B-37984, JANUARY 26, 1944, 23 COMP. GEN. 543

B-37984, JANUARY 26, 1944, 23 COMP. GEN. 543

PAY - ADDITIONAL - FOREIGN DUTY - RIGHTS AS AFFECTED BY TEMPORARY NATURE OF DUTIES THE PERFORMANCE BY AN ARMY OFFICER OF DUTIES ACROSS THE BORDERS OF THE UNITED STATES FOR A PERIOD OF MORE THAN A WEEK, EVEN THOUGH SUCH DUTIES ARE MERELY INCIDENTAL TO THE PRIMARY DUTIES ASSIGNED IN THIS COUNTRY, MAY BE REGARDED AS CONSTITUTING A PERIOD OF FOREIGN SERVICE WITHIN THE CONTEMPLATION OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO ENTITLE HIM TO THE 10 PERCENT INCREASE IN BASE PAY AUTHORIZED FOR COMMISSIONED OFFICERS FOR ANY PERIOD OF SERVICE "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES.' WHERE AN ARMY OFFICER IS ASSIGNED DUTY ACROSS THE BORDERS OF THE UNITED STATES AND THE DUTY SO ASSIGNED IS NOT MERELY INCIDENTAL TO THE DUTIES IN THIS COUNTRY, SUCH DUTY, IRRESPECTIVE OF ITS TEMPORARY CHARACTER OR THE TIME INVOLVED, MAY BE REGARDED AS FOREIGN DUTY SO AS TO ENTITLE HIM TO THE 10 PERCENT INCREASE AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, FOR COMMISSIONED OFFICERS FOR ANY PERIOD OF SERVICE "BEYOND THE CONTINENTAL LIMITS OF THE UNITED TES.' AN ARMY AIR FORCE OFFICER WHOSE DUTY ASSIGNMENT WAS TO TRANSPORT OR FERRY AND DELIVER AIRPLANES TO PLACES IN FOREIGN COUNTRIES--- WHICH DUTY IS SEPARATE FROM AND NOT INCIDENTAL TO DUTIES ASSIGNED IN THIS COUNTRY--- IS ENTITLED, IRRESPECTIVE OF THE TEMPORARY CHARACTER OF SUCH DUTY OR THE TIME INVOLVED, TO PAYMENT OF THE PERCENTAGE INCREASE IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR COMMISSIONED OFFICERS FOR ANY PERIOD OF SERVICE "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES.'

ASSISTANT COMPTROLLER GENERAL YATES TO COL. HERBERT BALDWIN, U.S. ARMY, JANUARY 26, 1944:

BY FIRST INDORSEMENT OF OCTOBER 26, 1943, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 16, 1943, REQUESTING A DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN ROBERT Z. GLASS, AIR CORPS, AUS, IN THE AMOUNT OF $20.33, REPRESENTING FOREIGN SERVICE PAY FOR CERTAIN PERIODS HEREINAFTER INDICATED.

IT APPEARS THAT CAPTAIN GLASS WAS STATIONED AT LOVE FIELD, TEXAS, AND THAT FROM TIME TO TIME HE WAS DIRECTED BY OPERATIONS ORDERS ISSUED BY HEADQUARTERS, 5TH FERRYING GROUP, FERRYING DIVISION, AIR TRANSPORT COMMAND, AT THAT STATION, TO TRANSPORT AND DELIVER CERTAIN AIRPLANES TO POINTS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. SEE PARAGRAPH 1, OPERATIONS ORDER NO. 2012, NOVEMBER 14, 1942; PARAGRAPH 1, OPERATIONS ORDER NO. 280, JANUARY 21, 1943; PARAGRAPH 1, OPERATIONS ORDER NO. 69, JANUARY 6, 1943; PARAGRAPH 1, OPERATIONS ORDER NO. 944, MARCH 19, 1943; PARAGRAPH 1, OPERATIONS ORDER NO. 1762, MAY 28, 1943; PARAGRAPH 1, OPERATIONS ORDER NO. 1161, APRIL 7, 1943; AND PARAGRAPH 1, OPERATIONS ORDER NO. 1478, MAY 3, 1943. EACH OF SAID ORDERS DIRECTED THE OFFICER TO SECURE A CERTAIN PLANE, PROCEED TO A DESIGNATED POINT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, DELIVER THE PLANE TO A PARTY NAMED IN THE ORDER AND RETURN WITHOUT DELAY TO HIS STATION, LOVE FIELD, DALLAS, TEXAS. ITS IS DISCLOSED THAT IN COMPLIANCE WITH THOSE ORDERS THE OFFICER DEPARTED FROM THE UNITED STATES NOVEMBER 16, 1942, AND RETURNED NOVEMBER 19, 1942; DEPARTED JANUARY 13, 1943, AND RETURNED THE SAME DAY; DEPARTED AND RETURNED ON JANUARY 27, 1943; DEPARTED MARCH 20, 1943, AND RETURNED MARCH 21; DEPARTED APRIL 11, 1943, AND RETURNED APRIL 20; DEPARTED AND RETURNED ON MAY 5, 1943; AND DEPARTED ON MAY 29, 1943, AND RETURNED ON MAY 30. THE QUESTION PRESENTED IS WHETHER ADDITIONAL PAY IS AUTHORIZED FOR SUCH PERIODS PURSUANT TO SECTION 2 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360, WHICH 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.

IN A DECISION DATED JUNE 21, 1943, B-34934, THERE WAS CONSIDERED THE CASE OF AN OFFICER DIRECTED TO TRANSPORT A PLANE FROM THE UNITED STATES TO A DESIGNATED POINT OUTSIDE THE CONTINENTAL LIMITS THEREOF, DELIVER THE PLANE AND RETURN TO HIS STATION IN THE UNITED STATES. HE REMAINED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES FOR APPROXIMATELY 30 DAYS AND IT WAS STATED IN THAT DECISION THAT UNDER THE TERMS OF HIS ORDERS "THE OFFICER WAS REQUIRED TO PERFORM A DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES WHICH APPEARS TO HAVE BEEN SEPARATE AND DISTINCT FROM THE REGULAR DUTY REQUIREMENTS AT HIS PERMANENT STATION IN THE UNITED STATES," AND IT WAS HELD THAT FOREIGN SERVICE PAY WAS AUTHORIZED FOR THE PERIOD OF ABSENCE FROM THE UNITED STATES.

THAT CONCLUSION WAS IN CONSONANCE WITH DECISION OF NOVEMBER 5, 1942, 22 COMP. GEN. 437, WHERE IT WAS HELD THAT AN ARMY OFFICER ATTACHED AS ACTING QUARTERMASTER AND AGENT FINANCE OFFICER TO A BOARD OF OFFICERS DIRECTED TO PROCEED TO CANADA FOR THE PURPOSE OF EFFECTING THE TRANSFER OF UNITED STATES CITIZENS THEN IN THE CANADIAN ARMED FORCES TO THE ARMED FORCES OF THE UNITED STATES WAS ENTITLED TO ADDITIONAL PAY UNDER THE SAID PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1942, AND THE SIMILAR PRIOR PROVISIONS CONTAINED IN SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, FOR THE PERIOD OF APPROXIMATELY ONE MONTH HE WAS IN CANADA. IT WAS SAID IN THAT DECISION:

* * * WHILE THE DUTY WAS OF A TEMPORARY NATURE IT WAS NOT MERELY INCIDENT TO OR IN CONNECTION WITH A PARAMOUNT OR PRIMARY DUTY IN THE UNITED STATES; IT THEREFORE CONSTITUTED A DUTY "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES" AND THUS REASONABLY FALLS WITHIN THE LANGUAGE AND PURVIEW OF SECTION 18 OF THE ACT OF MARCH 7 AND SECTION 2 OF THE ACT OF JUNE 16, 1942. * * * SEE, ALSO, DECISION OF APRIL 17, 1942, 21 COMP. GEN. 932, 942, WHERE IT WAS HELD THAT UNDER THE TERMS OF THE STATUTE IT MAKES NO DIFFERENCE WHETHER A PERIOD OF SERVICE ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IS OR IS NOT DENOMINATED TEMPORARY DUTY.

HOWEVER, THE STATUTORY PROVISIONS HAVE NOT BEEN VIEWED AS AUTHORIZING THE INCREASE MERELY BECAUSE A PERSON'S DUTIES IN THIS COUNTRY INCIDENTALLY REQUIRED HIM TO GO FOR SHORT PERIODS ACROSS THE BORDERS OF THE UNITED STATES. IN DECISION OF SEPTEMBER 14, 1943, 23 COMP. GEN. 190, IT WAS HELD THAT THE INCREASE WAS NOT AUTHORIZED IN A CASE WHERE A NAVAL OFFICER MADE TWO SHORT TRIPS INTO MEXICO AND ONE INTO CANADA, NONE OF WHICH EXCEEDED SEVEN DAYS, IN CONNECTION WITH HIS DUTIES IN THE UNITED STATES OVER A PERIOD OF SOME 16 MONTHS. IT WAS SAID IN THAT DECISION:

IT HAS BEEN HELD CONSISTENTLY THAT A BRIEF PERIOD OF DUTY IN A FOREIGN COUNTRY DOES NOT CONSTITUTE FOREIGN SERVICE, WITHIN THE MEANING OF FOREIGN SERVICE PAY LAWS, IF THE DUTY THERE PERFORMED WAS MERELY INCIDENT TO A PARAMOUNT OR PRIMARY DUTY AT A STATION WITHIN THE UNITED STATES. SEE 73 MS COMP. DEC. 87, APRIL 7, 1915; 23 COMP. DEC. 82. CF., ALSO, 21 COMP. GEN. 1050, 1054 IN REGARD TO THE QUESTION OF FOREIGN SERVICE PAY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, SUPRA, FOR ARMY OFFICERS ENGAGED IN RECONNAISSANCE FLIGHTS FROM BASES IN THE UNITED STATES TO POINTS OUTSIDE THE UNITED STATES.

IT APPEARS THAT COMMANDER CLIFFORD'S TEMPORARY DUTIES OUTSIDE THE UNITED STATES FOR PERIODS OF THREE, SEVEN, AND FOUR DAYS, RESPECTIVELY, IN CONNECTION WITH THE JOINT CONFERENCES AND JOINT PLANNING WERE IN DIRECT CONNECTION WITH HIS PARAMOUNT DUTIES WITH THE WESTERN SEA FRONTIER. THE ORDERS DID NOT CONFINE THE DUTY TO BE PERFORMED TO POINTS IN MEXICO AND CANADA BUT ON THE CONTRARY DIRECTED THE OFFICER TO DESIGNATED POINTS WITHIN THE UNITED STATES, IN CONNECTION WITH JOINT CONFERENCES AND SUCH OTHER PLACES AS DEEMED NECESSARY INCLUDING MEXICO AND CANADA, RESPECTIVELY. CLEARLY THE DUTY IN MEXICO AND CANADA WAS ONLY INCIDENTAL TO THE DUTIES DIRECTED TO BE PERFORMED AND WHICH APPARENTLY RELATED TO THE OFFICER'S PRIMARY DUTIES IN THE UNITED STATES. PRIOR STATUTES WHICH AUTHORIZED FOREIGN SERVICE PAY HAVE NOT BEEN REGARDED AS APPLICABLE IN SUCH CASES AND NO REASON IS APPARENT IN EITHER THE PURPOSE OR INTENT OF SECTION 2 OF THE ACT OF JUNE 16, 1942, SUPRA, TO AUTHORIZE THE ADDITIONAL PAY UNDER SUCH CIRCUMSTANCES.

THAT DECISION FOLLOWED THE PRINCIPLES APPLIED IN DECISION OF MAY 25, 1942, 21 COMP. GEN. 1050, WHERE IT WAS POINTED OUT THAT WHILE THE LEGISLATIVE HISTORY OF SECTION 18 OF THE ACT OF MARCH 7, 1942--- SUBSEQUENTLY SUPERSEDED BY THE PRACTICALLY IDENTICAL PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1942, HERE INVOLVED--- SHOWED IT TO BE MUCH BROADER IN SCOPE THAN THE PRIOR REPEALED LAWS AUTHORIZING FOREIGN SERVICE PAY, THE DECISIONS OF THE COURTS AND ACCOUNTING OFFICERS UNDER THE PRIOR STATUTES WERE NOT WITHOUT SUBSTANTIAL BEARING IN DETERMINING THE MEANING OF THE TERMS EMPLOYED IN THE LATER STATUTE; AND IT WAS HELD, IN THE LIGHT OF SUCH DECISIONS, THAT PERSONNEL OF THE ARMY AIR FORCES WHO PERFORM RECONNAISSANCE OR PATROL FLIGHTS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES FROM, AND RETURNING TO, THEIR BASES IN THE UNITED STATES WOULD NOT BE ON FOREIGN DUTY WITHIN THE MEANING OF THE SAID ACT OF MARCH 7, 1942, WHETHER OR NOT THE PERIODS OF SUCH FLIGHTS EXTENDED MORE THAN ONE DAY.

IN TRANSMITTING YOUR REQUEST FOR A DECISION IN THE PRESENT CASE, THE FISCAL DIRECTOR, ARMY SERVICE FORCES, REFERS TO THE PRIOR DECISIONS AND STATES THAT HIS OFFICE IS UNABLE TO DETERMINE THE PROPER INTERPRETATION OF THE PHRASE "SHORT PERIODS" OF TIME. IN THAT CONNECTION, IT MAY BE NOTED THAT THE PRIOR REPEALED STATUTES AUTHORIZING ADDITIONAL PAY FOR PERSONNEL OF THE ARMY ON FOREIGN DUTY AND FOR PERSONNEL OF THE NAVY ON FOREIGN SHORE DUTY--- NAMELY, THE ACTS OF JUNE 30, 1902, 32 STAT. 507, 512, AND MAY 13, 1908, 35 STAT. 127, 128--- WERE PERMANENT PEACETIME PROVISIONS, WHEREAS THE PRESENT STATUTE IS A TEMPORARY WARTIME MEASURE FOR THE PURPOSE OF AUTHORIZING ADDITIONAL PAY FOR THOSE MEMBERS OF THE ARMED FORCES SUBJECTED TO THE CONDITIONS INCIDENT TO FOREIGN SERVICE DURING THE PRESENT WAR AND WHILE PROCEEDING TO AND RETURNING FROM SUCH DUTY. CF. 22 COMP. GEN. 1123. IN VIEW OF THAT PARTICULAR PURPOSE, RELATING TO PRESENT EMERGENCY CONDITIONS, THE DECISIONS UNDER THE PRIOR REPEALED STATUTES MAY NOT BE REGARDED AS WHOLLY DECISIVE OF THE MATTER AND I THINK THE CONCLUSION IS JUSTIFIED THAT EVEN WHERE DUTIES ACROSS THE BORDERS OF THE UNITED STATES ARE MERELY INCIDENTAL TO PRIMARY DUTIES ASSIGNED IN THIS COUNTRY, IF THE PERIOD A PERSON IS REQUIRED TO BE ABSENT FROM THIS COUNTRY ON SUCH INCIDENTAL DUTIES IS MORE THAN A WEEK, IT REASONABLY MAY BE REGARDED AS CONSTITUTING A PERIOD OF FOREIGN SERVICE WITHIN THE CONTEMPLATION OF SECTION 2 OF THE ACT OF JUNE 16, 1942, AND THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENTS OF THE ADDITIONAL PAY AUTHORIZED BY THE STATUTE ON THAT BASIS. HOWEVER, WHEN THE DUTY ASSIGNED BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IS NOT MERELY INCIDENTAL TO THE DUTIES IN THIS COUNTRY, IT WOULD APPEAR CLEARLY TO BE FOREIGN DUTY IRRESPECTIVE OF ITS TEMPORARY CHARACTER OR THE TIME INVOLVED. CF. 22 COMP. DEC. 701.

IN THE PRESENT CASE THE DUTY ASSIGNED WAS TO TRANSPORT OR FERRY AND DELIVER AIRPLANES TO PLACES IN FOREIGN COUNTRIES. SUCH DUTY WAS SEPARATE FROM AND NOT INCIDENTAL TO DUTIES ASSIGNED TO THIS COUNTRY. DECISION OF JUNE 21, 1943, SUPRA. ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.