL PAY FOR FOREIGN SERVICE WHILE ABSENT ON LEAVE OR FURLOUGH OR SICK IN HOSPITAL "IF NOT DETACHED FROM FOREIGN SERVICE AND UNDER ORDERS TO RETURN THERETO," IF DURING SUCH ABSENCE THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; BUT IF DURING SUCH ABSENCE THEY RETURN TO THE UNITED STATES, THE RIGHT TO ADDITIONAL PAY FOR DUTY OUTSIDE THE UNITED STATES CEASES.

YOUR SECOND QUESTION REFERS TO PAYMENT OF ADDITIONAL PAY FOR SEA DUTY "WHILE ABSENT ON LEAVE OR FURLOUGH, OR SICK IN HOSPITAL IF NOT DETACHED FROM SEA DUTY AND UNDER ORDERS TO RETURN THERETO" (A) IF DURING SUCH ABSENCE THEY REMAIN OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR (B) IF WHILE ON LEAVE OR FURLOUGH THEY VISIT THE UNITED STATES OR ARE HOSPITALIZED IN THE UNITED STATES. FROM THE MANNER IN WHICH THE QUESTION IS FRAMED, IT APPEARS THAT SOME IMPORTANCE IS ATTACHED TO WHETHER THE PERSONNEL INVOLVED ARE IN THE UNITED STATES OR WITHOUT THE BOUNDARIES THEREOF. HOWEVER, PAYMENT OF THE ADDITIONAL PAY FOR SEA DUTY DEPENDS UPON THE INDIVIDUAL'S STATUS WITH RESPECT TO A VESSEL, AND WHETHER HE IS WITHIN OR WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES DOES NOT AFFECT HIS RIGHTS TO SEA DUTY PAY IN CONNECTION THEREWITH. SEE 20 COMP. DEC. 481. AS TO INCREASED PAY FOR FOREIGN SERVICE, HOWEVER, THE LONG STANDING RULE REQUIRES SUCH SERVICE TO HAVE BEEN PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES. SEE 20 COMP. DEC. 333, AND CASES CITED THEREIN.

REFERENCE IS MADE IN YOUR LETTER TO DECISION OF MAY 25, 1942, 21 COMP. GEN. 1050, IN WHICH IT WAS HELD THAT DUTY OF ARMY PERSONNEL ON CERTAIN VESSELS COULD BE CONSIDERED SEA DUTY BUT THAT SUCH PERSONNEL WERE NOT ENTITLED TO SEA DUTY PAY WHILE ON LEAVE OR FURLOUGH ON SHORE. IT WAS ALSO STATED THAT UPON DETACHMENT FROM A VESSEL FOR ADMISSION TO A HOSPITAL, THE RIGHT TO SEA DUTY PAY CEASED. IT IS TO BE NOTED HOWEVER, THAT THAT DECISION HAD REFERENCE TO THE INCREASE IN PAY FOR SEA DUTY AS AUTHORIZED BY SECTION 18 OF THE ACT OF MARCH 7, 1942, SUPRA, AND THE CONCLUSION THEREIN REACHED WAS IN ACCORDANCE WITH THE PRIOR HOLDINGS OF THE COURTS AND ACCOUNTING OFFICERS. SEA DUTY UNDER THE PRESENT LAW IS "AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED.' PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 2 OF THE ACT OF JUNE 16, 1942, SUPRA, THE SECRETARY OF WAR HAS DEFINED SEA DUTY AS FOLLOWS ( ARMY REGULATION 35- 1490, PARAGRAPH 6, CHANGES NO. 2, MARCH 31, 1943):

UNDER THE PROVISIONS OF SECTION 2 OF THE ACT APPROVED JUNE 16, 1942 (SEC. I, BULL. 28, W.D., 1942), THE FOLLOWING SERVICE IS DEFINED AS SEA DUTY FOR ALL COMMISSIONED OFFICERS, ARMY NURSES, WARRANT OFFICERS, AND ENLISTED MEN IN THE MILITARY SERVICE, FROM AND AFTER JUNE 1, 1942:

A. VESSELS OF ARMY TRANSPORT SERVICE.--- ALL SUCH SERVICE PERFORMED WHILE PERMANENTLY ASSIGNED TO DUTY ON A VESSEL OWNED, LEASED, CHARTERED, OR OPERATED BY THE UNITED STATES ARMY TRANSPORT SERVICE WHICH REGULARLY PROCEEDS TO POINTS REQUIRING TRANSIT OF THE SEAS AS DISTINGUISHED FROM SERVICE IN HARBORS IN THE UNITED STATES, INCLUDING PERIODS OF TEMPORARY ADDITIONAL DUTY ABOARD SUCH VESSEL WHILE AT SEA EVEN THOUGH PRIMARY DUTY IS SHORE DUTY, AND SERVICE AS REGULAR OR RELIEF MEMBERS OF THE PERSONNEL OF SUCH VESSEL, AND WHILE STILL ATTACHED OR ASSIGNED TO SUCH VESSEL FOR NOT EXCEEDING 30 CONSECUTIVE DAYS WHILE ON TEMPORARY ADDITIONAL DUTY ASHORE.

B. ARMED GUARD DETAIL OR GUN CREW.--- SERVICE PERFORMED WHILE ASSIGNED TO DUTY AS AN ARMED GUARD, OR MEMBER OF ARMED GUARD DETAIL OR GUN CREW ON ANY VESSEL, MILITARY, NAVAL, OR CIVILIAN, WHICH NORMALLY PROCEEDS TO SEA AS INDICATED IN A ABOVE.

C. DURATION OF SERVICE.--- FOR ALL SERVICE WHILE ACTUALLY SERVING, AS OUTLINED IN A AND B ABOVE, ON VESSELS AND WHILE STILL ASSIGNED TO SUCH DUTY FOR NOT EXCEEDING 30 CONSECUTIVE DAYS WHILE IN PORT IN THE UNITED STATES IMMEDIATELY FOLLOWING SUCH SERVICE ON BOARD VESSELS, PROVIDED THAT SUCH PERSONNEL STILL RECEIVE RATIONS AND QUARTERS IN KIND ABOARD SUCH VESSELS.

D. ARMY MINE PLANTERS AND CABLE SHIPS.

(1) DUTY ON BOARD ARMY MINE PLANTERS AND CABLE SHIPS PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY. SEE 21 COMP. GEN. 1050.

(2) HARBOR BOATS, SUPPLY SHIPS, AND OTHER VESSELS.--- DUTY ON BOARD HARBOR BOATS, SUPPLY SHIPS, AND OTHER VESSELS PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY ON A VOYAGE FROM ONE PORT IN THE UNITED STATES TO ANOTHER PORT IN THE UNITED STATES, ON A VOYAGE FROM A PORT IN THE UNITED STATES TO A PORT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, OR FOR SUCH OTHER PERIODS DURING WHICH CONDITIONS OF SERVICE AT SEA EXIST. SEE 21 COMP. GEN. 1050.

E. WHILE SICK IN HOSPITAL.--- WHILE SICK IN HOSPITAL IN LINE OF DUTY ON SHORE IN THE UNITED STATES SO LONG AS PERMANENT ASSIGNMENT ON BOARD A VESSEL OPERATING AS OUTLINED IN A, B, C, AND D ABOVE REMAINS UNCHANGED.

IN VIEW OF SUCH REGULATIONS, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE INSOFAR AS SAID QUESTION RELATES TO PAYMENT OF THE INCREASE IN PAY FOR SEA DUTY WHILE SICK IN HOSPITAL AND NOT DETACHED FROM SUCH SEA DUTY AND UNDER ORDERS TO RETURN THERETO. SEE IN THIS CONNECTION DECISION OF JUNE 10, 1942, TO THE SECRETARY OF THE NAVY, B-25754, 21 COMP. GEN. 1107, AND CASES CITED THEREIN. CURRENT REGULATIONS DEFINING SEA DUTY DO NOT EXPRESSLY INCLUDE PERIODS DURING WHICH ARMY PERSONNEL ARE ON LEAVE OR FURLOUGH EVEN THOUGH NOT DETACHED FROM THE VESSEL TO WHICH ASSIGNED. HENCE, SUCH PERIODS MAY NOT BE INCLUDED AS PERIODS OF "SERVICE" ON THE VESSEL WITHIN THE MEANING OF THE REGULATIONS. SEE 15 COMP. DEC. 656; 18 COMP. DEC. 340. ACCORDINGLY, INSOFAR AS YOUR SECOND QUESTION RELATES TO PAYMENT OF SEA DUTY PAY WHILE ARMY PERSONNEL ARE ON LEAVE OR FURLOUGH, IT IS ANSWERED IN THE NEGATIVE.