B-42120, JUNE 26, 1944, 23 COMP. GEN. 978

B-42120, JUNE 26, 1944, 23 COMP. GEN. 978

PAY - ADDITIONAL - SEA AND FOREIGN SHORE DUTY - OFFICERS' RIGHTS AS AFFECTED BY SUSPENSION FROM DUTY. WHILE, GENERALLY, AN OFFICER OF THE ARMED FORCES IS ENTITLED TO THE PAY ATTACHED TO HIS OFFICE UNLESS IT IS FORFEITED BY LAW, EVEN THOUGH DURING A PARTICULAR PERIOD HE DOES NOT ACTUALLY PERFORM MILITARY SERVICE, ADDITIONAL PAY AUTHORIZED FOR THE PERFORMANCE OF PARTICULAR DUTIES IS NOT PAYABLE WHEN THE OFFICER IS SUSPENDED OR OTHERWISE REMOVED FROM THE PERFORMANCE OF SUCH DUTIES BY REASON OF AN OFFENSE OF WHICH HE SUBSEQUENTLY IS CONVICTED. THE INCREASE IN PAY AUTHORIZED FOR COMMISSIONED OFFICERS BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 "FOR ANY PERIOD OF SERVICE WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" DOES NOT ATTACH SOLELY TO THE OFFICER'S OFFICE; AND, TO DETERMINE THE OFFICER'S RIGHTS UNDER THE STATUTE, IT IS NECESSARY TO CONSIDER NOT ONLY WHETHER DURING THE PERIOD INVOLVED HE WAS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES BUT, ALSO, WHETHER HE WAS ON DUTY. THE PERIOD DURING WHICH A NAVY OFFICER OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IS REMOVED FROM DUTY, UNDER ARREST OR AWAITING ACTION OF A GENERAL COURT MARTIAL, BY REASON OF AN OFFENSE IN CONNECTION WITH WHICH HE SUBSEQUENTLY IS CONVICTED DOES NOT CONSTITUTE A PERIOD OF SERVICE "WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA," WITHIN THE MEANING OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO ENTITLE THE OFFICER TO THE INCREASE IN PAY AUTHORIZED BY SAID SECTION FOR SUCH PERIODS OF SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 26, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 18, 1944, REQUESTING DECISION WHETHER AN OFFICER OF THE NAVY WHO IS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IS ENTITLED, DURING A PERIOD HE IS SUSPENDED FROM DUTY, UNDER ARREST OR AWAITING ACTION OF A GENERAL COURT MARTIAL, TO HAVE HIS BASE PAY INCREASED BY 10 PERCENTUM PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360. THE SAID SECTION 2 PROVIDES:

SEC. 2. 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.

IT HAS BEEN HELD THAT AN OFFICER OF THE ARMED FORCES IS ENTITLED TO THE PAY ATTACHED TO HIS OFFICE UNLESS IT IS FORFEITED BY LAW EVEN THOUGH DURING A PARTICULAR PERIOD HE DOES NOT ACTUALLY PERFORM MILITARY SERVICE (13 OP. ATTY. GEN. 103; WALSH V. UNITED STATES, 43 C.1CLS. 225); BUT WITH RESPECT TO ADDITIONAL PAY AUTHORIZED FOR THE PERFORMANCE OF PARTICULAR DUTIES, THE RULE IS WELL ESTABLISHED THAT WHEN AN OFFICER IS SUSPENDED OR OTHERWISE REMOVED FROM THE PERFORMANCE OF SUCH DUTY BY REASON OF AN OFFENSE OF WHICH HE SUBSEQUENTLY IS CONVICTED, PAYMENT OF THE ADDITIONAL PAY IS NOT AUTHORIZED. DECISION DATED NOVEMBER 16, 1914, 71 MS. COMP. DEC. 655; 24 COMP. DEC. 351; 2 COMP. GEN. 622; CF. 25 COMP. DEC. 514; 1 COMP. GEN. 563. WHILE THE CITED DECISIONS RELATING TO PAYMENT OF INCREASED PAY FOR SEA AND FOREIGN DUTY CONSIDERED STATUTES IN EFFECT PRIOR TO THE CURRENT PROVISIONS AUTHORIZING AN INCREASE IN PAY FOR SUCH SERVICE, INSOFAR AS THE QUESTION NOW PRESENTED IS CONCERNED, THE STATUTES ARE SUBSTANTIALLY THE SAME. SEE THE ACT OF JUNE 30, 1902, 32 STAT. 507, 512, AND THE ACT OF MAY 13, 1908, 35 STAT. 127, 128, AS AMENDED.

THE INCREASE IN PAY FOR FOREIGN SERVICE AUTHORIZED BY THE ABOVE QUOTED PROVISION OF THE ACT OF JUNE 16, 1942, IS "FOR ANY PERIOD OF SERVICE WHILE ON * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA.' THE SAID INCREASE DOES NOT ATTACH SOLELY TO THE OFFICE OF AN OFFICER OF THE NAVY BUT IS AUTHORIZED ONLY FOR DUTY PERFORMED BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES. TO DETERMINE AN OFFICER'S RIGHTS UNDER THE STATUTE IT IS NECESSARY TO CONSIDER NOT ONLY WHETHER DURING THE PERIOD INVOLVED HE WAS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES BUT, ALSO, WHETHER HE WAS ON DUTY. SEE FARENHOLT V. UNITED STATES, 42 C.1CLS. 114.

WHERE A SUSPENSION FROM DUTY RESULTS BY REASON OF AN OFFENSE IN CONNECTION WITH WHICH AN OFFICER SUBSEQUENTLY IS CONVICTED, THE PERIOD DURING WHICH HE IS REMOVED FROM DUTY DOES NOT CONSTITUTE A PERIOD OF SERVICE "WHILE * * * DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JUNE 16, 1942. YOUR QUESTION IS ANSWERED ACCORDINGLY. CF. 25 COMP. DEC. 514.