B-61170, JANUARY 3, 1947, 26 COMP. GEN. 447

B-61170: Jan 3, 1947

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO WAS ON TEMPORARY SEA DUTY. THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE FOR ALL OF ANY PORTION OF THE PERIOD. WHO WAS ATTACHED TO THE BUREAU OF MEDICINE AND SURGERY. WAS DIRECTED BY BUREAU OF NAVAL PERSONNEL ORDERS DATED FEBRUARY 28. UPON COMPLETION OF SUCH TEMPORARY ASSIGNMENT HE WAS TO RESUME HIS REGULAR DUTIES. IT IS REPORTED THAT DURING THE ENTIRE PERIOD IN QUESTION NO PUBLIC QUARTERS WERE AVAILABLE FOR ASSIGNMENT TO THE OFFICER AT HIS DESIGNATED POST OF DUTY. BASED ON THE FOREGOING STATEMENT OF FACTS THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION: (1) IS THE OFFICER CONSIDERED ATTACHED TO THE U.S.S. HAVEN FOR THE ENTIRE PERIOD FROM 3 APRIL TO 5 AUGUST 1946? (2) IF THE ANSWER TO QUESTION (P) IS IN THE AFFIRMATIVE.

B-61170, JANUARY 3, 1947, 26 COMP. GEN. 447

RENTAL ALLOWANCE - NAVY OFFICERS - TEMPORARY SEA DUTY A NAVY OFFICER, WITHOUT DEPENDENTS, WHO WAS ON TEMPORARY SEA DUTY, AS ADMINISTRATIVELY DEFINED FOR ADDITIONAL PAY PURPOSES UNDER SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, FOR A PERIOD OF MORE THAN THREE MONTHS INCLUDING A SHORT PERIOD OF TEMPORARY DUTY ASHORE, MUST BE REGARDED AS ON ,SEA DUTY" FOR THE ENTIRE PERIOD WITHIN THE MEANING OF THE PROHIBITION IN SECTION 6 OF SAID ACT, AS AMENDED, AGAINST PAYMENT OF RENTAL ALLOWANCE TO OFFICERS, HAVING NO DEPENDENTS, WHILE ON SEA DUTY EXCEPT FOR TEMPORARY PERIODS NOT EXCEEDING THREE MONTHS, AND THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE FOR ALL OF ANY PORTION OF THE PERIOD. COMPARE 22 COMP. GEN. 467.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 3, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 3, 1946, FILE JAG:II:WJG:MH 100-BANKHEAD, ALEXANDER J. L16-7, REQUESTING DECISION ON CERTAIN QUESTIONS RELATIVE TO THE RIGHT OF LIEUTENANT COMMANDER ALEXANDER J. BANKHEAD, MEDICAL CORPS, UNITED STATES NAVY, TO RENTAL ALLOWANCE, AS FOR AN OFFICER HAVING NO DEPENDENTS, DURING THE PERIOD APRIL 3, TO AUGUST 5, 1946, UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS THAT LIEUTENANT COMMANDER BANKHEAD, WHO WAS ATTACHED TO THE BUREAU OF MEDICINE AND SURGERY, WASHINGTON, D.C., WAS DIRECTED BY BUREAU OF NAVAL PERSONNEL ORDERS DATED FEBRUARY 28, 1946, TO REPORT TO THE COMMANDER, JOINT TASK FORCE ONE, WASHINGTON, D.C., FOR TEMPORARY DUTY IN CONNECTION WITH CROSSROADS OPERATIONS AND THENCE TO PROCEED TO SUCH PLACES WITHIN AND WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES AS THE COMMANDER, JOINT TASK FORCE ONE, MIGHT DIRECT. UPON COMPLETION OF SUCH TEMPORARY ASSIGNMENT HE WAS TO RESUME HIS REGULAR DUTIES.

THE OFFICER REPORTED, AS DIRECTED BY SUCH ORDERS, ON MARCH 5, 1946, AND UNDER DATE OF MARCH 19, 1946, THE COMMANDER, JOINT TASK FORCE ONE, DIRECTED HIM TO PROCEED TO SAN FRANCISCO, CALIFORNIA, FOR DUTY (TEMPORARY) AND, UPON COMPLETION THEREOF, TO REPORT TO THE COMMANDING OFFICER, U.S.S. HAVEN, FOR DUTY (TEMPORARY) IN CONNECTION WITH DAMAGE CONTROL SAFETY FOR PROJECT CROSSROADS. HE REPORTED TO THE COMMANDING OFFICER OF THE U.S.S. HAVEN ON APRIL 3, 1946.

DURING THE PERIOD APRIL 5, TO MAY 25, 1946, WHILE STILL ASSIGNED TO THE U.S.S. HAVEN, HE PERFORMED TEMPORARY DUTY ON BOARD TARGET VESSELS AT SAN DIEGO ( APRIL 5, TO MAY 6) AND TEMPORARY DUTY ASHORE AT SAN FRANCISCO ( MAY 7 TO MAY 25), RETURNING ABOARD THE U.S.S. HAVEN ON MAY 25, 1946, WHERE HE REMAINED UNTIL AUGUST 5, 1946. IT IS REPORTED THAT DURING THE ENTIRE PERIOD IN QUESTION NO PUBLIC QUARTERS WERE AVAILABLE FOR ASSIGNMENT TO THE OFFICER AT HIS DESIGNATED POST OF DUTY, WASHINGTON, D.C.

BASED ON THE FOREGOING STATEMENT OF FACTS THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

(1) IS THE OFFICER CONSIDERED ATTACHED TO THE U.S.S. HAVEN FOR THE ENTIRE PERIOD FROM 3 APRIL TO 5 AUGUST 1946?

(2) IF THE ANSWER TO QUESTION (P) IS IN THE AFFIRMATIVE, IS HE ENTITLED TO RENTAL ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS FOR ANY PORTION OF THAT PERIOD?

(3) IF THE ANSWER TO QUESTION (2) IS IN THE AFFIRMATIVE, FOR WHAT PORTION OF THE PERIOD IS HE ENTITLED TO SEA PAY?

THE FOURTH PARAGRAPH OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, AND THE FIFTH PARAGRAPH THEREOF (56 STAT. 361, 362) PROVIDE:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS * * * WHILE ON SEA DUTY EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS * * *.

REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE, IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED, INCLUDING ADJUNCT FORCES THEREOF.

IN LETTER OF MAY 30, 1945 ( NAVY DEPARTMENT BULLETIN, JANUARY TO JUNE, 1945, PAGE 68), THE SECRETARY OF THE NAVY, UNDER THE AUTHORITY VESTED IN HIM BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, DEFINED SEA DUTY AS BEING, INTER ALIA, SERVICE PERFORMED IN A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, INCLUDING PERIODS OF TEMPORARY ADDITIONAL DUTY IN SUCH VESSEL EVEN THOUGH THE PRIMARY DUTY IS SHORE DUTY, AND SERVICE WHILE STILL ATTACHED TO A VESSEL FOR NOT EXCEEDING THIRTY CONSECUTIVE DAYS WHEN ON TEMPORARY ADDITIONAL DUTY ASHORE. SUCH LETTER FURTHER PROVIDES THAT PERSONNEL ORDERED TO SEA DUTY AS DEFINED THEREIN SHALL BE ENTITLED TO THE PERCENTAGE INCREASE IN PAY FOR SEA DUTY FROM THE DATE OF REPORTING TO AND INCLUDING THE DATE OF DETACHMENT STATED IN THE ORDERS. THE PRESIDENT, ALSO, HAS DEFINED THE TERM "SEA DUTY" IN REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA (SEE EXECUTIVE ORDER NO. 9255, DATED OCTOBER 13, 1942).

IN DECISION OF NOVEMBER 14, 1942, 22 COMP. GEN. 467, IT WAS HELD THAT, IN THE ABSENCE OF A CLEAR EXPRESSION OF THE WILL OF THE CONGRESS IN THE MATTER, THIS OFFICE WOULD NOT BE WARRANTED IN ASSUMING A LEGISLATIVE INTENT TO CREATE THE ANOMALY OF REGARDING AN OFFICER AS ON SEA DUTY FOR THE PURPOSES OF SECTION 2 OF THE ACT, BUT AS NOT ON SEA DUTY FOR THE PURPOSES OF SECTION 6 THEREOF. THE NAVY DEPARTMENT SUBSEQUENTLY SECURED LEGISLATION TO OVERCOME THE EFFECT OF THAT DECISION, BUT ONLY TO THE EXTENT OF AUTHORIZING THE EXISTENCE OF SUCH A DUAL STATUS WHEN THE OFFICER WAS ON SEA DUTY FOR TEMPORARY PERIODS OF NOT EXCEEDING THREE MONTHS. SEE THE ACT OF MARCH 6, 1943, 57 STAT. 13, AND THE LEGISLATIVE HISTORY THEREOF. THUS, SINCE THE EFFECT OF THE DECISION OF NOVEMBER 14, 1942, SUPRA, WAS BROUGHT TO THE ATTENTION OF THE CONGRESS AND EXCEPTION WAS MADE ONLY TO THE EXTENT NOTED ABOVE, IT WOULD APPEAR THAT THE RULE LAID DOWN IN SAID DECISION, AND UNIFORMLY APPLIED THEREAFTER, PROPERLY REFLECTS THE LEGISLATIVE INTENT IN THE MATTER. THERE HAS NOT BEEN OVERLOOKED IN THIS CONNECTION THE RECENT OPINION OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASE OF SCHUH V. UNITED STATES, C.1CLS. NO. 46381.

SINCE IT WOULD APPEAR THAT LIEUTENANT COMMANDER BANKHEAD, WHO, IT IS INDICATED, HAS NO DEPENDENTS, WAS IN A SEA DUTY STATUS FROM APRIL 3 TO AUGUST 5, 1946--- A PERIOD IN EXCESS OF THREE MONTHS--- THE PAYMENT OF RENTAL ALLOWANCE TO HIM FOR ALL OR ANY PORTION OF SUCH PERIOD IS PRECLUDED. 22 COMP. GEN. 467, SUPRA. ACCORDINGLY, THE FIRST QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE, AND THE SECOND IS ANSWERED IN THE NEGATIVE, LEAVING IT UNNECESSARY TO ANSWER THE THIRD QUESTION.