B-39007, JANUARY 20, 1944, 23 COMP. GEN. 522

B-39007: Jan 20, 1944

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RENTAL AND PER DIEM ALLOWANCES - NAVY OFFICERS ASSIGNED TO DUTY IN FITTING OUT OR CONVERSION OF A VESSEL NAVY OFFICERS ASSIGNED TO DUTY AT NAVY YARDS OR OTHER SHORE STATIONS IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSEL WHEN COMMISSIONED ARE NOT TO BE REGARDED AS "ON SEA DUTY" UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS. PRIOR DECISIONS WILL NOT HEREAFTER BE REGARDED AS CONTROLLING TO THE EXTENT THAT THEY WERE PREDICATED ON THE ASSUMPTION THAT SUCH OFFICERS WERE ON SEA DUTY BY VIRTUE OF SUCH ASSIGNMENT. IN VIEW OF THE FACT THAT NAVY OFFICERS WHO ARE ASSIGNED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSELS WHEN PLACED IN COMMISSION ARE NOT REGARDED AS "ON SEA DUTY" UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS.

B-39007, JANUARY 20, 1944, 23 COMP. GEN. 522

RENTAL AND PER DIEM ALLOWANCES - NAVY OFFICERS ASSIGNED TO DUTY IN FITTING OUT OR CONVERSION OF A VESSEL NAVY OFFICERS ASSIGNED TO DUTY AT NAVY YARDS OR OTHER SHORE STATIONS IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSEL WHEN COMMISSIONED ARE NOT TO BE REGARDED AS "ON SEA DUTY" UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS. PRIOR DECISIONS WILL NOT HEREAFTER BE REGARDED AS CONTROLLING TO THE EXTENT THAT THEY WERE PREDICATED ON THE ASSUMPTION THAT SUCH OFFICERS WERE ON SEA DUTY BY VIRTUE OF SUCH ASSIGNMENT. IN VIEW OF THE FACT THAT NAVY OFFICERS WHO ARE ASSIGNED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSELS WHEN PLACED IN COMMISSION ARE NOT REGARDED AS "ON SEA DUTY" UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS, PAYMENT OF RENTAL ALLOWANCE TO SUCH OFFICERS, WITHOUT DEPENDENTS, IS AUTHORIZED FOR THE PERIOD PRIOR TO THE COMMISSIONING OF THE VESSEL, BUT NOT FOR ANY PERIOD AFTER THE VESSEL IS IN COMMISSION AND THE OFFICERS REPORT THEREON FOR DUTY. NAVY OFFICERS WHO ARE ASSIGNED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSEL WHEN PLACED IN COMMISSION MAY NOT BE REGARDED AS "ON SEA DUTY" UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS, AND, THEREFORE, QUARTERS MAY NOT BE HIRED FOR SUCH OFFICERS UNDER THE PROVISION IN THE NAVY DEPARTMENT'S ANNUAL APPROPRIATION ACTS AUTHORIZING THE HIRE OF QUARTERS FOR OFFICERS AND ENLISTED MEN "ON SEA DUTY" WHEN DEPRIVED OF THEIR QUARTERS ON BOARD SHIP DUE TO REPAIRS OR OTHER CONDITIONS RENDERING THEM UNINHABITABLE. NAVY OFFICERS ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD SUCH VESSEL WHEN PLACED IN COMMISSION MAY BE REGARDED AS IN A TEMPORARY DUTY STATUS AFTER ARRIVAL AT SUCH PLACE WHERE THE ANTICIPATED PERIOD OF DUTY IS LESS THAN 5 MONTHS SO AS TO ENTITLE THEM TO PAYMENT OF A PER DIEM ALLOWANCE, TO THE EXTENT OTHERWISE PROPER, WHILE ON SUCH DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 20, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 20, 1943, WITH ENCLOSURES, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH A LETTER FROM THE CHIEF OF NAVAL PERSONNEL, NAVY DEPARTMENT, DATED NOVEMBER 19, 1943, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENT, RELATIVE TO PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO OFFICERS ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS AND ON BOARD SUCH VESSELS WHEN IN COMMISSION.

YOUR DECISION IS REQUESTED ON THE QUESTION PRESENTED IN PARAGRAPH 6 OF THE LETTER FROM THE CHIEF OF NAVAL PERSONNEL, NAMELY, WHETHER CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE WHICH HAVE BEEN MADE UNDER ORDERS OF THE TYPE ENCLOSED WITH SAID LETTER AND WHICH WERE ISSUED PRIOR TO THE ADOPTION OF THE LANGUAGE IN ORDERS QUOTED IN PARAGRAPH 1 OF SAID LETTER.

YOUR FURTHER DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED IN PARAGRAPH 8 OF THE ENCLOSED ENDORSEMENT OF THE CHIEF OF BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO THE STATUS OF PERSONS IN THE NAVAL SERVICE, ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD WHEN PLACED IN COMMISSION, WITH RESPECT TO (A) PAYMENT OF PER DIEM ALLOWANCES WHILE TRAVELING AND WHILE ON SUCH TEMPORARY DUTY; (B) HIRE OF QUARTERS FOR OFFICERS AND MEN ON SEA DUTY DEPRIVED OF THEIR QUARTERS ON BOARD SHIP; AND (C) PAYMENT OF RENTAL ALLOWANCE TO OFFICERS WITHOUT DEPENDENTS (1) WHERE THE VESSEL IS IN COMMISSION, AND (2) WHERE THE VESSEL IS NOT IN COMMISSION.

THE ACCOMPANYING LETTER FROM THE CHIEF OF NAVAL PERSONNEL, DATED NOVEMBER 19. 1943, READS:

1. ORDERS PRESENTLY ARE BEING ISSUED TO OFFICERS ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS AND ON BOARD SUCH VESSELS WHEN IN COMMISSION, WHICH PROVIDE FOR PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE. THE WORDING OF SUCH TEMPORARY DUTY ORDERS, INSOFAR AS RELATES TO THE QUESTION OF PER DIEM IS AS FOLLOWS:

"DURING THE NECESSARY TRAVEL TIME AND WHILE ON TEMPORARY DUTY, YOU WILL BE ENTITLED TO TRANSPORTATION AND A PER DIEM OF $7.00 IN LIEU OF SUBSISTENCE FOR A PERIOD NOT EXCEEDING 90 DAYS, EXCEPT WHILE OCCUPYING GOVERNMENT QUARTERS ASHORE WHEN THE PER DIEM WILL BE $3.00, AND EXCEPT WHILE IN A VESSEL OR WHILE ON AUTHORIZED DELAY WHEN NO PER DIEM WILL BE ALLOWED.'

2.PRIOR TO THE ISSUANCE OF ORDERS CONTAINING THE PARAGRAPH QUOTED ABOVE, NUMEROUS ORDERS TO DUTY IN CONNECTION WITH FITTING OUT OR CONVERSION OF VESSELS WERE ISSUED WHICH CONTAINED THE FOLLOWING WITH RESPECT TO PER DIEM:

"WHILE TRAVELING OR WHILE ON TEMPORARY DUTY EN ROUTE TO YOUR NEW PERMANENT STATION, YOU WILL BE ENTITLED TO TRANSPORTATION AND A PER DIEM OF $7.00 IN LIEU OF SUBSISTENCE, EXCEPT WHILE IN A VESSEL. WHILE OCCUPYING GOVERNMENT QUARTERS, THE PER DIEM WILL BE $3.00.' IN A VIEW OF THE FIRST ORDERS ISSUED OF THE TYPE LAST REFERRED TO, THE DUTY IN CONNECTION WITH FITTING OUT WAS NOT SPECIFICALLY DESIGNATED AS TEMPORARY, ALTHOUGH IT WAS INTENDED TO BE, AND ACTUALLY IS TEMPORARY DUTY, AS IN THE ORDERS ISSUED TO COMMANDER EVERETT W. ABDILL, USN, ( ENCLOSURE (A) ).

3. IN CONNECTION WITH ORDERS OF THE TYPE ISSUED TO COMMANDER ABDILL DISBURSING OFFICERS HAVE IN SOME INSTANCES REFUSED TO MAKE PAYMENT OF PER DIEM FOR ANY PERIOD BEYOND THAT REQUIRED FOR TRAVEL TO THE PLACE OF FITTING OUT, BECAUSE OF MISUNDERSTANDING OF THE INTENT OF THE PHRASE, ,WHILE ON TEMPORARY DUTY EN ROUTE TO YOUR NEW PERMANENT STATION.' IT WAS INTENDED THAT SUCH ORDERS SHOULD ENTITLE THE OFFICERS TO A PER DIEM FOR A PERIOD NOT IN EXCESS OF 90 DAYS WHILE ON DUTY IN CONNECTION WITH THE FITTING OUT OF THEIR SHIPS, UP TO, BUT NOT INCLUDING, THE DATE OF COMMISSIONING AND THAT THEY SHOULD NOT BE CONSIDERED AS HAVING ARRIVED AT THEIR PERMANENT STATIONS UNTIL SUCH TIME AS THE VESSELS WERE ACTUALLY PLACED IN COMMISSION.

4. IT SHOULD BE NOTED THAT OFFICERS ON DUTY IN CONNECTION WITH FITTING OUT OR CONVERSION OF VESSELS ARE NOT IN ANY SENSE PERMANENTLY ATTACHED TO THEM, SINCE THEY ARE NOT QUARTERED ABOARD AND ARE NOT ENTITLED TO ADDITIONAL PAY AS FOR PERSONNEL ON SEA DUTY. THEY ARE IN PRECISELY THE SAME SITUATION AS OFFICERS DETACHED FROM THEIR LAST PERMANENT STATION WHO ARE PERFORMING TEMPORARY DUTY ASHORE UNDER ANY OTHER CIRCUMSTANCES EN ROUTE TO A NEW PERMANENT STATION, IN THAT THEY ARE OBLIGED TO MAINTAIN THEMSELVES AWAY FROM THEIR PERMANENT STATION. IN THIS CONNECTION, ATTENTION IS INVITED TO ARTICLE 2505-5, U. S. NAVY TRAVEL INSTRUCTIONS, WHICH DEFINES DUTY IN CONNECTION WITH THE FITTING OUT OF A VESSEL AS TEMPORARY DUTY UNLESS THE TIME INVOLVED IS FIVE MONTHS OR MORE, AND WHICH PROHIBITS THE FURNISHING OF TRANSPORTATION FOR DEPENDENTS TO THE PLACE OF FITTING OUT UNLESS THE FITTING OUT WILL REQUIRE FIVE MONTHS OR MORE. UNDER PRESENT CONDITIONS, IT IS NOT ANTICIPATED THAT THE FITTING OUT OF VESSELS WILL REQUIRE FIVE MONTHS, AND TRAVEL OF DEPENDENTS IN CONNECTION WITH FITTING OUT IS NOT NOW BEING AUTHORIZED UNLESS A HOME YARD HAS ALREADY BEEN DESIGNATED AND THE OFFICER REPORTS ABOARD WHEN COMMISSIONED.

5. SINCE THE LARGE MAJORITY OF OFFICERS ASSIGNED TO DUTY IN CONNECTION WITH FITTING OUT OF VESSELS ARE OBLIGED TO MAINTAIN THEMSELVES IN THE VICINITY OF CONGESTED SHIPYARDS WHERE LIVING COSTS ARE HIGH, AND SINCE THEY ARE ALSO OBLIGED TO MAINTAIN SEPARATE ESTABLISHMENTS FOR THEIR DEPENDENTS DURING THIS PERIOD, THE PAYMENT OF PER DIEM IN THESE CASES IS CONSIDERED NECESSARY, AND THE ORDERS OF THE TYPE ENCLOSED WERE WRITTEN WITH THE INTENTION THAT SUCH PAYMENTS BE MADE.

6. IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT THE DECISION OF THE COMPTROLLER GENERAL BE OBTAINED AS TO WHETHER CREDIT WILL BE ALLOWED IN THE AMOUNTS OF DISBURSING OFFICERS FOR PAYMENTS OF PER DIEM UNDER ORDERS OF THE TYPE ENCLOSED, WHICH HAVE BEEN ISSUED PRIOR TO THE ADOPTION OF THE LANGUAGE IN ORDERS AS QUOTED IN PARAGRAPH ONE HEREOF.

THE ENDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS DATED DECEMBER 14, 1943, IS AS FOLLOWS:

1. IT WILL BE NOTED FROM PARAGRAPH 3 OF THE BASIC LETTER THAT THE ORDERS THERE INVOLVED CONTEMPLATE PAYMENT OF PER DIEM TO THE OFFICER UNTIL HIS SHIP IS PLACED IN COMMISSION. THIS IS ON THE BASIS THAT HIS ORDERS "ON BOARD THAT VESSEL * * * WHEN PLACED IN COMMISSION" PRECLUDE HIM FROM REPORTING TO HIS PERMANENT STATION ABOARD THE VESSEL UNTIL SUCH TIME AS THE VESSEL IS PLACED IN COMMISSION IN ONE STATUS OR ANOTHER. IT WILL BE NOTICED, ALSO, THAT PARAGRAPH 4 OF THE BASIC LETTER STATES THAT OFFICERS ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS ARE NOT ENTITLED TO ADDITIONAL PAY AS FOR PERSONNEL ON SEA DUTY.

2. IN CONNECTION WITH THE FOREGOING, REFERENCE IS MADE TO SEVERAL RECENT DECISIONS OF THE COMPTROLLER GENERAL WHICH INDICATE A VIEW THAT PERSONNEL ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS ARE ON SEA DUTY, REGARDLESS OF THE STATUS OF THE VESSEL AND NOTWITHSTANDING THEY MAY BE UNDER THE MILITARY JURISDICTION OF THE COMMANDING OFFICER OF A SHORE ACTIVITY, WHO WILL NOT BE IN COMMAND OF THE VESSEL AFTER IT IS COMMISSIONED. IT IS NOT CLEAR FROM THE DECISIONS REFERRED TO THAT THE FACTS IN THOSE CASES WERE FULLY DEVELOPED, AND IT IS BELIEVED THAT A RECONSIDERATION OF THOSE DECISIONS IN CONNECTION WITH THE QUESTION PRESENTED IN THE BASIC LETTER WOULD BE HELPFUL IN SETTLING A NUMBER OF QUESTIONS WHICH HAVE ARISEN RESPECTING ORDERS TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS.

3. ORDERS OF THE TYPE HERE INVOLVED CONTEMPLATE THAT THE OFFICER WILL REPORT FIRST TO SOME SHORE ACTIVITY, SUCH AS THE COMMANDANT OF A NAVY YARD OR NAVAL DISTRICT, OR THE SUPERVISOR OF SHIPBUILDING AT A PARTICULAR SHIPYARD OR PORT. AFTER COMPLETION OF THE TEMPORARY DUTY UNDER THE COMMANDING OFFICER OF THE SHORE ACTIVITY, THE OFFICER IS DETACHED FROM THE SHORE ACTIVITY AND REPORTS TO THE COMMANDING OFFICER OF THE VESSEL. THE ACTS OF REPORTING TO THE SHORE ACTIVITY, BEING DETACHED FROM THE SHORE ACTIVITY, AND REPORTING TO THE COMMANDING OFFICER OF THE VESSEL, ARE SEPARATE AND DISTINCT, AND EACH IS SHOWN BY SEPARATE ENDORSEMENT ON THE ORDERS. IN OTHER WORDS, AN ORDER TO DUTY IN CONNECTION WITH THE CONVERSION OR FITTING OUT OF A VESSEL AND ON BOARD THAT VESSEL WHEN PLACED IN COMMISSION IS REALLY TWO ORDERS IN ONE--- FIRST, AN ORDER TO REPORT TO A SHORE ACTIVITY, AND SECOND, AN ORDER TO REPORT ON BOARD WHEN THE VESSEL IS PLACED IN COMMISSION.

4. IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF 28 SEPTEMBER 1943, B-37087, IT WAS HELD THAT QUARTERS COULD BE HIRED FOR OFFICERS ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OF A VESSEL, ON THE BASIS THAT SUCH OFFICERS WERE ON SEA DUTY WITHIN THE MEANING OF THE AUTHORIZATION IN THE NAVAL APPROPRIATION ACT, 1944, FOR HIRE OF QUARTERS FOR OFFICERS AND MEN ON SEA DUTY WHO ARE TEMPORARILY DEPRIVED OF THEIR QUARTERS ON BOARD SHIP. THE PRIMARY QUESTION PRESENTED TO THE COMPTROLLER GENERAL IN THAT CASE WAS WHETHER QUARTERS COULD BE HIRED FOR THE OFFICERS CONCERNED UNDER A PROVISION IN THE APPROPRIATION ACT FOR HIRE OF QUARTERS "AS AUTHORIZED BY THE SECRETARY TO MEET EMERGENCY CONDITIONS.' AS AN ALTERNATIVE, A DECISION WAS REQUESTED AS TO WHETHER QUARTERS COULD BE HIRED BY REASON OF "SEA DUTY" STATUS, CITING THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF 15 JUNE, 1943, B-34358. IT WAS HELD THAT THE FACTS WERE ALMOST IDENTICAL WITH THOSE CONSIDERED IN THE DECISION OF 15 JUNE 1943, AND THAT, SINCE THE OFFICERS WERE ON "SEA DUTY" AS THAT STATUS WAS DEFINED IN SAID DECISION, QUARTERS COULD BE HIRED FOR THEM ON THAT BASIS WITHOUT THE NECESSITY OF CONSIDERING WHETHER QUARTERS COULD BE HIRED UNDER AN AUTHORIZATION OF THE SECRETARY TO MEET EMERGENCY CONDITIONS.

5. IN THE DECISION OF 28 SEPTEMBER 1943, DOUBT WAS EXPRESSED AS TO THE REASON FOR THE NAVY DEPARTMENT'S SUBMISSION OF THE QUESTION, IN VIEW OF THE SIMILARITY BETWEEN THAT CASE AND THE CASE CONSIDERED IN THE DECISION OF 15 JUNE 1943. PRESUMABLY, THE DOUBT IN THE MATTER WAS AS TO WHETHER THE DECISION OF 15 JUNE 1943 WAS APPLICABLE TO ALL ORDERS TO DUTY IN CONNECTION WITH THE FITTING OUT OF VESSELS, OR WHETHER IT WAS APPLICABLE ONLY TO THE PECULIAR FACTS OF THAT CASE, WHERE THE NAVY DEPARTMENT HAD FIRST HIRED QUARTERS FOR THE OFFICERS CONCERNED AND THEN HAD REFUSED PAYMENT UNDER THE LEASE ON THE GROUND THAT THE OFFICERS WERE NOT ON SEA DUTY AND HIRE OF QUARTERS WAS THEREFORE, UNAUTHORIZED. IT IS NOTED THAT THE DECISION OF 15 JUNE 1943 APPEARS TO HAVE BEEN BASED, AT LEAST IN PART, UPON THE PREMISE THAT THE OFFICERS THERE INVOLVED WERE ON SEA DUTY AS THAT TERM IS DEFINED IN ALNAV 131, ISSUED 26 JUNE 1942, UNDER THE AUTHORITY OF THE SECRETARY OF THE NAVY TO DEFINE "SEA DUTY" FOR PAY PURPOSES. HOWEVER, ONE OF THE CONDITIONS WHICH MUST BE MET TO ACQUIRE A SEA DUTY STATUS UNDER THE ALNAV IS THAT THE SERVICE BE "PERFORMED IN A VESSEL.' WHILE THE ALNAV PROVIDES THAT SUCH SERVICE SHALL INCLUDE "PERIODS OF TEMPORARY ADDITIONAL DUTY" IN SUCH VESSEL EVEN THOUGH PRIMARY DUTY IS "SHORE DUTY," THIS PROVISION DOES NOT AUTHORIZE ADDITIONAL SEA DUTY PAY FOR PERSONNEL ON TEMPORARY DUTY IN CONNECTION WITH FITTING OUT OF A VESSEL UNLESS SUCH PERSONNEL ACTUALLY HAVE REPORTED TO THE COMMANDING OFFICER OF THE VESSEL FOR DUTY ON BOARD, SO THAT THEIR SERVICE CAN BE CONSIDERED AS "PERFORMED IN A VESSEL.' THUS, IN APPLYING THE PROVISIONS OF ALNAV 131-42 TO THE FACTUAL SITUATION DESCRIBED IN PARAGRAPH 3 HEREOF, THE OFFICER WOULD NOT BE CREDITED WITH ADDITIONAL PAY FOR SEA DUTY UNDER SUCH PROVISIONS UNLESS AND UNTIL THE VESSEL WAS PLACED IN COMMISSION IN SOME STATUS AND IT WAS SHOWN BY ENDORSEMENTS ON HIS ORDERS THAT HE HAD BEEN DETACHED FROM DUTY UNDER THE COMMANDING OFFICER OF THE SHORE ACTIVITY AND HAD REPORTED FOR DUTY UNDER THE COMMANDING OFFICER OF THE VESSEL.

6. IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF 1 DECEMBER 1941, B- 20921, 21 COMP. GEN. 499, IT WAS HELD THAT AN OFFICER ORDERED TO DUTY "IN CONNECTION WITH THE FITTING OUT OF THE U.S.S. ZEILIN AND ON BOARD WHEN COMMISSIONED" WAS IN A SEA DUTY STATUS, NOTWITHSTANDING THE ORDERS REQUIRED THE OFFICER TO REPORT TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT. THE CONCLUSION WAS BASED ON THE PREMISE THAT THE VESSEL WAS COMMISSIONED IN ORDINARY, BUT IT WAS INDICATED THAT WHETHER OR NOT THE VESSEL WAS IN COMMISSION WAS NOT MATERIAL IN DETERMINING THE OFFICER'S SEA DUTY STATUS. THIS DECISION APPEARS TO HAVE BEEN BASED UPON DECISIONS OF THE COURTS TO THE EFFECT THAT SEA SERVICE NEED NOT BE PERFORMED ON THE HIGH SEAS, NOR IN A VESSEL CAPABLE OF BEING EMPLOYED IN NAVIGATION. HOWEVER, IT IS CONSIDERED THAT IN ORDER FOR AN OFFICER OF THE NAVY ORDERED TO DUTY IN CONNECTION WITH FITTING OUT A VESSEL TO ACQUIRE A SEA DUTY STATUS, IT IS NECESSARY THAT THE VESSEL BE PLACED IN COMMISSION OR IN SERVICE IN ONE STATUS OR ANOTHER AS AUTHORIZED BY ARTICLE 637, U.S. NAVY REGULATIONS 1920. A VESSEL WHICH IS "OUT OF COMMISSION, NOT IN SERVICE" WITHIN THE MEANING OF SAID ARTICLE DOES NOT HAVE THE STATUS OF A VESSEL OF THE NAVY FOR ADMINISTRATIVE PURPOSES, AS SHOWN BY ARTICLES 638 AND 1510, U.S. NAVY REGULATIONS. 7. ORDERS OF THE TYPE HERE INVOLVED CONTEMPLATE THAT THE OFFICERS WILL REPORT ABOARD TO THE COMMANDING OFFICER AS SOON AS THE VESSEL IS PLACED IN COMMISSION. THAT IS, THE COMMISSIONING OF THE VESSEL AND THE REPORTING ABOARD ORDINARILY OCCUR AT THE SAME TIME. IT IS BELIEVED, THEREFORE, THAT AN OFFICER WHO REPORTS FOR DUTY IN CONNECTION WITH THE FITTING OUT OF A VESSEL WHICH IS "IN COMMISSION" IN ANY FORM SHOULD BE CONSIDERED AS ON SEA DUTY, AND THAT AN OFFICER WHO REPORTS FOR DUTY IN CONNECTION WITH THE FITTING OUT OF A VESSEL WHICH IS "OUT OF COMMISSION" SHOULD NOT BE CONSIDERED AS ON SEA DUTY.

8. IN VIEW OF THE DOUBT WHICH EXISTS IN CONNECTION WITH THIS MATTER, IT IS REQUESTED THAT, IN ADDITION TO THE SPECIFIC QUESTION PRESENTED BY THE CHIEF OF NAVAL PERSONNEL IN THE BASIC LETTER, THE COMPTROLLER GENERAL BE REQUESTED TO RENDER A DECISION ALSO ON THE FOLLOWING QUESTION:

WHAT IS THE STATUS OF PERSONS IN THE NAVAL SERVICE, ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD WHEN PLACED IN COMMISSION, WITH RESPECT TO (A) PAYMENT OF PER DIEM ALLOWANCES WHILE TRAVELING AND WHILE ON SUCH TEMPORARY DUTY; (B) HIRE OF QUARTERS FOR OFFICERS AND MEN ON SEA DUTY DEPRIVED OF THEIR QUARTERS ON BOARD SHIP; AND (C) PAYMENT OF RENTAL ALLOWANCE TO OFFICERS WITHOUT DEPENDENTS (1) WHERE THE VESSEL IS IN COMMISSION, AND (2) WHERE THE VESSEL IS NOT IN COMMISSION?

THE MATTER HAS BEEN GIVEN CAREFUL CONSIDERATION AND THERE APPEARS NO REASON TO DISAGREE WITH THE VIEWS OF YOUR DEPARTMENT THAT OFFICERS ASSIGNED TO DUTY AT NAVY YARDS OR OTHER LAND STATIONS IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS AND ON BOARD SUCH VESSELS WHEN COMMISSIONED ARE NOT ON SEA DUTY UNTIL THE VESSELS ARE COMMISSIONED AND THE OFFICERS REPORT ON BOARD FOR DUTY. CF. 21 COMP. GEN. 60. THE DECISION OF DECEMBER 1, 1941, 21 COMP. GEN. 499, WAS ON THE BASIS THAT THE OFFICER HAD REPORTED TO THE COMMANDING OFFICER OF THE VESSEL AND WAS ATTACHED TO THE VESSEL DURING THE PERIOD IN QUESTION. FOLLOWING THAT DECISION, THE DECISIONS OF JUNE 15, 1943, B 34358, AND SEPTEMBER 28, 1943, B-37087, WERE ON THE BASIS THAT OFFICERS ASSIGNED TO DUTY IN CONNECTION WITH THE FITTING OUT OF CERTAIN VESSELS WERE ATTACHED TO SUCH VESSELS AND, THEREFORE, PROPERLY WERE TO BE REGARDED AS ON SEA DUTY IN THE LIGHT OF LONG ESTABLISHED JUDICIAL PRECEDENTS THAT DUTY IN VESSELS EMPLOYED BY AUTHORITY OF LAW IS SEA DUTY, ALTHOUGH NOT UPON THE HIGH SEAS AND NOT IN CONDITION PRESENTLY TO GO TO SEA. HOWEVER, IN VIEW OF THE EXPLANATION OF THE MATTER NOW SUBMITTED, IT SEEMS CLEAR THAT OFFICERS ORDERED TO DUTY AT A SHORE STATION IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND TO DUTY ON SUCH VESSEL WHEN COMMISSIONED ARE NOT ATTACHED TO THE VESSEL AND ARE NOT ON DUTY "IN THE VESSEL," AS SUCH, BUT ARE ON DUTY AT THE SHORE STATION UNTIL THE VESSEL IS COMMISSIONED AND THEY REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS. ACCORDINGLY, THE PRIOR DECISIONS WILL NOT HEREAFTER BE REGARDED AS CONTROLLING TO THE EXTENT THAT THEY ARE PREDICATED ON THE ASSUMPTION THAT THE OFFICERS INVOLVED WERE ON SEA DUTY BY VIRTUE OF BEING ASSIGNED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF VESSELS AND ON BOARD SUCH VESSELS WHEN COMMISSIONED.

IT FOLLOWS, WITH RESPECT TO THE QUESTIONS STATED IN THE LAST PARAGRAPH OF THE ENDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS--- INSOFAR AS THE HIRE OF QUARTERS AND THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS WITHOUT DEPENDENTS ARE CONCERNED--- THAT AS OFFICERS ORDERED TO DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL AND ON BOARD WHEN PLACED IN COMMISSION ARE NOT TO BE REGARDED AS ON SEA DUTY UNTIL THE VESSEL IS PLACED IN COMMISSION AND THE OFFICERS REPORT FOR DUTY THEREON PURSUANT TO THEIR ORDERS, THERE WOULD BE NO AUTHORITY TO HIRE QUARTERS FOR THEM UNDER THE ANNUAL APPROPRIATION PROVISIONS FOR THE HIRE OF QUARTERS FOR OFFICERS AND MEN "ON SEA DUTY" AT SUCH TIMES AS THEY MAY BE DEPRIVED OF THEIR QUARTERS ON BOARD SHIP DUE TO REPAIRS OR OTHER CONDITIONS WHICH MAY RENDER THEM UNINHABITABLE, BUT, NOT BEING ON SEA DUTY, SUCH OFFICERS, WITHOUT DEPENDENTS, WOULD BE ENTITLED TO RENTAL ALLOWANCE GENERALLY ON THE SAME BASIS AS OTHER OFFICERS, WITHOUT DEPENDENTS, NOT ON SEA DUTY.

HOWEVER, THE RIGHT OF OFFICERS UNDER ORDERS OF THE GENERAL CHARACTER DESCRIBED TO A PER DIEM PRIOR TO REPORTING FOR DUTY ON THE VESSEL DOES NOT DEPEND PRIMARILY ON WHETHER THE DUTY IN CONNECTION WITH FITTING OUT OR CONVERTING THE VESSEL IS SEA DUTY OR SHORE DUTY, BUT ON WHETHER SUCH OFFICERS PROPERLY MAY BE REGARDED AS IN A TRAVEL STATUS FOR WHICH A PER DIEM IS PAYABLE UNDER PERTINENT STATUTES, REGULATIONS AND THE PROVISIONS OF THEIR ORDERS.

THE ORDERS OF SEPTEMBER 10, 1943, TO COMMANDER EVERETT W. ABDILL, U.S. NAVY, INSOFAR AS MATERIAL, AS MODIFIED BY ORDERS DATED SEPTEMBER 11, 1943, ARE AS FOLLOWS:

( ORDERS OF SEPTEMBER 10, 1943).

2. WHEN DIRECTED BY THE CHIEF OF NAVAL PERSONNEL, ON OR ABOUT 15 SEPTEMBER 1943, YOU WILL REGARD YOURSELF DETACHED FROM DUTY IN THE BUREAU OF NAVAL PERSONNEL, NAVY DEPARTMENT, AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; WILL PROCEED AND REPORT TO THE COMMANDER AMPHIBIOUS TRAINING COMMAND, ATLANTIC FLEET, FOR TEMPORARY DUTY FOR A PERIOD OF ABOUT ONE WEEK.

3. UPON THE COMPLETION OF THIS TEMPORARY DUTY YOU WILL REGARD YOURSELF DETACHED; WILL PROCEED TO NEW YORK, N.Y., AND REPORT TO THE COMMANDANT, NAVY YARD, FOR DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. CLAY, AND ON BOARD THAT VESSEL AS COMMANDING OFFICER WHEN PLACED IN FULL COMMISSION.

4. REPORT ALSO BY LETTER TO THE COMMANDANT THIRD NAVAL DISTRICT, FOR THIS DUTY.

5. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

(ORDER OF SEPTEMBER 11, 1943).

1. IN CARRYING OUT YOUR ORDERS OF 10 SEPTEMBER 1943, WHILE TRAVELING OR WHILE ON TEMPORARY DUTY EN ROUTE TO YOUR NEW PERMANENT STATION, YOU WILL BE ENTITLED TO TRANSPORTATION AND A PER DIEM OF $7.00 IN LIEU OF SUBSISTENCE, EXCEPT WHILE IN A VESSEL. WHILE OCCUPYING GOVERNMENT QUARTERS, THE PER DIEM WILL BE $3.00.

AUTHORITY FOR PRESCRIBING A PER DIEM ALLOWANCE FOR PERSONNEL OF THE MILITARY AND NAVAL SERVICES IS CONTAINED IN THE SECOND PARAGRAPH OF SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, 365, AS FOLLOWS:

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7.00 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6.00 (INCREASED TO $7.00 BY THE PROVISIONS OF SECTION 119 OF THE NAVAL APPROPRIATIONS ACT, 1944, PUBLIC LAW 92, APPROVED JUNE 26, 1943), IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. * * *

IN THE ACT OF JUNE 26, 1943, 57 STAT. 204, PUBLIC LAW 92, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1944, UNDER THE HEADING " TRANSPORTATION AND RUITING," PROVISION IS MADE AS FOLLOWS:

THAT THE SECRETARY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE IN ACCORDANCE WITH LAW, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM, WHETHER OR NOT ORDERS ARE GIVEN TO OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS. * * *

THE PRESCRIBING OF A PER DIEM ALLOWANCE IS EXPRESSLY LIMITED TO PERIODS DURING WHICH OFFICERS ARE TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IT HAS NOT BEEN QUESTIONED THAT SUCH PROVISION CONTEMPLATES AND INCLUDES PERIODS OF TEMPORARY DUTY AWAY FROM AN OFFICER'S PERMANENT STATION AND, ALSO, PERIODS OF TEMPORARY DUTY EN ROUTE TO A NEW PERMANENT STATION. CONSIDERING THE BASIC PURPOSE FOR THE ALLOWANCE OF SUBSISTENCE EXPENSES FOR TRAVEL OR A PER DIEM IN LIEU THEREOF TO COMPENSATE AN OFFICER OR EMPLOYEE FOR THE INCREASED EXPENSES IMPOSED ON HIM WHILE TEMPORARILY REQUIRED TO MAINTAIN HIMSELF AWAY FROM A PERMANENT DUTY STATION, NO REASON FOR A DIFFERENT RULE IS PERCEIVED BECAUSE THE TEMPORARY DUTY HAPPENS TO BE PERFORMED AT A PLACE WHERE THE OFFICER SUBSEQUENTLY IS TO REPORT ON BOARD A VESSEL FOR SEA DUTY. SO FAR AS THE CHARACTER OF THE DUTY PRIOR TO REPORTING ON BOARD IS CONCERNED IT IS THE SAME WHETHER THE OFFICER REPORTS ON BOARD FOR SEA DUTY OR FOR FURTHER TRANSPORTATION.

ARTICLE 2505 (5 (A) AND (C) ( OF THE U.S. NAVY TRAVEL INSTRUCTIONS PROVIDED AS FOLLOWS:

(A) PERSONNEL ORDERED TO DUTY IN CONNECTION WITH FITTING OUT OR CONVERSION OF A VESSEL MAKE A PERMANENT CHANGE OF STATION, AND TRANSPORTATION OF DEPENDENTS IS AUTHORIZED IF THE DUTY AT SUCH PLACE SUBSEQUENT TO DATE OF REPORTING THEREAT IS FIVE MONTHS OR MORE PRIOR TO COMPLETION OF THE VESSEL WHETHER OR NOT A HOME YARD HAS BEEN ASSIGNED TO SUCH VESSEL.

(C) IF THE LENGTH OF DUTY AT THE PLACE OF FITTING OUT OR CONVERSION IS LESS THAN FIVE MONTHS PRIOR TO COMPLETION AND NO HOME YARD HAS BEEN ASSIGNED, TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED UNTIL A HOME YARD IS ASSIGNED, AND THEN ONLY ON THE BASIS OF TRAVEL FROM THE OLD PERMANENT DUTY STATION DIRECT TO THE HOME YARD.

THE PURPORT OF PARAGRAPH 5 (A) OF THE ARTICLE, STANDING ALONE, IS NOT ENTIRELY CLEAR AND, READ WITHOUT REFERENCE TO PARAGRAPH 5 (C), MIGHT BE VIEWED AS INTENDING TO PRESCRIBE THE PLACE OF FITTING OUT OR CONVERSION AS AN OFFICER'S PERMANENT DUTY STATION IN ALL CASES, SO AS TO PRECLUDE THE AUTHORIZATION OF A PER DIEM AFTER THE OFFICER ARRIVED AT SUCH PLACE, FOR THE REASON THAT HE WOULD HAVE COMPLETED TRAVEL TO HIS DESIGNATED POST OF DUTY. HOWEVER, INASMUCH AS SUCH A PERMANENT STATION ASSIGNMENT IPSO FACTO ORDINARILY WOULD ENTITLE AN OFFICER TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE WITHOUT THE DELAY OF FIVE MONTHS, IT IS EVIDENT THAT PARAGRAPH 5 (A) WAS NOT SO INTENDED BUT WAS FOR THE PURPOSE OF FIXING A MINIMUM OF FIVE MONTHS' CONTEMPLATED DUTY AT THE PLACE OF FITTING OUT OR CONVERSION AS A CONDITION TO SUCH PLACE BEING REGARDED AS THE OFFICER'S PERMANENT STATION TO AUTHORIZE THE TRANSPORTATION OF DEPENDENTS TO THAT PLACE; SO THAT IF THE CONTEMPLATED PERIOD OF SUCH DUTY SHOULD BE LESS THAN FIVE MONTHS IT WOULD BE REGARDED AS TEMPORARY DUTY WHICH WOULD NOT ENTITLE THE OFFICER TO TRANSPORTATION OF DEPENDENTS TO SUCH PLACE AT GOVERNMENT EXPENSE. THIS IS CLARIFIED BY PARAGRAPH 5 (C). SUCH LIMITATION APPEARS REASONABLE AND IT IS CONCLUDED THAT WHERE THE ANTICIPATED PERIOD OF SUCH DUTY IS LESS THAN FIVE MONTHS IT LIKEWISE MAY BE REGARDED AS OF A TEMPORARY NATURE SO AS TO AUTHORIZE THE PAYMENT OF A PER DIEM UNDER THE PROVISIONS OF THE STATUTES QUOTED ABOVE. WHILE THE AMENDED ORDERS ISSUED TO COMMANDER ABDILL DO NOT IN SPECIFIC TERMS AUTHORIZE A PER DIEM FOR THE DUTY ORDERED AT THE NEW YORK NAVY YARD, THEY DO AUTHORIZE A PER DIEM "WHILE ON TEMPORARY DUTY EN ROUTE TO YOUR NEW PERMANENT STATION * * * EXCEPT WHILE IN A VESSEL" AND IN VIEW OF THE EXPLANATION OF THE CHIEF OF NAVAL PERSONNEL THAT ORDERS SO WORDED IN SUCH CASES WERE INTENDED TO ENTITLE THE OFFICERS TO A PER DIEM FOR A PERIOD NOT IN EXCESS OF 90 DAYS WHILE ON DUTY IN CONNECTION WITH THE FITTING OUT OF THEIR SHIPS, UP TO, BUT NOT INCLUDING, THE DATE OF COMMISSIONING (WHICH SHIPS WOULD THEN, IN EFFECT, BECOME THEIR DESIGNATED POSTS OF DUTY), SUCH ORDERS WILL BE GIVEN THAT EFFECT IN THE AUDIT OF ACCOUNTS BY THIS OFFICE. ACCORDINGLY, THE QUESTION CONTAINED IN PARAGRAPH 6 OF THE LETTER FROM THE CHIEF OF NAVAL PERSONNEL IS ANSWERED IN THE AFFIRMATIVE.

THE QUESTIONS STATED IN THE EIGHTH PARAGRAPH OF THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS ARE ANSWERED AS FOLLOWS:

QUESTION (A). IF THE ANTICIPATED PERIOD OF DUTY BE NOT IN EXCESS OF FIVE MONTHS, THE PERSONS MAY BE REGARDED AS IN A TEMPORARY DUTY STATUS AND PER DIEM WOULD BE AUTHORIZED TO THE EXTENT OTHERWISE PROPER.

QUESTION (B). SUCH PERSONS WOULD NOT BE ON SEA DUTY AND THE HIRE OF QUARTERS FOR OFFICERS AND MEN ON THAT BASIS WOULD NOT BE AUTHORIZED.

QUESTION (C). NOT BEING ON SEA DUTY, THE PAYMENT OF RENTAL ALLOWANCE TO OFFICERS WITHOUT DEPENDENTS WOULD BE AUTHORIZED, IF OTHER CONDITIONS ARE MET, PRIOR TO COMMISSION OF THE VESSEL; BUT THE PAYMENT OF SUCH ALLOWANCE WOULD NOT BE AUTHORIZED AFTER THE VESSEL IS IN COMMISSION AND THE OFFICER, PURSUANT TO HIS ORDERS, REPORTS FOR DUTY THEREON.