B-5280, SEPTEMBER 16, 1939, 19 COMP. GEN. 370

B-5280, SEPTEMBER 16, 1939, 19 COMP. GEN. 370

QUARTERS - RENTAL ALLOWANCE - "SEA DUTY" A NAVAL OFFICER ASSIGNED TO DUTY IN COMMAND OF A VESSEL OF THE NAVY, MUST BE REGARDED AS ON SEA DUTY AND, UNDER THE POSITIVE TERMS OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, BEING AN OFFICER WITHOUT DEPENDENTS, IS NOT ENTITLED TO RENTAL ALLOWANCE WHILE ON SUCH DUTY, NOTWITHSTANDING THE COMMANDANT OF THE NAVAL DISTRICT, BASED ON THE OFFICER'S REPRESENTATIONS AS TO DISCOMFORTS IN LIVING ABOARD SHIP, EXPRESSED THE OPINION THAT QUARTERS ON BOARD THE VESSEL ARE NOT SUITABLE FOR LIVING QUARTERS AND SHOULD BE CONSIDERED AS NOT AVAILABLE INSOFAR AS RENTAL ALLOWANCE IS CONCERNED, AND THAT THE BUREAU OF NAVIGATION CONSIDERS SERVICE ON THE INVOLVED VESSEL AS SHORE DUTY FOR PURPOSES OF RECORD AND ROTATION OF DUTY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. JOHN K. CHISHOLM, UNITED STATES NAVY, SEPTEMBER 16, 1939:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE SECRETARY OF THE NAVY YOUR LETTER OF JULY 19, 1939, REQUESTING DECISION AS TO THE RIGHT OF LT. ( JR. GR.) JAMES L. KEMPER, UNITED STATES NAVY, TO RENTAL ALLOWANCE WHILE SERVING ON BOARD THE U.S.S. EAGLE 56 AS COMMANDING OFFICER. YOU STATE THE OFFICER HAS NO DEPENDENTS ENTITLING HIM TO DRAW RENTAL ALLOWANCE.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 2 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES FOR PAYMENT OF RENTAL ALLOWANCE. THE FOURTH PARAGRAPH OF THE AMENDMENT IS AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN , IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

SECTION 21 OF THE ACT PROVIDES:

THAT NOTHING IN THIS ACT SHALL OPERATE TO CHANGE IN ANY WAY EXISTING LAWS, OR REGULATIONS MADE IN PURSUANCE OF LAW, GOVERNING * * * ALLOWANCES IN KIND FOR QUARTERS, HEAT, AND LIGHT FOR OFFICERS * * *.

THE FACT THAT LIEUTENANT ( JR. GR.) KEMPER, AN OFFICER WITHOUT DEPENDENTS, WAS ASSIGNED TO DUTY ON A VESSEL OF THE NAVY WOULD INDICATE, THAT PRIMA FACIE, HE IS NOT, UNDER THE LAW, ENTITLED TO RENTAL ALLOWANCE. HOWEVER, THERE IS ATTACHED A COMMUNICATION FROM THE BUREAU OF NAVIGATION TO THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED MAY 27, 1939, STATING THAT---

DUTY ON BOARD THE U.S.S. EAGLE 56 IS CONSIDERED SHORE DUTY, BOTH FOR PURPOSES OF RECORD AND ROTATION OF DUTY.

THE OFFICER IN LETTER OF JULY 11, 1939, TO THE COMMANDANT OF THE FIFTH NAVAL DISTRICT, STATES ROOMS ARE AVAILABLE ON THE VESSEL BUT AS THE VESSEL IS USED FOR THE TRAINING OF RESERVISTS OR NAVAL MILITIA STEAM IS NOT KEPT UP ON THE VESSEL EXCEPT ON WEEK-END CRUISES; THAT A DONKEY BOILER HAS BEEN INSTALLED ON THE DOCK TO SUPPLY STEAM WHEN NEEDED; THAT THERE IS NO VENTILATION SYSTEM ON BOARD EXCEPT FOR WIND SCOOPS; THAT THE PORTS ARE RATHER SMALL; THAT THE ROOMS ARE HOT; AND THAT NO SCREENS ARE INSTALLED ON BOARD, WITH THE RESULT THAT FOLLOWING A WEEK-END CRUISE WHEN FOOD IS TAKEN ABOARD THE VESSEL THE LIVING ROOMS ARE INFESTED WITH FLIES. HE DOES NOT STATE HOW LONG OR DURING WHAT PERIODS HE LIVED ABOARD AND FOUND THE CONDITIONS UNSATISFACTORY. THE CLAIM IS INDEFINITE IN THIS RESPECT, BUT IN VIEW OF THE CONCLUSION NECESSARY TO BE REACHED THIS IS NOT MATERIAL.

ON THE BASIS OF THE ABOVE REPRESENTATIONS THE COMMANDANT OF THE FIFTH NAVAL DISTRICT, BY LETTER OF JULY 13, 1939, TO THE BUREAU OF SUPPLIES AND ACCOUNTS, MODIFYING A FORMER REPORT BY FIRST ENDORSEMENT OF JUNE 12, 1939, EXPRESSES THE OPINION---

* * * THAT QUARTERS ON BOARD THE U.S.S. EAGLE 56 ARE NOT SUITABLE FOR LIVING QUARTERS AND SHOULD BE CONSIDERED AS NOT AVAILABLE, INSOFAR AS RENTAL ALLOWANCE IS CONCERNED.

THE U.S.S. EAGLE 56 IS LISTED IN THE NAVY DIRECTORY FOR JANUARY 1939, AT PAGE 186, AMONG THE VESSELS OF THE NAVY IN COMMISSION AND HAVING A DISPLACEMENT OF 430 TONS. SECTION 1571, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 11, 1928, 45 STAT. 498, PROVIDES---

NO SERVICE SHALL BE REGARDED AS SEA SERVICE EXCEPT SUCH AS SHALL BE PERFORMED AT SEA, UNDER THE ORDERS OF A DEPARTMENT AND IN VESSELS EMPLOYED BY AUTHORITY OF LAW: PROVIDED, THAT WHEN OFFICERS ARE ASSIGNED TO AIRSHIPS ON DUTY REQUIRING THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS THE SECRETARY OF THE NAVY SHALL DETERMINE AND CERTIFY WHETHER OR NOT, IN HIS JUDGMENT, THE SERVICE TO BE PERFORMED IS EQUIVALENT TO SEA DUTY. IF SUCH SERVICE IS THUS DETERMINED TO BE EQUIVALENT TO SEA DUTY, IT SHALL BE CONSIDERED TO BE ACTUAL SEA SERVICE ON SEA-GOING SHIPS FOR ALL PURPOSES.

THE AMENDMENT OF 1928 IS CONTAINED IN THE PROVISO QUOTED ABOVE. THIS SECTION, BEFORE ITS AMENDMENT, WAS CONSIDERED IN MANY CASES BY THE COURTS IN CONNECTION WITH CLAIMS FOR SEA PAY, A HIGHER RATE OF PAY THAN FOR DUTY ASHORE. THE PROVISION IS CAST IN A NEGATIVE FORM: " NO SERVICE SHALL BE REGARDED AS SEA SERVICE" EXCEPT IT MEETS THE REQUIREMENTS THEREIN FIXED. HOWEVER, THE COURTS IN CONSTRUING THE PROVISION HAVE AFFIRMATIVELY DEFINED WHAT CONSTITUTES SEA SERVICE FOR THE PURPOSE OF THE SECTION. IN WYCKOFF V. UNITED STATES, 34 CT.1CLS. 288, IT WAS HELD THAT FOR A VESSEL TO COME WITHIN THE PHRASE "AT SEA" IT IS NOT NECESSARY THAT SHE BE UPON THE HIGH SEAS; IT IS ENOUGH IF SHE BE WATER BORNE, EVEN AT ANCHOR IN A BAY, OR PORT, OR HARBOR, AND NOT IN CONDITION PRESENTLY TO GO TO SEA; OR TIED TO A DOCK; THAT SHE NEED NOT BE IN COMMISSION OR ENGAGED IN NAVIGATION; HER CREW NEED NOT BE SEAMEN, BUT MAY BE A SMALL FORCE OF CIVILIAN LABORERS FROM A DOCKYARD.

SEE ALSO UNITED STATES V. SYMONDS, 120 U.S. 46; UNITED STATES V. BISHOP, 120 U.S. 51; UNITED STATES V. STRONG, 125 U.S. 656; UNITED STATES V. BARNETTE, 165 U.S. 174, AND UNITED STATES V. ENGARD, 196 U.S. 511. IN THE BARNETTE CASE THE SUPREME COURT SEEMS TO HAVE ADOPTED SUBSTANTIALLY THE VIEWS OF THE COURT OF CLAIMS IN THE WYCKOFF CASE. THESE DECISIONS WERE BENEFICIAL TO THE OFFICERS BUT THEY HAVE DEFINED SEA SERVICE AND MUST CONTROL NOTWITHSTANDING THERE HAS BEEN A CHANGE IN THE LAW AS TO THE OFFICERS' PAY AND ALLOWANCES WHEN ON SEA DUTY.'SEA DUTY" AND "SEA SERVICE" ARE ONE AND THE SAME THING, THE TERMS BEING USED INTERCHANGEABLY IN THE AMENDMENT OF 1928 TO SECTION 1571, REVISED STATUTES. IF THE ASSIGNMENT AND DUTY CONSTITUTED "SEA SERVICE" UNDER SECTION 1571, REVISED STATUTES, AS CONSTRUED BY THE COURTS, IT IS "SEA DUTY" UNDER SECTION 6 OF THE JOINT PAY ACT. DISCOMFORTS IN LIVING ABOARD SHIP WERE LARGELY THE BASIS FOR THE HOLDINGS IN THE CITED CASES THAT THE DUTY WAS SEA SERVICE, TO THE FINANCIAL BENEFIT OF THE OFFICER; THOSE DISCOMFORTS CANNOT NOW BE CONSIDERED AS A REASON FOR HOLDING IT IS NOT SEA DUTY TO INCREASE THE OFFICERS' RIGHTS TO ALLOWANCES.

IT IS NOTED THE BUREAU OF NAVIGATION CONSIDERS SERVICE ON THE U.S.S. EAGLE 56 AS SHORE DUTY"BOTH FOR PURPOSES OF RECORD AND ROTATION OF DUTY.' AS TO ROTATION OF DUTY IT MAY WELL BE THAT AN OFFICER ON DUTY ABOARD A VESSEL USUALLY TIED TO A DOCK SHOULD NOT AVOID "ACTUAL SEA SERVICE" BECAUSE OF THAT FACT. THAT IT IS CONSIDERED SHORE DUTY FOR RECORD PURPOSES DOUBTLESS GROWS OUT OF THE REQUIREMENT OF THE SELECTION LAWS COMMENCING WITH THE ACT OF AUGUST 29, 1916, 39 STAT. 579, AS CONDITION TO PROMOTION THAT THE OFFICER SHALL HAVE HAD "NOT LESS THAN TWO YEARS' ACTUAL SEA SERVICE ON SEAGOING SHIPS IN THE GRADE IN WHICH SERVING.' AND SEE SUBSTANTIALLY THE SAME REQUIREMENT REPEATED IN SECTION 11 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 948, AMENDING THE LAWS RESPECTING SELECTION OF LINE OFFICERS OF THE NAVY FOR PROMOTION. THIS IS A NEW AND DIFFERENT STATUTORY REQUIREMENT FOR A DIFFERENT PURPOSE. IT IN NO WAY CHANGES THE INTENT OR MEANING OF SECTION 1571, REVISED STATUTES, AS DEFINED BY THE COURT THE PROVISION CONTAINED IN SECTION 1571, REVISED STATUTES, WAS ORIGINALLY SECTION 3 OF THE ACT OF JUNE 1, 1860, 12 STAT. 23, 27, ENTITLED "AN ACT TO INCREASE AND REGULATE THE PAY OF THE NAVY OF THE UNITED STATES.' THAT SECTION WAS CODIFIED AS SECTION 1571, REVISED STATUTES, IN CHAPTER 8, ENTITLED " PAY, EMOLUMENTS, AND ALLOWANCE" OF TITLE XV " THE NAVY.' THAT SECTION ORIGINALLY AND PRIMARILY WAS DESIGNED TO FIX THE RIGHTS OF OFFICERS WITH RESPECT TO PAY OR ALLOWANCES CONDITIONED UPON SEA SERVICE AND IS NOT AFFECTED BY THE LATTER STATUTE DESIGNED TO REQUIRE MORE IN THE WAY OF SEA SERVICE FOR CONSIDERATION FOR PROMOTION, THAN HAD BEEN FOUND NECESSARY BY THE COURTS UNDER SECTION 1571, REVISED STATUTES, THAT IS,"ACTUAL SEA SERVICE IN SEAGOING SHIPS.' A RECORD AS TO DUTY TO BE SO CLASSED IN NO WAY CHANGES THE OFFICERS' RIGHTS IN THE MATTER OF PAY OR ALLOWANCES AS DEFINED BY SECTION 1571, REVISED STATUTES.

LIEUTENANT ( JR. GR.) KEMPER, BEING ASSIGNED TO DUTY IN COMMAND OF A VESSEL OF THE NAVY, MUST BE REGARDED AS ON SEA DUTY AND, UNDER THE PLAIN AND POSITIVE TERMS OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, BEING AN OFFICER WITHOUT DEPENDENTS, HE IS NOT, WHILE ON SUCH DUTY, ENTITLED TO RENTAL ALLOWANCE.