B-28788, NOVEMBER 14, 1942, 22 COMP. GEN. 467

B-28788, NOVEMBER 14, 1942, 22 COMP. GEN. 467

RENTAL ALLOWANCE - NAVY OFFICERS - RIGHTS AS AFFECTED BY TEMPORARY SEA DUTY A NAVY OFFICER, WITHOUT DEPENDENTS, WHO IS TEMPORARILY ASSIGNED TO SEA DUTY IN ADDITION TO HIS SHORE DUTY MAY BE PAID THE RENTAL ALLOWANCE AUTHORIZED BY SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, WHERE THERE HAS BEEN A PROPER ADMINISTRATIVE DETERMINATION THAT HIS SHORE DUTY IS PARAMOUNT AND, THEREFORE, THAT HE IS NOT ON "SEA DUTY" AS THAT TERM IS DEFINED IN THE EXECUTIVE REGULATIONS ISSUED PURSUANT TO SAID SECTION 6, BUT HE MAY NOT FOR THE SAME PERIOD RECEIVE EXTRA PAY FOR SEA DUTY, AUTHORIZED BY SECTION 2 OF THE ACT, BY VIRTUE OF AN INCONSISTENT ADMINISTRATIVE DETERMINATION THAT, FOR SUCH PURPOSE, HE IS ON SEA DUTY. 22 COMP. GEN. 289, MODIFIED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 14, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 23, 1942, FILE JAG:K:WJG GB, SO 101 273, AS FOLLOWS:

REFERENCE IS MADE TO THE ASSISTANT COMPTROLLER GENERAL'S DECISION B 28788, DATED SEPTEMBER 30, 1942, IN WHICH IT IS HELD THAT AN OFFICER WITHOUT DEPENDENTS, WHOSE PARAMOUNT DUTY IS SHORE DUTY AND WHO IS PERFORMING TEMPORARY ADDITIONAL DUTY AT SEA, IS NOT ENTITLED TO DRAW RENTAL ALLOWANCE FOR SUCH PERIOD OF TEMPORARY DUTY WHILE AT THE SAME TIME DRAWING SEA DUTY PAY PURSUANT TO THE PROVISIONS OF ALNAV 131-42, ISSUED UNDER THE AUTHORITY OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942 ( PUBLIC LAW 607 - 77TH CONGRESS).

YOUR DETERMINATION IS IN PART BASED UPON SECTION 3 OF EXECUTIVE ORDER NO. 4063, DATED AUGUST 13, 1924, ISSUED UNDER THE AUTHORITY OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED (37 U.S.C. 10), WHICH, UNDER THE TITLE " PAYMENTS," PROVIDES:

"B--- AN OFFICER WHO HAS NO DEPENDENTS SHALL NOT BE PAID A RENTAL ALLOWANCE FOR ANY PERIOD WHILE HE IS ON FIELD OR SEA DUTY.'

YOUR ATTENTION IS INVITED TO EXECUTIVE ORDER NO. 9255, DATED OCTOBER 13, 1942, ISSUED PURSUANT TO SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, WHICH SUPERSEDES EXECUTIVE ORDER NO. 4063, SUPRA. EXECUTIVE ORDER NO. 9255 OMITS THE ABOVE QUOTED DEFINITION AND IN PARAGRAPH I (C) RETAINS IN SUBSTANTIALLY THE SAME FORM THE PRIOR DEFINITION OF SEA DUTY, AS FOLLOWS:

"THE TERM "SEA DUTY" SHALL MEAN SERVICE AT SEA BY AN OFFICER ON A VESSEL UNDER ORDERS (1) REQUIRING THE OFFICER TO REPORT FOR DUTY ON BOARD A DESIGNATED VESSEL OR (2) ASSIGNING HIM TO DUTY IN COMMAND OF VESSELS OR AS A MEMBER OF THE STAFF OF AN OFFICER IN COMMAND OF VESSELS: PROVIDED, THAT THE OFFICER CONCERNED IS NOT DURING THE SAME PERIOD REQUIRED TO RENDER SERVICE ON SHORE OF A CHARACTER DETERMINED BY THE DEPARTMENT CONCERNED TO BE PARAMOUNT TO THE DUTY WHICH HE IS REQUIRED TO RENDER ATSEA.'

UNDER THE PRIOR EXECUTIVE ORDER NO. 4063 THE GENERAL ACCOUNTING OFFICE HAS ALLOWED CREDIT FOR RENTAL ALLOWANCES PAID TO AN OFFICER WHO WAS TEMPORARILY ON SEA DUTY WHERE THE NAVY DEPARTMENT CERTIFIED THAT DURING THE PERIOD THE OFFICER IN QUESTION WAS AT SEA HIS DUTY ON SHORE WAS PARAMOUNT. (LETTER FROM ASSISTANT CHIEF, ACCOUNTING AND BOOKKEEPING DIVISION, GENERAL ACCOUNTING OFFICE, TO SECRETARY OF THE NAVY, DATED DECEMBER 14, 1936, FILE AB 3.1 WJK; SEE, ALSO, LETTER OF GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, TO SECRETARY OF THE NAVY, DATED OCTOBER 21, 1936, A-71542.)

PARTICULAR ATTENTION ALSO IS INVITED TO THE ACTING COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF FEBRUARY 2, 1937, A 83188, WHICH CONSIDERED THE QUESTION WHETHER PAYMENTS MADE IN ACCORDANCE WITH A PROPOSED CHANGE IN THE PAY BILL INSTRUCTIONS WOULD BE PASSED IN THE ACCOUNTS OF DISBURSING OFFICERS. THE PROPOSED CHANGE CONTEMPLATED MODIFICATION OF PARAGRAPH A6 (O) (1) OF THE PAY BILL INSTRUCTIONS TO READ AS FOLLOWS, THE NEW MATTER PROPOSED BEING INDICATED BY ITALICS:

"/O) AN OFFICER WITHOUT DEPENDENTS IS ENTITLED TO RENTAL ALLOWANCE.

"/1) WHEN STATIONED ON PERMANENT SHORE DUTY (EITHER WITHIN OR WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES) EXCEPT WHEN ASSIGNED THEREAT, AS QUARTERS, THE NUMBER OF ROOMS PRESCRIBED BY LAW FOR AN OFFICER OF HIS RANK, OR A LESS NUMBER OF ROOMS DETERMINED TO BE ADEQUATE IN THE PARTICULAR CASE FOR THE OCCUPANCY OF THE OFFICER. THE RENTAL ALLOWANCE THUS PAYABLE CONTINUES FOR TIME ABSENT FROM SUCH STATION ON AUTHORIZED LEAVE (NOT IN EXCESS OF STATUTORY LEAVE LIMIT), ON SICK LEAVE, IN HOSPITAL, UNDER ARREST, OR ON TEMPORARY DUTY AWAY FROM SUCH PERMANENT STATION, INCLUDING PERIODS OF TEMPORARY SEA DUTY WHERE THE ABOVE DUTY IS DETERMINED BY THE DEPARTMENT TO BE PARAMOUNT TO THE DUTY WHICH HE IS REQUIRED TO RENDER AT SEA.'

IT WAS CONCLUDED IN THIS DECISION, AS FOLLOWS:

"THE PROPOSED AMENDMENT WOULD SEEM TO LIMIT THE PLAIN WORDS OF THE STATUTE TO A PERMANENT ASSIGNMENT TO SEA DUTY, AT LEAST WITHIN THE DISCRETION OF THE DEPARTMENT IN DETERMINING THAT A SHORE DUTY IMPOSSIBLE OF PERFORMANCE IS PARAMOUNT TO SEA DUTY ACTUALLY PERFORMED IN CIRCUMSTANCES MAKING IMPOSSIBLE THE PERFORMANCE OF THE SUSPENDED SHORE DUTY. THIS OFFICE IS UNWILLING TO TAKE THAT VIEW OF THE STATUTE. THERE HAVE BEEN CASES WHERE THE OFFICER HAS BEEN TEMPORARILY ASSIGNED TO DUTY AT SEA IN CIRCUMSTANCES WHERE HE WOULD BE REQUIRED TO MAINTAIN HIS QUARTERS ASHORE AND WHERE IT WAS HARDLY CONTEMPLATED BY THE DRAFTSMEN OF THE STATUTE THAT THE OFFICER SHOULD BE DEPRIVED OF HIS RENTAL ALLOWANCE ASHORE. SUCH WAS THE CASE OF AN OFFICER ASSIGNED TO DUTY IN COMMAND OF A NAVAL R.O.T.C. UNIT AT A COLLEGE, WHO ACCOMPANIED THE R.O.T.C. UNIT ON A SUMMER PRACTICE CRUISE OF SOME TWO WEEKS. THIS VIEW THAT THE STATUTE PERMITTED SOME QUALIFICATION WAS ALSO APPLIED IN THE CASE OF THE OFFICER TO WHOM YOU REFER, WHERE THE OFFICER WAS ASSIGNED FOR MEDICAL DUTY ON A VESSEL DURING ITS "SHAKEDOWN" CRUISE AND THE PERIOD OF SERVICE THEREON WAS THREE MONTHS AND FIVE DAYS. WHILE THE STATUTE DOES NOT REQUIRE SUCH STRICT CONSTRUCTION THAT FOR A FEW DAYS' SERVICE AT SEA THE OFFICER SHALL BE DEPRIVED OF HIS RENTAL ALLOWANCE FOR QUARTERS ASHORE, YET THE CASE TO WHICH THE PAYMASTER GENERAL REFERS REPRESENTS SUBSTANTIALLY THE MAXIMUM LIMIT WHERE THE OFFICER CAN BE ACTUALLY ON SEA DUTY BUT ENTITLED TO RENTAL ALLOWANCE BECAUSE ASSIGNED TO PERMANENT DUTY AT A SHORE STATION, UNDER THE PROVISIONS OF THE STATUTE APPLICABLE TO THE DUAL ASSIGNMENTS OF THE OFFICERS. THE PROPOSED AMENDMENT IS THEREFORE STATED TOO BROADLY FOR ACCEPTANCE FOR APPLICATION IN THE AUDIT OF ACCOUNTS. HOWEVER, TO MEET THE PRACTICE FOLLOWED IN THE AUDIT, THE PROPOSED AMENDMENT MAY BE MODIFIED TO READ AS FOLLOWS:

" "INCLUDING PERIODS OF TEMPORARY SEA DUTY, NOT EXCEEDING FOUR MONTHS, WHERE THE SHORE DUTY IS DETERMINED BY THE DEPARTMENT TO BE PARAMOUNT TO THE DUTY WHICH HE IS REQUIRED TO RENDER AT SEA.'"

"YOUR QUESTION IS ANSWERED ACCORDINGLY.'

IT WILL BE SEEN FROM THE FOREGOING THAT UNDER THE WORDING OF FORMER EXECUTIVE ORDER NO. 4063 OF AUGUST 13, 1924, AS WELL AS PRIOR DECISIONS OF YOUR OFFICE, SEA DUTY FOR RENTAL ALLOWANCE PURPOSES HERETOFORE HAS NOT BEEN CONSIDERED AS INCLUDING SHORT PERIODS OF TEMPORARY DUTY WHERE THE DUTY ASHORE WAS DETERMINED BY THE NAVY DEPARTMENT TO BE PARAMOUNT TO THE DUTY WHICH THE OFFICER WAS REQUIRED TO RENDER AT SEA. THE RIGHT OF SUCH OFFICERS TO SEA DUTY PAY FOR PERIODS OF TEMPORARY DUTY AT SEA IS ALSO EQUALLY CLEAR, FOR THE OBVIOUS REASON THAT PRESENT OR POTENTIAL DANGER IS TO BE ENCOUNTERED AT SEA IN THESE WARTIME DAYS IRRESPECTIVE OF WHETHER THE DUTY BE TEMPORARY OR PERMANENT.

AS INDICATED IN THE NAVY DEPARTMENT'S PREVIOUS LETTER OF SEPTEMBER 9, 1942, RELATIVE TO THIS MATTER, RENTAL ALLOWANCE IS PAID TO AN OFFICER, WITHOUT DEPENDENTS, WHEN HE IS TEMPORARILY EMPLOYED ON SEA DUTY IN CASES WHERE HIS PARAMOUNT DUTY IS HELD TO BE ON SHORE, IN ORDER TO AVOID THE HARDSHIP THAT WOULD OCCUR WERE THE OFFICER DEPRIVED OF HIS RENTAL ALLOWANCE WHEN TEMPORARILY EMPLOYED ON SEA DUTY AND CONSEQUENTLY REQUIRED, FOR ECONOMIC REASONS, TO SURRENDER HIS QUARTERS ON SHORE, DESPITE HIS EXPECTATION OF SHORTLY RETURNING TO DUTY ON SHORE.

THIS REASONING IS CLEARLY CONSISTENT WITH THE STATEMENT APPEARING IN THE ABOVE CITED COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF FEBRUARY 2, 1937, TO THE EFFECT THAT "THERE HAVE BEEN CASES WHERE THE OFFICER HAS BEEN TEMPORARILY ASSIGNED TO DUTY AT SEA IN CIRCUMSTANCES WHERE HE WOULD BE REQUIRED TO MAINTAIN HIS QUARTERS ASHORE AND WHERE IT WAS HARDLY CONTEMPLATED BY THE DRAFTSMEN OF THE STATUTE THAT THE OFFICER SHOULD BE DEPRIVED OF HIS RENTAL ALLOWANCE ASHORE," WHICH QUOTED STATEMENT IS FOLLOWED BY THE CITATION OF ACTUAL CASES DIRECTLY IN POINT.

IT SEEMS APPARENT FROM THE FOREGOING THAT SINCE RENTAL ALLOWANCE MAY BE PAID UNDER CERTAIN CONDITIONS WHEN AN OFFICER IS TEMPORARILY ASSIGNED TO DUTY AT SEA, WHEREAS SEA DUTY PAY IS PAYABLE IN TIME OF WAR BY REASON OF EXTRA-HAZARDOUS CONDITIONS OF SERVICE, THE PAYMENT OF RENTAL ALLOWANCE AND SEA DUTY PAY TO AN OFFICER, WITHOUT DEPENDENTS, WHILE HE IS TEMPORARILY EMPLOYED ON SEA DUTY IS NEITHER INCONSISTENT NOR A DOUBLE PAYMENT FOR THE SAME PURPOSE. ACCORDINGLY, SUCH DUAL PAYMENTS FOR RENTAL ALLOWANCE AND SEA DUTY PAY WOULD APPEAR TO BE AUTHORIZED FOR SUCH PERIODS OF TEMPORARY SEA DUTY NOT EXCEEDING FOUR MONTHS AT ANY ONE TIME WHERE THE SHORE DUTY IS DETERMINED BY THE NAVY DEPARTMENT TO BE PARAMOUNT TO THE DUTY WHICH THE OFFICER IS REQUIRED TO RENDER AT SEA, AS HELD IN THE ABOVE CITED DECISION OF THE ACTING COMPTROLLER GENERAL OF FEBRUARY 2, 1937.

IN CONSIDERATION OF ALL THE FOREGOING, YOUR RECONSIDERATION IS REQUESTED OF THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF SEPTEMBER 30, 1942, B- 28788, TO THE EXTENT THAT IT HOLDS AN OFFICER WITHOUT DEPENDENTS, WHOSE PARAMOUNT DUTY IS DETERMINED TO BE SHORE DUTY, IS NOT ENTITLED TO RENTAL ALLOWANCE WHILE ASSIGNED TO AND PERFORMING TEMPORARY ADDITIONAL DUTY AT SEA WHICH HAS BEEN DEFINED BY THE SECRETARY OF THE NAVY AS SEA DUTY.

SECTION 2 OF THE ACT OF JUNE 16, 1942, PUBLIC LAW 607, 56 STAT. 359, 360, WAS QUOTED IN THE DECISION OF SEPTEMBER 30, 1942, 22 COMP. GEN. 289, TO WHICH REFERENCE IS MADE BY YOU. SECTION 6 OF THE SAME ACT, AT PAGES 361, 362, INSOFAR AS IS HERE MATERIAL, ALSO WAS QUOTED THEREIN, EXCEPT THE AUTHORIZATION FOR PROMULGATING REGULATIONS WHICH READS:

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.

YOU INVITE ATTENTION TO THE FACT THAT THE PARAGRAPH APPEARING IN THE PRIOR EXECUTIVE REGULATIONS, UNDER " PAYMENTS," AND READING,"AN OFFICER WHO HAS NO DEPENDENTS SHALL NOT BE PAID A RENTAL ALLOWANCE FOR ANY PERIOD DURING WHICH HE IS ON FIELD OR SEA DUTY," HAS BEEN OMITTED FROM THE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 9255. THIS PROVISION OF THE REGULATIONS CONTAINED IN THE PRIOR EXECUTIVE ORDER NO. 4063, DATED AUGUST 13, 1924, IS IN SUBSTANCE THE PROVISION OF THE STATUTE THAT "NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY," AND ITS OMISSION FROM THE REGULATIONS IN NO WAY AFFECTS THIS STATUTORY RESTRICTION.

THE EXECUTIVE REGULATIONS APPEAR TO REFLECT THE EFFECT OF THE JUDICIAL CONSTRUCTION OF SECTION 1571, REVISED STATUTES, DEFINING SEA SERVICE. WHETHER PARTICULAR DUTY IS SEA DUTY IS A QUESTION OF FACT ( UNITED STATES V. ENGARD, 196 U.S. 511; MCGOWAN V. UNITED STATES, 36 C.1CLS. 63); AND WHILE THIS OFFICE ORDINARILY WOULD NOT BE REQUIRED TO QUESTION A REASONABLY SUPPORTED DETERMINATION BY THE DEPARTMENT PURSUANT TO THE EXECUTIVE REGULATIONS THAT BY REASON OF AN OFFICER'S PARAMOUNT DUTIES ASHORE HE IS NOT ON SEA DUTY AND, THEREFORE, IS NOT PRECLUDED ON THAT ACCOUNT FROM RECEIVING RENTAL ALLOWANCE, SUCH A DETERMINATION WOULD SEEM SENSIBLY TO PRECLUDE A CONCURRENT DETERMINATION THAT HE IS ON SEA DUTY AND, THEREFORE, ENTITLED TO SEA DUTY PAY. WHILE TWO DIFFERENT SECTIONS OF THE STATUTE ARE INVOLVED AND THE PURPOSES OF THE ALLOWANCES MAY NOT BE MUTUALLY EXCLUSIVE, A LEGISLATIVE INTENT THAT BOTH MAY BE PAID AT THE SAME TIME IS NOT SUFFICIENTLY SHOWN TO JUSTIFY THE ANOMALY OF REGARDING AN OFFICER AS ON SEA DUTY UNDER SECTION 2 OF THE STATUTE BUT AS NOT ON SEA DUTY UNDER SECTION 6 OF THE SAME STATUTE; AND, IN THE ABSENCE OF A MORE CLEAR EXPRESSION OF THE WILL OF THE CONGRESS ON THE MATTER, THE CONCLUSION APPEARS REQUIRED THAT BOTH ALLOWANCES ARE NOT AUTHORIZED TO BE PAID CONCURRENTLY ON THE BASIS OF SUCH INCONSISTENT DETERMINATIONS. HOWEVER, IN VIEW OF THE EXECUTIVE REGULATIONS AND THE ESTABLISHED PRACTICE PURSUANT TO THE LIKE PROVISIONS OF PRIOR EXECUTIVE REGULATIONS IN SUCH RESPECT, THE PAYMENT OF RENTAL ALLOWANCE WOULD APPEAR TO BE WARRANTED IN SUCH CASES TO THE EXCLUSION OF THE SEA DUTY PAY. THAT IS, WHERE THERE IS A REASONABLE DETERMINATION PURSUANT TO THE EXECUTIVE REGULATIONS THAT AN OFFICER'S SHORE DUTY IS PARAMOUNT AND, THEREFORE, THAT HE IS NOT ON SEA DUTY, HE MAY CONTINUE IN RECEIPT OF RENTAL ALLOWANCE, AS HERETOFORE, BUT MAY NOT FOR THE SAME PERIOD BE CREDITED WITH EXTRA PAY AS ON SEA DUTY.

TO THAT EXTENT, THE CONCLUSIONS STATED IN THE LAST PARAGRAPH OF THE DECISION OF SEPTEMBER 30, 1942, ARE MODIFIED.