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B-154092, OCTOBER 30, 1964, 44 COMP. GEN. 241

B-154092 Oct 30, 1964
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PAY - SUBMARINE DUTY - STAFF MEMBERS - ON BOARD DUTY REQUIREMENT SUBMARINE STAFF MEMBERS WHO ARE BASED ASHORE OR ON SURFACE VESSELS AND WHO DO NOT PERFORM A MAJORITY OF THEIR ASSIGNED DUTIES ON A SUBMARINE ARE NOT TO BE CONSIDERED AS ON DUTY "ON A SUBMARINE" WITHIN THE MEANING OF 37 U.S.C. 301 (A) (2) TO BE ENTITLED TO SUBMARINE DUTY PAY ON A CONTINUOUS BASIS AND. IN VIEW OF THE LENGTH OF TIME THE SUBMARINE PAYMENTS HAVE BEEN MADE TO OFF BOARD BASED PERSONNEL. SUCH PAYMENTS WILL NOT BE QUESTIONED IF MADE PRIOR TO MARCH 1. 1964: FURTHER REFERENCE IS MADE TO LETTER OF JULY 24. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. THIS MATTER WAS THE SUBJECT OF OUR PROPOSED REPORT TO THE CONGRESS.

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B-154092, OCTOBER 30, 1964, 44 COMP. GEN. 241

PAY - SUBMARINE DUTY - STAFF MEMBERS - ON BOARD DUTY REQUIREMENT SUBMARINE STAFF MEMBERS WHO ARE BASED ASHORE OR ON SURFACE VESSELS AND WHO DO NOT PERFORM A MAJORITY OF THEIR ASSIGNED DUTIES ON A SUBMARINE ARE NOT TO BE CONSIDERED AS ON DUTY "ON A SUBMARINE" WITHIN THE MEANING OF 37 U.S.C. 301 (A) (2) TO BE ENTITLED TO SUBMARINE DUTY PAY ON A CONTINUOUS BASIS AND, ALTHOUGH THE SECRETARY OF THE NAVY HAS AUTHORITY TO DETERMINE CONDITIONS OF ENTITLEMENT FOR SUBMARINE PAY, SUCH AUTHORITY MAY NOT BE USED TO NULLIFY THE STATUTORY REQUIREMENT THAT THE DUTY BE ON A SUBMARINE; HOWEVER, IN VIEW OF THE LENGTH OF TIME THE SUBMARINE PAYMENTS HAVE BEEN MADE TO OFF BOARD BASED PERSONNEL, SUCH PAYMENTS WILL NOT BE QUESTIONED IF MADE PRIOR TO MARCH 1, 1965, TO AFFORD TIME TO PRESENT THE MATTER TO CONGRESS, TO MAKE PERSONNEL ASSIGNMENT ADJUSTMENTS, OR TO TAKE SUCH OTHER ACTION CONSIDERED ADVISABLE.

TO THE SECRETARY OF THE NAVY, OCTOBER 30, 1964:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 24, 1964, FROM THE UNDERSECRETARY OF THE NAVY REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENTS OF SUBMARINE PAY TO CERTAIN SUBMARINE STAFF MEMBERS ON A CONTINUING BASIS UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. SS-N-788 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THIS MATTER WAS THE SUBJECT OF OUR PROPOSED REPORT TO THE CONGRESS, A COPY OF WHICH WAS FORWARDED TO THE SECRETARY OF DEFENSE FOR COMMENT ON JUNE 25, 1964. IN THAT REPORT WE CITED FACTS AND STATISTICS SHOWING THAT MEMBERS OF SUBMARINE FORCE COMMAND STAFFS, ALTHOUGH ATTACHED TO A SUBMARINE, ARE BASED EITHER ASHORE OR ON SURFACE VESSELS AND SELDOM PERFORM DUTY ON A SUBMARINE. WE CONCLUDED THAT IN SUCH CIRCUMSTANCES, PAYMENT ON INCENTIVE PAY ON A CONTINUOUS BASIS FOR THE PERFORMANCE OF HAZARDOUS DUTY ON A SUBMARINE TO MEMBERS OF SUCH STAFFS, WAS ILLEGAL. THE MATTER WAS FURTHER DISCUSSED AT A CONFERENCE HELD HERE ON JULY 8, 1964, BETWEEN REPRESENTATIVES OF THE DEPARTMENT OF DEFENSE AND THE DEPARTMENT OF THE NAVY AND REPRESENTATIVES OF OUR OFFICE.

IN THIS REGARD THERE HAVE BEEN MADE AVAILABLE TO US A COPY OF LETTER DATED AUGUST 6, 1964, FROM THE UNDER SECRETARY OF THE NAVY TO THE HONORABLE CARL VINSON, CHAIRMAN, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, CONCERNING THIS MATTER AND A COPY OF THE CHAIRMAN'S REPLY DATED AUGUST 11, 1964, EXPRESSING HIS VIEWS ON THE SUBJECT.

AS EARLY AS 1901, ENLISTED MEN OF THE NAVY WERE ENTITLED TO SUBMARINE PAY PURSUANT TO AN EXECUTIVE ORDER "WHILE SERVING ON BOARD OF SUBMARINE VESSELS OF THE NAVY" AND AN ADDITIONAL AMOUNT PER DAY WAS AUTHORIZED (NAVY GENERAL ORDER NO. 9, DATED NOVEMBER 9, 1905) WHILE "SUBMERGED IN A SUBMARINE TORPEDO BOAT.' THE APPLICATION OF THOSE REGULATIONS TO A MEMBER IN LEAVE STATUS AND AN INSTRUCTOR AT A SUBMARINE SCHOOL WERE CONSIDERED IN 19 COMP. DEC. 754 AND 25 COMP. DEC. 533. SUBMARINE PAY WAS FIRST AUTHORIZED FOR OFFICERS OF THE NAVY BY THE ACT OF APRIL 9, 1928, 45 STAT. 412, 34 U.S.C. 886, FOR DUTY ON BOARD A SUBMARINE "WHILE SO SERVING.' THAT ACT ALSO AUTHORIZED SUBMARINE PAY FOR ENLISTED MEN "ASSIGNED TO DUTY ABOARD A SUBMARINE OF THE NAVY.' IN CONSTRUING THIS ACT, IT WAS POINTED OUT IN 8 COMP. GEN. 162, THAT IT SEEMED CLEAR FROM THE STATUTORY LANGUAGE AND THE COMMITTEE REPORT THAT IT WAS NOT INTENDED TO AUTHORIZE ADDITIONAL PAY FOR AN OFFICER ASSIGNED TO DUTY "ON BOARD A SUBMARINE" EXCEPT WHERE THE OFFICER ACTUALLY IS PERFORMING DUTY ON BOARD THE SUBMARINE AND SUBJECT TO THE HAZARDS AND RISKS SUCH DUTY ENTAILS. SEE, ALSO, 19 COMP. GEN. 90. THE PROVISIONS OF THE 1928 ACT WERE BROADENED BY THE ACTS OF JANUARY 16, 1936 (49 STAT. 1091), JUNE 27, 1942 (56 STAT. 391), AND AUGUST 4, 1942 (56 STAT. 736) TO INCLUDE, AMONG OTHER THINGS, SUBMARINE PAY FOR DUTY ON BOARD A SUBMARINE FROM THE TIME BUILDERS' TRIALS COMMENCED, BECAUSE OF THE HAZARDS AND DISCOMFORTS INVOLVED. SEE PAGE 2 S.REPT.NO. 1564, TO ACCOMPANY H.R. 7140, WHICH BECAME THE ACT OF AUGUST 4, 1942 (PUBLIC LAW 697).

THE ABOVE STATUTORY AUTHORITY AUTHORIZING SUBMARINE PAY WAS CARRIED FORWARD IN SECTION 204 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 (A) (2) WHICH AUTHORIZED, SUBJECT TO REGULATIONS OF THE PRESIDENT, INCENTIVE PAY TO MEMBERS OF THE UNIFORMED SERVICES FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS AND DEFINED "HAZARDOUS DUTY" TO MEAN, AMONG OTHER THINGS,"DUTY ON BOARD A SUBMARINE.' THE IMPLEMENTING EXECUTIVE ORDER PROVIDED (SECTIONS 6 AND 11 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950) THAT MEMBERS WHO ARE "ATTACHED" TO A SUBMARINE ARE ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY AND THAT THEY ARE ENTITLED TO SUCH PAY DURING AUTHORIZED LEAVES OF ABSENCE. IN CONSTRUING THE STATUTORY PROVISIONS AND THE APPLICABLE PROVISIONS OF EXECUTIVE ORDER NO. 10152, WE HELD, IN DECISION OF DECEMBER 17, 1952, 32 COMP. GEN. 287, CITED IN THE UNDER SECRETARY'S LETTER, THAT PAY ACCRUES TO A PERSON ATTACHED TO A SUBMARINE ONLY FOR THE PERFORMANCE OF DUTY ON BOARD A SUBMARINE, AND THAT THE LAW CONTEMPLATED AT MOST ONLY BRIEF ABSENCES FROM THE SUBMARINE WITHOUT BREAKING THE CONTINUITY OF DUTY ON BOARD A SUBMARINE. ON THE BASIS THAT SUBMARINE DUTY IS FACTUALLY CLOSELY RELATED TO SEA DUTY PAY AND SUBMARINE DUTY PAY ARE PROVIDED BY THE SAME ACT, IT WAS CONSIDERED THAT REGULATIONS ISSUED BY THE PRESIDENT IN SECTION 2 OF EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, GOVERNING PERIODS OF ABSENCE FROM SEA DUTY WITHOUT AFFECTING A MEMBER'S RIGHT TO SEA DUTY PAY PRESENTED A FAIR BASIS FOR DETERMINING A REASONABLE LIMIT ON ABSENCES FROM A SUBMARINE DURING WHICH THE RIGHT TO SUBMARINE PAY WOULD CONTINUE. SINCE THE PRESIDENT HAD DETERMINED IN THE EXECUTIVE ORDER THAT TEMPORARY DUTY ASHORE FOR PERIODS IN EXCESS OF 15 DAY BROKE THE CONTINUITY OF SEA DUTY FOR SEA PAY PURPOSES, WE CONCLUDED THAT BY THE SAME REASONING, ABSENCE FROM THE SUBMARINE TO WHICH ATTACHED FOR MORE THAN 15 DAYS ON TEMPORARY ADDITIONAL DUTY, AUTHORIZED LEAVE, OR OTHERWISE, BROKE THE CONTINUITY OF DUTY ON BOARD A SUBMARINE FOR PURPOSES OF SUBMARINE PAY. THEREAFTER, UPON REPRESENTATIONS OF THE DEPARTMENT OF THE NAVY THAT MEMBERS ASSIGNED TO NUCLEAR POWERED SUBMARINES SHOULD BE AFFORDED THE MAXIMUM OPPORTUNITY FOR EXTENDED PERIODS OF LEAVE AS PROVIDED UNDER THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33, WE CONCURRED IN DECISION OF DECEMBER 2, 1959, 39 COMP. GEN. 412, WITH THE ADMINISTRATIVE RECOMMENDATION THAT A 30-DAY LIMIT BE ESTABLISHED FOR PAYMENT ON INCENTIVE PAY FOR SUBMARINE DUTY TO MEMBERS WHOLE ON AUTHORIZED LEAVES OF ABSENCE.

IN CONSIDERING THE QUESTION WHETHER PERIODS OF ABSENCE ON AUTHORIZED LEAVE AND TEMPORARY DUTY SHOULD BE COMPUTED SEPARATELY IN DETERMINING ENTITLEMENT TO SUBMARINE PAY, WE SAID IN 42 COMP. GEN. 266, 269, THAT INCENTIVE PAY FOR SUBMARINE DUTY ACCRUES DURING THE PERIODS OF AUTHORIZED LEAVE ONLY IN THOSE CASES WHERE THE MEMBER IS IN A SUBMARINE DUTY PAY STATUS WHEN HIS PERIOD OF LEAVE BEGINS. ALSO, WE SAID, AMONG OTHER THINGS, THAT WHERE TEMPORARY ADDITIONAL DUTY IN EXCESS OF 15 DAYS IS FOLLOWED BY A PERIOD OF AUTHORIZED LEAVE NOT EXCEEDING 30 DAYS, THE ENTIRE PERIOD OF ABSENCE MUST BE CONSIDERED AS AN UNBROKEN PERIOD OF ABSENCE FROM DUTY ON BOARD A SUBMARINE FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO SUBMARINE PAY.

SECTION 204 (A) (2) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 (A) (2), WAS AMENDED BY THE ACT OF JULY 12, 1960, 74 STAT. 469 (PUBLIC LAW 86-635) TO AUTHORIZE THE CONTINUED PAYMENT OF SUBMARINE PAY DURING PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT TO NUCLEAR POWERED SUBMARINES. IN HEARINGS BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 10500, DATED APRIL 21, 1960, WHICH BECAME THE ACT OF JULY 12, 1960, IN RESPONSE TO A QUESTION FROM MR. BATES AS TO "HOW ONE ACQUIRES ENTITLEMENT TO SUBMARINE PAY TODAY? " REAR ADMIRAL L. P. RAMAGE, U.S. NAVY, DIRECTOR OF ANTISUBMARINE AND SUBMARINE WARFARE, OFFICE OF CHIEF OF NAVAL OPERATIONS, SAID (AT PAGE 4014):

ADMIRAL RAMAGE. ONE IS ENTITLED TO SUBMARINE PAY WHEN HE IS ATTACHED TO AND SO SERVING ON BOARD A SUBMARINE. THIS MEANS HE HAS TO HAVE PERMANENT ORDERS TO THE SHIP AND BE PHYSICALLY ON BOARD. THE ONLY EXCEPTION TO THAT MADE IN PRESENT LEGISLATION PERMITS THE MAN TO GO ON 15 DAYS' LEAVE OR FOR TEMPORARY ADDITIONAL DUTY FOR 15 DAYS. A PERIOD GREATER THAN THAT BREAKS UP THE CONTINUITY OF THE SERVICE FOR PAY PURPOSES UNDER PRESENT LEGISLATION. SO THAT WHEN WE TAKE THE SECOND CREW OFF FOR A PERIOD OF IN EXCESS OF 15 DAYS, THEY ARE NOT ENTITLED TO SUBMARINE PAY UNDER PRESENT LEGISLATION.

IN THAT STATE OF THE LAW THERE CAN BE LITTLE DOUBT THAT, EXCEPT FOR BRIEF PERIODS OF TEMPORARY DUTY ASHORE, OR WHILE ON AUTHORIZED LEAVE, OR DURING OFF-BOARD PERIODS OF TRAINING AND REHABILITATION IN THE CASE OF MEMBERS SERVING ON NUCLEAR POWERED SUBMARINES, PAYMENT OF SUBMARINE PAY ON A CONTINUING BASIS WAS AUTHORIZED ONLY FOR ON-BOARD PERSONNEL, THAT IS SUCH PAY WAS AUTHORIZED ONLY FOR THOSE MEMBERS WHOSE DESIGNATED POST OF DUTY WAS THE SUBMARINE AND WHO WERE BERTHED AND MESSED ABOARD THE SUBMARINE.

THE INCENTIVE PAY PROVISIONS FOR THE PERFORMANCE OF HAZARDOUS DUTY ON BOARD A SUBMARINE (37 U.S.C. 301 (A) (2) FORMERLY 37 U.S.C. 235 (A) (2) ( WERE AGAIN AMENDED IN 1963 BY SECTION 6 OF THE UNIFORMED SERVICES PAY ACT OF 1963, 77 STAT. 210, 215, TO PROVIDE THAT, " "HAZARDOUS DUTY" MEANS DUTY"---

* * * AS DETERMINED BY THE SECRETARY CONCERNED, ON A SUBMARINE (INCLUDING, IN THE CASE OF NUCLEAR-POWERED SUBMARINES, PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT THERETO), OR, IN THE CASE OF PERSONNEL QUALIFIED IN SUBMARINES, AS A PROSPECTIVE CREW MEMBER OF A SUBMARINE BEING CONSTRUCTED, AND DURING PERIODS OF INSTRUCTION TO PREPARE FOR ASSIGNMENT TO A SUBMARINE OF ADVANCED DESIGN OR A POSITION OF INCREASED RESPONSIBILITY ON A SUBMARINE;

THE IMPLEMENTING OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, PROVIDES IN SECTION 106, AS FOLLOWS:

SEC. 106. AS DETERMINED BY THE SECRETARY OF THE NAVY MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ATTACHED TO A SUBMARINE WHICH IS IN AN ACTIVE STATUS AND MEMBERS QUALIFIED IN SUBMARINES WHO, PURSUANT TO COMPETENT ORDERS, ARE ASSIGNED AS PROSPECTIVE CREW MEMBERS OF A SUBMARINE UNDER CONSTRUCTION OR ARE RECEIVING INSTRUCTION TO PREPARE FOR ASSIGNMENT TO A SUBMARINE OF ADVANCED DESIGN OR FOR A POSITION OF INCREASED RESPONSIBILITY ON A SUBMARINE SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY. IN THE CASE OF NUCLEAR-POWERED SUBMARINES THIS ENTITLEMENT SHALL INCLUDE PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT THERETO. A MEMBER WHO, PURSUANT TO COMPETENT ORDERS, PERFORMS DUTY AS AN OPERATOR OR CREW MEMBER OF AN OPERATIONAL, SELF-PROPELLED SUBMERSIBLE, INCLUDING UNDERSEA EXPLORATION AND RESEARCH VEHICLES, SHALL LIKEWISE BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY.

THE UNDER SECRETARY TAKES THE VIEW THAT THE PROVISIONS IN THE 1963PAY ACT DEFINING "HAZARDOUS DUTY" TO MEAN DUTY AS DETERMINED BY THE SECRETARY CONCERNED, ON A SUBMARINE, AND THE PROVISIONS IN EXECUTIVE ORDER NO. 11157, THAT, AS DETERMINED BY THE SECRETARY OF THE NAVY, MEMBERS WHO, PURSUANT TO COMPETENT ORDERS ARE "ATTACHED" TO A SUBMARINE ARE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY, VEST BROAD AUTHORITY IN THE SECRETARY OF THE NAVY TO DETERMINE CONDITIONS UNDER WHICH ENTITLEMENT TO SUBMARINE PAY EXISTS. HE ALSO SAYS THAT NEITHER THE LAW NOR THE EXECUTIVE ORDER IMPOSE MINIMUM PERFORMANCE REQUIREMENTS FOR ENTITLEMENT TO SUBMARINE PAY AND REFERS TO CERTAIN INSTANCES IN THE LAW (37 U.S.C. 301) RELATING TO ENTITLEMENT TO HAZARDOUS DUTY PAY WHICH REQUIRE FREQUENT AND REGULAR PARTICIPATION IN AERIAL AND GLIDER FLIGHTS. IN ADDITION, HE REFERS TO THE SPECIFIC MINIMUM PERFORMANCE REQUIREMENTS IN THE EXECUTIVE ORDER RELATING TO HAZARDOUS DUTY PAY FOR PARACHUTE DUTY, LEPROSARIUM DUTY AND SEA DUTY.

IN A DISCUSSION OF THE DUTIES PERFORMED BY OPERATIONAL SUBMARINE STAFFS THE UNDER SECRETARY STATES THAT SUCH MEMBERS ARE REQUIRED "TO EMBARK IN SUBMARINES AS OFTEN AS NECESSARY TO PROVIDE EXPERIENCE, TECHNICAL ADVICE AND GUIDANCE IN THE PROPER EXECUTION OF OPERATIONS,LOGISTICS, INTELLIGENCE, COMMUNICATIONS, TRAINING, AND OTHER FUNCTIONS; " AND THAT DETERMINATIONS AS TO THE STAFF MEMBERS TO WHOM SUBMARINE PAY IS TO BE PAID ON A CONTINUING BASIS ARE MADE BY THE CHIEF OF NAVAL OPERATIONS ON THE BASIS OF INFORMATION RELATING TO THE NATURE OF THE DUTIES OF PARTICULAR OPERATIONAL STAFF MEMBERS. IT IS ALSO STATED THAT BILLETS OF THE OPERATIONAL STAFF WHICH DO NOT NORMALLY REQUIRE THEM TO PERFORM DUTIES ON BOARD SUBMARINES AT SEA ARE NOT DESIGNATED AS ENTITLING THE MEMBERS TO CONTINUOUS SUBMARINE PAY.

CONCERNING THE UNDER SECRETARY'S STATEMENT THAT STAFF MEMBERS ARE REQUIRED TO EMBARK IN SUBMARINES TO PROVIDE EXPERIENCE, TECHNICAL ADVICE AND GUIDANCE IN THE PROPER EXECUTION OF OPERATIONS, LOGISTICS, INTELLIGENCE, COMMUNICATIONS, TRAINING AND OTHER FUNCTIONS, WE FOUND IN OUR REVIEW OF SUBMARINE PAY STAFF BILLETS THAT AS OF AUGUST 1, 1963, 448 ENLISTED STAFF BILLETS HAD BEEN DESIGNATED BY THE CHIEF OF NAVAL OPERATIONS FOR SUBMARINE PAY ON A CONTINUOUS BASIS AND OF THIS NUMBER 159 WERE YEOMEN AND 82 WERE STEWARDS. WE INTERVIEWED CERTAIN YEOMEN AND STEWARDS AND THE YEOMEN STATED THAT THEY GENERALLY ACCOMPANY THE SQUADRON OF DIVISION COMMANDER AND ACT AS OBSERVERS, HELP WITH INSPECTION REPORTS, PERFORM CLERICAL AND ADMINISTRATIVE DUTIES AND ASSIST YEOMEN ASSIGNED TO THE SUBMARINE. THE STEWARDS STATED THAT THEY GENERALLY ACCOMPANY THE FLOTILLA OR DIVISION COMMANDERS AND PERFORM DUTIES SUCH AS COOKING, HELPING IN THE WARDROOM, TAKING CARE OF THE COMMANDER'S NEEDS, ACTING AS A REPLACEMENT FOR ONE OF THE SUBMARINE STEWARDS WHO MAY BE ON LEAVE AND ASSISTING THE OTHER STEWARDS WHEN GUESTS WERE ON BOARD THE SUBMARINE. OUR VIEW THERE IS CONSIDERABLE DOUBT THAT THE SERVICES PERFORMED BY THESE YEOMEN AND STEWARDS MAY PROPERLY BE VIEWED AS BEING REQUIRED BY THE UNDER SECRETARY'S ENUMERATED EMBARKATION REQUIREMENTS. NOWHERE IS IT SHOWN THAT THE SUBMARINE IS THE DESIGNATED POST OF DUTY OF ANY OF THESE STAFF MEMBERS AND IT IS NOT EVEN CONTENDED THAT THEY ARE REGULARLY BERTHED AND SUBSISTED ON SUBMARINES. ON THE CONTRARY, WE HAVE EXAMINED AT RANDOM ENLISTED PAY RECORDS OF CERTAIN SUBMARINE STAFF MEMBERS COMMENCING JANUARY 1, 1963, AND SUCH RECORDS SHOW THAT THESE ENLISTED MEMBERS WERE EITHER SUBSISTED IN A MESS ASHORE OR ON A SURFACE VESSEL, OR WERE CREDITED WITH COMMUTED RATIONS. (SEE THE ENLISTED PAY RECORDS OF EUGENE D. SWARENS, 287 39 94; RICHARD L. SMITH, 373 00 03; PETER R. TRONE, 849 45 38; CLINTON R. WHITE, 426 01 10 AND DENNIS I. CARSON, 236 94 18.) THERE APPEARS TO BE LITTLE DOUBT THAT THEY LIKEWISE ARE NORMALLY EITHER BERTHED ABOARD A SURFACE VESSEL OR QUARTERED ASHORE. OUR INFORMATION IS THAT THIS SAME BERTHING AND MESSING SITUATION EXISTS IN THE CASE OF OFFICERS ASSIGNED TO OPERATIONAL SUBMARINE COMMAND STAFFS.

THE UNDER SECRETARY REFERS TO OUR DECISION OF APRIL 27, 1951, B 90200, AND HE STATES THAT THE CONDITIONS UNDER CONSIDERATION AT THAT TIME WERE SIMILAR TO THOSE NOW UNDER CONSIDERATION. THE DECISION OF APRIL 27, 1951, INVOLVED THE PROPRIETY OF CERTAIN EXCEPTIONS WHICH HAD BEEN TAKEN TO THE PAYMENT OF SUBMARINE PAY TO SUBMARINE STAFF MEMBERS PENDING A SHOWING THAT SUBMARINE DUTY WAS ACTUALLY PERFORMED ON THE DAYS FOR WHICH PAYMENT WAS MADE. THE EXCEPTIONS WERE REMOVED ON THE BASIS OF REPRESENTATIONS BY THE SECRETARY OF THE NAVY THAT THE STAFF MEMBERS CONCERNED, ALTHOUGH NOT PERFORMING REQUIRED DUTY ON BOARD THE PARTICULAR SUBMARINE TO WHICH ATTACHED, DID PERFORM SUBSTANTIAL PERIODS OF DUTY ON BOARD VARIOUS SUBMARINES AND OVER A NORMAL DUTY TOUR WERE EXPOSED TO SUBSTANTIALLY THE SAME HAZARDS AND DISCOMFORTS OF SUBMARINE DUTY, INCLUDING SUBMERGED OPERATIONS, AS THE CREW MEMBERS THEMSELVES, REPRESENTATIONS WHICH WE UNDERSTOOD TO MEAN THAT FROM A DAILY PERFORMANCE STANDPOINT, THE ON BOARD DUTY SITUATION OF STAFF MEMBERS WAS NO DIFFERENT FROM CREW MEMBERS. THE ACTION TAKEN IN THAT DECISION DID NOT STAND FOR THE PROPOSITION THAT SUBMARINE STAFF MEMBERS WHOSE DESIGNATED POSTS OF DUTY ARE NOT ON A SUBMARINE AND WHO DO NOT IN FACT PERFORM DUTY ON BOARD A SUBMARINE ON A SUBSTANTIALLY CONTINUOUS BASIS ARE, UNLIKE CREW MEMBERS OF A SUBMARINE WHO ARE IN A CONTINUOUS ON BOARD DUTY STATUS, ENTITLED TO SUBMARINE PAY ON A CONTINUOUS BASIS ON THE SOLE BASIS OF A SHOWING OF ATTACHMENT TO A PARTICULAR SUBMARINE. IN THE LIGHT OF PRIOR AND SUBSEQUENT DECISIONS IN THIS AREA AND THE LEGISLATIVE HISTORY OF THE SUBMARINE DUTY PAY PROVISIONS REVIEWED ABOVE, WE PERCEIVE NO SOUND BASIS FOR SUCH A CONCLUSION.

IN THIS REGARD, THIS PRECISE PROBLEM WAS THE SUBJECT OF THE THIRTY FIRST REPORT OF THE PREPAREDNESS SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, ENTITLED ,REPORT ON CONDITIONS AT SIX NAVY AND MARINE CORPS TRAINING CENTERS," SUBMITTED OCTOBER 25, 1951. THE COMMITTEE REPORT STATES (AT PAGE 11) AS FOLLOWS:

HAZARDOUS-DUTY COMPENSATION FOR SUBMARINERS

EXTRA COMPENSATION, AMOUNTING TO 30 TO 40 PERCENT OF BASE PAY, IS BEING AWARDED MONTHLY TO PERSONNEL NOT ACTUALLY WORKING OR LIVING ABOARD SUBMARINES. IT IS UNDERSTOOD THAT THESE PERSONNEL ARE TECHNICALLY ASSIGNED TO A SUBMARINE BECAUSE OF THEIR OPERATION AND COMMAND RESPONSIBILITIES. THIS APPLIES TO BOTH OFFICERS AND ENLISTED MEN OF DIVISION STAFFS, SQUADRON STAFFS, AND SUBMARINE FORCE STAFFS. MEN ASSIGNED TO THESE SEVERAL STAFFS, WHILE CHARGED WITH SUPERVISION AND COMMAND FUNCTIONS, ARE NOT ACTUALLY SERVING ABOARD OPERATING SUBMARINES, AND ARE NOT SUBJECTED TO THE CONTINUING HAZARDS AND HARDSHIPS ACCOMPANYING SUCH SERVICE.

MANY OF THE OFFICERS AND SOME OF THE ENLISTED MEN OF THESE STAFF SECTIONS DO, OCCASIONALLY, RIDE SUBMARINES, AND THE SUBCOMMITTEE RECOGNIZES THAT DURING THESE OCCASIONAL PERIODS ABOARD SUBMARINES THEY ARE LEGITIMATELY ENTITLED TO EXTRA COMPENSATION. HOWEVER, ABUSES ARE EVIDENT WHEN COMMUNICATIONS PERSONNEL, STEWARDS, DRIVERS, AND OTHERS WHO RARELY, IF EVER, GO ABOARD A SUBMARINE DRAW HAZARDOUS-DUTY COMPENSATION MERELY BECAUSE THEY ARE ATTACHED TO ONE OF THE STAFFS.

AFTER CITING THE ACT OF AUGUST 4, 1942 (56 STAT. 736), AND ITS LEGISLATIVE HISTORY, THE COMMITTEE CONCLUDED:

THE SUBCOMMITTEE BELIEVES THAT THE FOREGOING SUFFICIENTLY INDICATES THE INTENT OF CONGRESS IN AWARDING HAZARDOUS-DUTY PAY. WHILE DESIRING TO REWARD MEN FOR SUBMITTING THEMSELVES TO THE HARDSHIPS AND DANGERS OF SUBMARINE SERVICE, CONGRESS DID NOT WISH TO COMPENSATE FOR TOKEN SERVICE. THE EXTRA PAY WAS AUTHORIZED ONLY FOR THOSE PERSONNEL WHO ACTUALLY EXPERIENCED THE HARDSHIPS--- NOT FOR THOSE ASHORE IN SAFE, COMFORTABLE QUARTERS.

THE DEPARTMENT OF THE NAVY ASSURED THE COMMITTEE THAT THEREAFTER SUBMARINE PAY WOULD BE PAID ONLY IN AUTHORIZED CASES.

WE DO NOT AGREE THAT NEITHER THE LAW NOR THE EXECUTIVE ORDER IMPOSES MINIMUM DUTY PERFORMANCE REQUIREMENTS AS A CONDITION PRECEDENT TO ENTITLEMENT TO SUBMARINE DUTY PAY. THE LAW, AT LEAST SINCE 1928, HAS PROVIDED SUCH PAY FOR SERVICE EITHER "ON BOARD A SUBMARINE," "ABOARD A SUBMARINE," OR "ON A SUBMARINE.' IN VIEW OF THE HISTORICAL DEVELOPMENT OF SUBMARINE PAY AND ITS LEGISLATIVE HISTORY IT IS OUR VIEW THAT, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE BY STATUTE, SUCH TERMS OPERATE TO LIMIT THE PAYMENT OF SUCH PAY TO ON BOARD MEMBERS, THOSE WHO ARE ACTUALLY WORKING OR LIVING ABOARD SUBMARINES. IN THIS REGARD IT HAS LONG BEEN RECOGNIZED THAT AN OFFICER WHO PERFORMS TEMPORARY DUTY ABOARD A SUBMARINE IS ENTITLED TO SUBMARINE PAY, EXCEPT AS OTHERWISE PROVIDED BY LAW, ONLY FOR THE ACTUAL NUMBER OF DAYS SUCH TEMPORARY DUTY IS PERFORMED ABOARD A SUBMARINE. COMP. GEN. 131.

WE FIND NO REASONABLE BASIS ON WHICH WE COULD BASE A CONCLUSION THAT THE 1963 LAW VESTS BROAD AUTHORITY IN THE SECRETARY OF THE NAVY "TO DETERMINE THE CONDITIONS UNDER WHICH ENTITLEMENT TO SUBMARINE PAY EXISTS.' THE PHRASE "AS DETERMINES BY THE SECRETARY CONCERNED" IN THE 1963 ACT (SECTION 6, 77 STAT. 215) WAS FIRST PUT INTO THE LAW IN THE 1960 ACT AND AS USED IN THE 1960 ACT PLAINLY HAD APPLICATION ONLY TO DUTIES PERFORMED DURING PERIODS OF TRAINING AND REHABILITATION FOR NUCLEAR SUBMARINERS. WHILE THE POSITION OF THE PHRASE WAS CHANGED IN THE 1963 ACT, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THAT ACT TO SHOW ANY PURPOSE ON THE PART OF CONGRESS TO SO EXPAND THE AUTHORITY OF THE SECRETARY OF THE NAVY WITH RESPECT TO SUBMARINE PAY AS TO EMPOWER HIM TO VIRTUALLY NULLIFY THE PROVISION FOR DUTY "ON A SUBMARINE.' IF THAT WERE THE CORRECT VIEW, ENTITLEMENT TO SUBMARINE PAY ON A CONTINUOUS BASIS COULD BE CONFERRED ON ALL PERSONNEL ASSIGNED TO SUBMARINE TENDERS, TO SUBMARINE ACTIVITIES BASED IN THE PENTAGON, TO SUBMARINE ACTIVITIES OF THE BUREAU OF SHIPS, ETC., BY THE SIMPLE EXPEDIENT OF ATTACHMENT TO A SUBMARINE WITHOUT REGARD TO WHETHER SUCH PERSONNEL EVER GO ABOARD AN OPERATIONAL SUBMARINE. SUCH A VIEW WOULD NOT ONLY RENDER MEANINGLESS THE TERM "ON A SUBMARINE," IN THE STATUTE BUT THERE WOULD BE NO NEED FOR THE PROVISIONS AUTHORIZING SUBMARINE PAY IN THE SPECIAL CATEGORIES OF OFF BOARD SERVICE.

THE PURPOSE OF SECTION 6 OF THE 1963 LAW, AS WE UNDERSTAND IT, IS TO AUTHORIZE THE PAYMENT OF SUBMARINE PAY ON A CONTINUOUS BASIS TO THOSE OFF BOARD MEMBERS FALLING IN THE SPECIAL CATEGORY THERE DESCRIBED. THIS VIEW IS SUPPORTED BY THE FOLLOWING EXCERPTS FROM THE HEARINGS BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 3006, SUPERSEDED BY H.R. 5555, WHICH BECAME SECTION 6 OF THE 1963 ACT (AT PAGES 1686-1689):

MR. BLANDFORD. THIS SECTION IS INTENDED TO COVER SUBMARINERS WHO LEAVE CONVENTIONAL SUBMARINES AND GO TO NUCLEAR-POWERED SUBMARINES.

THE NAVY--- AND I WOULD LIKE THIS FOR THE RECORD--- THE NAVY HAS HAD CONSIDERABLE DIFFICULTY IN OBTAINING RECRUITS FOR THE NUCLEAR SUBMARINE PROGRAM, PARTICULARLY FROM THOSE WHO ARE QUALIFIED IN CONVENTIONAL SUBMARINES.

I WOULD LIKE TO ASK ADMIRAL SMEDBERG IF I AM CORRECT IN THAT STATEMENT.

ADMIRAL SMEDBERG. YES, SIR. THE ONLY THOUGHT I WAS TRYING TO PUT TOGETHER IN MY MIND WAS WHETHER THIS TAKES CARE OF THE MAN WHO GOES FROM A NUCLEAR SUBMARINE TO A NUCLEAR SUBMARINE UNDER CONSTRUCTION. NOW IF IT TAKES CARE OF THAT IT IS PERFECTLY ALL RIGHT.

OUR PROBLEM TODAY IS THIS: THE MAN WHO HAS BEEN IN SUBMARINES FOR YEARS IS IN THERE BECAUSE HE LIKES SUBMARINES. EVERYBODY DOESN-T LIKE SUBMARINES. WE WANT HIM TO VOLUNTEER TO GO INTO THE NUCLEAR PROGRAM. WOULD LIKE TO, BUT HE HAS TO LOSE PAY FOR 1 YEAR RIGHT NOW WHILE HE IS GOING THROUGH THE PROCESS, EITHER ATTACHED TO A SUBMARINE UNDER CONSTRUCTION OR UNDER INSTRUCTION.

MR. BLANDFORD. I WILL READ THE EXISTING LAW: "FOR THE PURPOSE OF THIS SUBSECTION "HAZARDOUS DUTY" MEANS DUTY ON BOARD A SUBMARINE, INCLUDING IN THE CASE OF NUCLEAR-POWERED SUBMARINES PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT THERETO, AS DETERMINED BY THE SECRETARY CONCERNED, AND INCLUDING SUBMARINES UNDER CONSTRUCTION FROM THE TIME BUILDER'S DRILLS BEGIN.'

NOW THE LANGUAGE WOULD BE CHANGED TO READ: "AS DETERMINED BY THE SECRETARY CONCERNED, ON A SUBMARINE, INCLUDING THE CASE OF NUCLEAR POWERED SUBMARINES, PERIODS OF TRAINING AND REHABILITATION AFTER ASSIGNMENT THERETO.'

IN LINE WITH SUCH TESTIMONY, IT WAS POINTED OUT ON PAGE 23 OF S.REPR.NO. 387, TO ACCOMPANY H.R. 5555, THAT THE LANGUAGE OF THE BILL WOULD PERMIT THE CONTINUATION OF SUBMARINE PAY DURING PERIODS WHEN SUBMARINERS ARE ENGAGED IN TRAINING OR ASSIGNED TO A SUBMARINE UNDER CONSTRUCTION. OFF BOARD OPERATIONAL SUBMARINE STAFF PERSONNEL ARE NOT INCLUDED IN ANY CATEGORY OF SUBMARINE PERSONNEL ENTITLED TO RECEIVE INCENTIVE PAY ON A CONTINUOUS BASIS. EXECUTIVE ORDER NO. 11157 CANNOT, OF COURSE, CONFER ENTITLEMENT TO SUBMARINE PAY WHERE SUCH ENTITLEMENT DOES NOT EXIST UNDER THE STATUTORY PROVISIONS ON WHICH IT IS BASED.

ACCORDINGLY, IT MUST BE CONCLUDED THAT UNDER PRESENT STATUTORY PROVISIONS OFF BOARD BASED SUBMARINE STAFF MEMBERS WHO DO NOT PERFORM THE MAJORITY OF THEIR ASSIGNED DUTIES ON A SUBMARINE ARE NOT LEGALLY ENTITLED TO INCENTIVE PAY ON A CONTINUOUS BASIS FOR THE PERFORMANCE OF SUBMARINE DUTY.

IN VIEW, HOWEVER, OF (1) THE LENGTH OF TIME THE PRACTICE OF PAYING SUBMARINE PAY ON A CONTINUOUS BASIS TO MEMBERS OF SUBMARINE FORCE COMMAND STAFFS HAS GONE UNQUESTIONED, (2) THE APPARENT MISUNDERSTANDING OF THE BASIS FOR OUR DECISION OF APRIL 27, 1951, B-90200, (3) THE REPRESENTATIONS MADE AT THE CONFERENCE OF JULY 8, 1964, AND (4) THE VIEWS EXPRESSED BY THE CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, IN HIS LETTER OF AUGUST 11, 1964, WE WILL NOT QUESTION PAYMENTS OF THE TYPE INVOLVED MADE PRIOR TO MARCH 1, 1965. THIS DELAY WILL AFFORD AN OPPORTUNITY FOR YOUR DEPARTMENT TO PRESENT THE MATTER TO CONGRESS WITH A RECOMMENDATION FOR NEW LEGISLATION IF DEEMED APPROPRIATE AND TO MAKE ADJUSTMENTS IN PERSONNEL ASSIGNMENTS OR TO TAKE SUCH OTHER ACTION AS MAY BE CONSIDERED ADVISABLE IN THE LIGHT OF THIS DECISION. A COPY OF THIS DECISION IS BEING FORWARDED TO THE CHAIRMAN, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, FOR HIS INFORMATION.

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