B-163798, DEC. 22, 1970

B-163798: Dec 22, 1970

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

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

WHERE THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT THE LEGISLATION AS REQUESTED BY THE SECRETARY OF THE NAVY TO RELIEVE MORALE PROBLEMS ARISING FROM A SHIP'S OVERHAUL IN PORTS OTHER THAN THE HOME PORT OF THE VESSEL WHERE THE MEMBER'S DEPENDENTS ARE RESIDING AND IT REFERS ONLY TO SHIPS BEING OVERHAULED FOR CONTINUED SERVICE AND THERE IS NO REFERENCE TO INACTIVATION OF VESSELS IN THE LEGISLATION. IT IS A MATTER FOR PRESENTATION TO CONGRESS IF SUCH ENTITLEMENT IS DEEMED NECESSARY BECAUSE OF THE MORALE FACTOR AND AN ADMINISTRATIVE REGULATION EXTENDING THE ENTITLEMENT UNDER SECTION 406(B). IS WITHOUT LEGAL EFFECT. SECRETARY: REFERENCE IS MADE TO LETTER OF NOVEMBER 18. IN WHICH WE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR APPLYING THE PROVISIONS OF.

B-163798, DEC. 22, 1970

SHIP INACTIVATION AWAY FROM HOME PORT AFFIRMING PRIOR DECISION THAT 37 U.S.C. 406(B) MAY NOT BE EXTENDED BY ADMINISTRATIVE REGULATION TO ENTITLE PERSONNEL OF SHIPS UNDERGOING INACTIVATION TO ROUND TRIP COMPENSATION TO THE HOME PORT TO VISIT DEPENDENTS. WHERE THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT THE LEGISLATION AS REQUESTED BY THE SECRETARY OF THE NAVY TO RELIEVE MORALE PROBLEMS ARISING FROM A SHIP'S OVERHAUL IN PORTS OTHER THAN THE HOME PORT OF THE VESSEL WHERE THE MEMBER'S DEPENDENTS ARE RESIDING AND IT REFERS ONLY TO SHIPS BEING OVERHAULED FOR CONTINUED SERVICE AND THERE IS NO REFERENCE TO INACTIVATION OF VESSELS IN THE LEGISLATION, IT IS A MATTER FOR PRESENTATION TO CONGRESS IF SUCH ENTITLEMENT IS DEEMED NECESSARY BECAUSE OF THE MORALE FACTOR AND AN ADMINISTRATIVE REGULATION EXTENDING THE ENTITLEMENT UNDER SECTION 406(B), TITLE 37, U.S.C., IS WITHOUT LEGAL EFFECT.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF NOVEMBER 18, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS), RELATIVE TO OUR DECISION B-163798, OCTOBER 26, 1970, 50 COMP. GEN. , IN WHICH WE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR APPLYING THE PROVISIONS OF, OR EXTENDING THE BENEFITS OF, 37 U.S.C. 406B TO PERSONNEL OF ANY SHIP UNDERGOING INACTIVATION AWAY FROM ITS HOME PORT.

IN HIS LETTER, THE ASSISTANT SECRETARY OF THE NAVY HAS REQUESTED THAT WE RECONSIDER OUR DECISION IN LIGHT OF INFORMATION CONTAINED THEREIN, AND HE ADVISES THAT THE DEPARTMENT OF THE NAVY IS WITHHOLDING REVISION OF PERTINENT DIRECTIVES PENDING FINAL RESOLUTION OF THIS MATTER.

THE ASSISTANT SECRETARY OF THE NAVY EXPRESSES THE OPINION THAT INCLUSION OF INACTIVATIONS WITHIN THE DEFINITION OF OVERHAUL IS IN KEEPING WITH LEGISLATIVE INTENT AND THE DEFINITIONS CITED IN OUR DECISION. IN SUPPORT OF HIS VIEW, HE REFERS TO A STATEMENT BY REAR ADMIRAL R. R. CRUTCHFIELD, ASSISTANT CHIEF OF NAVAL PERSONNEL FOR PLANS AND PROGRAMS (PAGES 592 TO 596, HEARINGS BEFORE SUBCOMMITTEE NO. 2, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 8020, HELD MARCH 25, 1969) AND TO SENATE REPORT NO. 91-665 ON H.R. 8020, 2D SESSION, 91ST CONGRESS, DATED FEBRUARY 6, 1970. H.R. 8020 WAS ENACTED AS PUB. L. 91-210 WHICH ADDED SECTION 406B TO TITLE 37, U.S.C. HE CONCLUDES FROM THE ABOVE THAT THE PRIMARY PURPOSE OF THE LEGISLATION WAS TO ASSIST IN MAINTAINING A SEMBLANCE OF FAMILY UNITY DURING PERIODS OF A VESSEL'S ABSENCE FROM ITS HOME PORT FOR NON- OPERATIONAL REASONS, WHILE UNDERGOING REPAIR OR REHABILITATION.

IN ADDITION, LETTER OF AUGUST 27, 1969, FROM THE GENERAL COUNSEL OF THE DEPARTMENT OF COMMERCE, TO THE CHAIRMAN, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE (PAGES 9 AND 10, OF THE ABOVE CITED SENATE REPORT), IS REFERRED TO AS SUPPORTING THE ASSISTANT SECRETARY'S CONTENTIONS. THIS LETTER IT WAS SAID THAT

"IT IS POSSIBLE FOR MEMBERS OF THE UNIFORMED SERVICES, IN ADDITION TO U.S. NAVY MEMBERS, TO BE ASSIGNED ON PERMANENT DUTY ABOARD SHIPS OVERHAULING FOR EXTENDED PERIODS AWAY FROM THEIR HOME PORTS. WITHIN THE DEPARTMENT OF COMMERCE, COMMISSIONED OFFICERS OF THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION (ESSA) ARE SUBJECT TO SUCH CIRCUMSTANCES. WOULD APPEAR THAT WITHIN THE DEPARTMENT OF TRANSPORTATION, MEMBERS OF THE U.S. COAST GUARD ARE ALSO SUBJECT TO SUCH CIRCUMSTANCES.

"ESSA OFFICERS ARE PERMANENTLY ASSIGNED TO SEA DUTY ABOARD SHIPS FOR EXTENDED PERIODS THROUGHOUT THEIR ENTIRE CAREERS, AND IT IS NOT UNUSUAL FOR SUCH SHIPS TO REQUIRE REPAIRS, EMERGENCY OR OTHERWISE, AWAY FROM THEIR HOME PORTS. EXCESSIVE FAMILY SEPARATION IS A DOMINANT FACTOR IN THE RESIGNATION AND EARLY RETIREMENT OF ESSA OFFICERS AS WELL AS NAVY OFFICERS."

WE ARE AWARE THAT SEPARATIONS OF MEMBERS FROM THEIR DEPENDENTS RESULTING FROM INACTIVATION OF VESSELS AWAY FROM THEIR HOME PORTS MAY PRESENT MORALE PROBLEMS THE SAME AS THOSE RESULTING FROM SEPARATIONS WHICH OCCUR BECAUSE OF OVERHAULING A VESSEL AWAY FROM ITS HOME PORT. HOWEVER, NOWHERE IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 91-210, INCLUDING THOSE PORTIONS REFERRED TO BY THE ASSISTANT SECRETARY OF THE NAVY, DO WE FIND REFERENCE TO INACTIVATIONS. AND, IT SEEMS CLEAR FROM THE ASSISTANT SECRETARY'S LETTER THAT LITTLE OR NO CONSIDERATION WAS GIVEN TO THE INACTIVATION PROBLEM UNTIL LEGISLATIVE ACTION ON THE LAW WAS PRACTICALLY COMPLETE.

THE LEGISLATIVE HISTORY OF THE ACT SHOWS THAT THE LEGISLATION WAS REQUESTED BY THE SECRETARY OF THE NAVY IN A LETTER DATED JANUARY 18, 1969, TO THE PRESIDENT, U.S. SENATE, TO RELIEVE THE MORALE PROBLEM WHICH HE SAID ARISES FROM THE OVERHAUL OF VESSELS IN PORTS OTHER THAN THE HOME PORT OF THE VESSEL WHERE A MEMBER'S DEPENDENTS ARE RESIDING, RESULTING IN A SUBSTANTIAL PERIOD OF SEPARATION OF THE MEMBER AND HIS DEPENDENTS WHEN THE VESSEL IS NOT AT SEA.

IN THE LETTER IT WAS EXPLAINED THAT DESPITE THE FAVORABLE PROGRESS IN REDUCING OUT-OF-PORT OVERHAULS, THREE OUT OF TEN MUST CONTINUE TO BE AWAY FROM THE HOME PORT, PRINCIPALLY BECAUSE SHIPS ARE ASSIGNED HOME PORTS WHICH ARE NOT NECESSARILY COLOCATED WITH THE INDUSTRIAL CAPACITY FOR THEIR MAINTENANCE AND REPAIR.

IT WAS SAID THAT THE ESTIMATED ANNUAL COST TO THE NAVY OF THE PROPOSED LEGISLATION WAS $754,000. IN OUR DECISION OF OCTOBER 26, 1970, WE SAID IT SEEMED REASONABLE TO ASSUME THAT SUCH ESTIMATE DID NOT INCLUDE ANY AMOUNT FOR TRAVEL OF PERSONNEL ON VESSELS UNDERGOING INACTIVATION. THE CORRECTNESS OF THAT ASSUMPTION IS BORNE OUT BY THE STATEMENTS OF THE ASSISTANT SECRETARY IN HIS LETTER OF NOVEMBER 18, 1970.

THE TESTIMONY OF ADMIRAL CRUTCHFIELD AND OTHER NAVY OFFICERS WHO APPEARED AT THE HEARINGS HELD BY SUBCOMMITTEE NO. 2, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, SIMPLY SUPPORTED THE STATEMENTS OF THE SECRETARY OF THE NAVY AS TO THE NEED OF THE REQUESTED LEGISLATION BECAUSE OF THE MORALE PROBLEM INCIDENT TO OVERHAUL OF VESSELS AWAY FROM THEIR HOME PORTS.

AS INDICATED ABOVE, NO MENTION OF INACTIVATION OF VESSELS HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE LEGISLATION AND, WHILE OVERHAUL WAS NOT DEFINED, IT SEEMS CLEAR FROM THE SECRETARY'S LETTER REQUESTING THE LEGISLATION THAT THE TERM WAS INTENDED TO RELATE TO THE MAINTENANCE AND REPAIR OF VESSELS FOR CONTINUED ACTIVE SERVICE AND THAT THERE WAS NO CONGRESSIONAL INTENTION THAT THE LEGISLATION WOULD PROVIDE AUTHORITY FOR TRAVEL OF MEMBERS FROM AN INACTIVATION PORT TO THE HOME PORT OF A VESSEL BEING INACTIVATED.

THE FACT THAT SOME REPAIRS AND MAINTENANCE MAY BE PERFORMED IN CONNECTION WITH THE INACTIVATION OF A VESSEL AS A PART OF THE "MOTHBALLING" PROCESS DOES NOT CONSTITUTE THE OPERATION AN OVERHAUL FOR CONTINUED ACTIVE SERVICE AS APPARENTLY WAS CONTEMPLATED IN ENACTING THE STATUTE AND DOES NOT, IN OUR OPINION, PROVIDE ANY LEGAL BASIS FOR EXTENDING THE BENEFITS THEREOF BY ADMINISTRATIVE REGULATIONS TO INCLUDE INACTIVATIONS.

CONCEIVABLY, IF THE MORALE PROBLEM INCIDENT TO OVERHAUL AWAY FROM THE HOME PORT IS THE SAME IN THE CASE OF INACTIVATIONS AND THE MATTER HAD BEEN PRESENTED TO THE CONGRESS WHEN THE LEGISLATION WAS UNDER CONSIDERATION, SUCH LEGISLATION MAY HAVE BEEN BROADENED TO ALSO AUTHORIZE TRAVEL OF MEMBERS IN CASES OF INACTIVATION. SINCE IT SEEMS CLEAR, HOWEVER, THAT THE LEGISLATION WAS ENACTED TO AUTHORIZE TRAVEL OF MEMBERS INCIDENT TO THE OVERHAUL OF VESSELS FOR CONTINUED ACTIVE OPERATION, WE ARE FIRMLY OF THE OPINION THAT ANY ADMINISTRATIVE REGULATION WHICH PURPORTS TO EXTEND ENTITLEMENT TO TRAVEL AT GOVERNMENT EXPENSE UNDER SECTION 406(B) INCIDENT TO INACTIVATION GOES BEYOND THE SCOPE OF THE INTENDED PURPOSE OF THE STATUTE AND IS WITHOUT LEGAL EFFECT.

IF SUCH ENTITLEMENT IS DEEMED NECESSARY BECAUSE OF THE MORALE FACTOR INVOLVED IN THOSE CIRCUMSTANCES, IT IS A MATTER THAT SHOULD BE PRESENTED TO THE CONGRESS FOR ITS CONSIDERATION. ACCORDINGLY, OUR DECISION OF OCTOBER 26, 1970, IS AFFIRMED AND IT IS REQUESTED THAT WE BE FURNISHED AN EARLY REPLY SETTING FORTH THE STEPS TAKEN TO IMPLEMENT THAT DECISION.