B-145441, MAY 10, 1961, 40 COMP. GEN. 618

B-145441, MAY 10, 1961, 40 COMP. GEN. 618

MILITARY PERSONNEL - SEA DUTY PAY - VESSEL OVERHAUL PERIODS - TIME LIMITATION FOR PURPOSES OF CREDITING NAVY ENLISTED MEMBERS WITH SPECIAL SEA DUTY PAY DURING PERIODS WHEN MESSING OR BERTHING FACILITIES, OR BOTH ARE TEMPORARILY OUT OF OPERATION FOR VESSEL ALTERATION AND REPAIR UNDER SECTION 2 (A) (1) (II) OF EXECUTIVE ORDER NO. 10821, VESSEL REPAIR AND ALTERATION PERIODS NOT IN EXCESS OF 90 DAYS MAY BE CONSIDERED TEMPORARY; HOWEVER, WHEN ALTERATIONS AND REPAIRS WILL CLOSE THE MESSING OR BERTHING FACILITIES ABOARD A VESSEL, SO THAT ENLISTED MEMBERS WILL HAVE TO BE MESSED OR BERTHED ASHORE FOR A CONTINUOUS PERIOD IN EXCESS OF 90 DAYS, SUCH PERIOD MAY NOT BE CONSIDERED TEMPORARY AND NO SPECIAL SEA DUTY PAY FOR ANY PART OF THE TIME MAY BE ALLOWED. NAVY ENLISTED MEMBERS WHO WERE BEING BERTHED AND SUBSISTED ASHORE WHILE THEIR VESSEL WAS UNDERGOING A SEVEN-MONTH OVERHAUL (1MARK II FRAM) PROGRAM AND WHO WERE RECEIVING SEA DUTY PAY, UNDER EXECUTIVE ORDER NO. 10821 FOR VESSEL ALTERATION PERIODS DURING WHICH MESSING OR BERTHING FACILITIES ARE TEMPORARILY OUT OF OPERATION, WHEN AN ADMINISTRATIVE DETERMINATION WAS MADE ON JULY 28, 1960, THAT SEA DUTY PAY IN SUCH EXTENDED OVERHAUL CASES SHOULD TERMINATE WHEN THE GENERAL MESS ON THE VESSEL CEASES OPERATION, MAY HAVE THEIR SEA DUTY CREDITS ADJUSTED FROM JULY 28, 1960, WITHOUT ANY RETROACTIVE CHECK AGE, IN THE ABSENCE OF ANY DEFINITION OF THE TERM "TEMPORARILY" IN THE EXECUTIVE ORDER OR ANY SPECIFIC LIMITATION ON TIME FOR SEA DUTY PAY IN SUCH CASES.

TO THE SECRETARY OF THE NAVY, MAY 10, 1961:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1961, REQUESTING DECISION CONCERNING THE PROPRIETY OF PAYMENT OF SEA DUTY PAY TO CERTAIN ENLISTED MEMBERS OF THE NAVAL SERVICE IN THE CIRCUMSTANCES SET FORTH BELOW. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. SS-N-562 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT A PROBLEM CONCERNING ENTITLEMENT OF ENLISTED MEMBERS TO A SPECIAL PAY FOR SEA DUTY HAS ARISEN IN CONNECTION WITH THE NAVY'S FLEET REHABILITATION AND MODERNIZATION PROGRAM ( FRAM). DURING THE FRAM PROGRAM SHIPS ARE SCHEDULED FOR EXTENDED PERIODS OF SHIPYARD OVERHAUL. ACCOMPLISHMENT OF THE PROGRAM REQUIRES THE SHIPS INVOLVED TO SPEND SEVEN MONTHS IN THE SHIPYARDS FOR THE MARK II FRAM CONVERSION (EXTENDED OVERHAUL) AND TWELVE MONTHS FOR THE MARK II FRAM CONVERSION (MAJOR CONVERSION). MARK I FRAM SHIPS ARE PLACED "1IN COMMISSION, IN RESERVE" UPON COMMENCEMENT OF CONVERSION PERIODS AND RESUME "1ACTIVE, IN COMMISSION" STATUS ONE MONTH PRIOR TO THE SCHEDULED COMPLETION DATES. MARK II FRAM SHIPS REMAIN "1ACTIVE, IN COMMISSION" DURING THE ASSIGNED OVERHAUL PERIODS.

THE PARTICULAR SEA DUTY PAY PROBLEM TO WHICH YOU REFER INVOLVES A GROUP OF NAVAL ENLISTED MEMBERS WHO WERE ATTACHED TO SHIPS THAT WERE PLACED IN THE MARK II FRAM PROGRAM. DURING THE MARK II FRAM OVERHAUL PERIODS THE MESSES ABOARD THESE SHIPS CEASED OPERATIONS AND THE ENLISTED MEMBERS CONCERNED WERE SUBSISTED IN THE SHIPYARD'S MESSING FACILITIES ASHORE. THEY WERE ALSO BERTHED ASHORE DUE TO WORK IN PROGRESS IN THE BERTHING AREAS ON THE SHIPS. IT APPEARS THAT THE ENLISTED MEMBERS INVOLVED WERE PAID SPECIAL PAY FOR "SEA DUTY" AS PRESCRIBED IN SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, 37 U.S.C. 237, ON THE BASIS THAT SUCH PAYMENT WAS AUTHORIZED BY THE PROVISIONS OF SECTION 2, EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10821, MAY 20, 1959. HOWEVER, UPON SUBMISSION OF THE QUESTION IN APRIL 1960 TO THE COMPTROLLER OF THE NAVY, THE COMMANDER DESTROYER FORCE, U.S. ATLANTIC FLEET, WAS ADVISED IN LETTER DATED JUNE 13, 1960, AS FOLLOWS:

BASICALLY, THE ENTITLEMENT TO SPECIAL PAY FOR SEA DUTY INVOLVES DUTY ON BOARD A SELF-PROPELLED VESSEL IN AN ACTIVE STATUS, IN COMMISSION OR IN SERVICE, AND EQUIPPED WITH BERTHING AND MESSING FACILITIES. IN THIS CONNECTION, THE COMPTROLLER GENERAL OF THE UNITED STATES HAS HELD IN (36 COMP. GEN. 372) THAT THE BASIC STATUTE DOES NOT INTEND THAT PAY FOR SEA DUTY SHALL BE PAID TO INDIVIDUALS IN A DUTY STATUS WHICH DOES NOT REQUIRE SERVICE EITHER AT SEA OR UNDER CONDITIONS PECULIAR TO SERVICE AT SEA, EVEN THOUGH ATTACHED TO A VESSEL. ( INFORMATION FURNISHED) INDICATES THAT BERTHING AND MESSING FACILITIES OF MARK II SHIPS WILL BE OUT OF OPERATION FOR AN EXTENDED PERIOD OF TIME AND THAT MEMBERS WILL BE BERTHED AND MESSED ASHORE. IN VIEW OF (36 COMP. GEN. 372) SUCH CONDITIONS COULD NOT BE CONSIDERED TEMPORARY WITHIN THE MEANING OF (1EXECUTIVE ORDER 10168 AS AMENDED BY EXECUTIVE ORDER 10821).

THEREFORE, ENTITLEMENT TO SPECIAL PAY FOR SEA DUTY OF MEMBERS ASSIGNED TO SHIPS UNDERGOING SHIPYARD OVERHAUL IN CONNECTION WITH THE MARK II FLEET REHABILITATION AND MODERNIZATION PROGRAM SHOULD BE TERMINATED EFFECTIVE WITH THE DATE THE GENERAL MESS CEASES OPERATION. ENTITLEMENT WOULD COMMENCE AGAIN UPON REACTIVATION OF THE GENERAL MESS. THE ENTITLEMENT TO SPECIAL PAY FOR SEA DUTY FOR MEMBERS ABOARD MARK I FLEET REHABILITATION AND MODERNIZATION SHIPS WOULD AUTOMATICALLY TERMINATE WHEN THE SHIP IS PLACED IN A " IN COMMISSION, IN RESERVE," STATUS AS THE SHIP WOULD NO LONGER BE IN AN ACTIVE STATUS.

THE COMMANDER DESTROYER FORCE, U.S. ATLANTIC FLEET PROMULGATED THE DETERMINATION OF THE COMPTROLLER OF THE NAVY ON JULY 28, 1960, AND IN VIEW OF THE ABSENCE OF ANY REGULATION DEFINING THE TERM "TEMPORARILY" FOR PURPOSES OF CREDITING SEA DUTY PAY DURING PERIODS WHEN MESSING OR BERTHING FACILITIES, OR BOTH, ARE OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS (SEE THE APPLICABLE REGULATIONS QUOTED BELOW) YOU PRESENT THE FOLLOWING QUESTION FOR DECISION:

MAY CREDITS OF SEA DUTY PAY IN THE CASE OF MEMBERS ATTACHED TO MARK II VESSELS DURING THE FLEET REHABILITATION AND MODERNIZATION ( FRAM) PROGRAM BE ADJUSTED EFFECTIVE 28 JULY 1960 (THE DATE ON WHICH THE COMMANDER DESTROYED FORCE, U.S. ATLANTIC FLEET PROMULGATED THE AFOREMENTIONED DETERMINATION OF THE COMPTROLLER OF THE NAVY) WITHOUT ANY RETROACTIVE CHECK AGE OF SEA DUTY PAY?

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SPECIAL PAY FOR SEA DUTY (IN THE CASE OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY) IS AUTHORIZED IN SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949. THE PRESIDENTIAL REGULATIONS RELATING TO ADDITIONAL PAY FOR SEA DUTY ARE SET FORTH IN EXECUTIVE ORDER NO. 10168 OF OCTOBER 11, 1950. SECTION 2 OF THAT EXECUTIVE ORDER WAS SUPERSEDED IN ITS ENTIRETY BY THE PROVISIONS OF NEW SECTION 2 PROMULGATED IN EXECUTIVE ORDER NO. 10821, MAY 20, 1959. NEW SECTION 2 PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 2. (A) FOR ADDITIONAL-PAY PURPOSES, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 3 HEREOF, THE TERM "SEA DUTY" SHALL MEAN DUTY PERFORMED BY ENLISTED MEMBERS:

(1) WHILE PERMANENTLY ASSIGNED TO A VESSEL, SHIP-BASED STAFF, OR SHIP- BASED AVIATION UNIT PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, INCLUDING---

(II) PERIODS DURING WHICH MESSING OR BERTHING FACILITIES, OR BOTH, ARE TEMPORARILY OUT OF OPERATION TO PERMIT ALTERNATIONS OR REPAIRS.

(B) FOR THE PURPOSES OF THIS SECTION, AND EXCEPT AS PROVIDED IN SUBSECTION (A) (3) HEREOF, THE WORD "VESSEL" OR "SHIP" SHALL MEAN A SELF- PROPELLED VESSEL IN AN ACTIVE STATUS, IN COMMISSION OR IN SERVICE, AND EQUIPPED WITH BERTHING AND MESSING FACILITIES.

NORMALLY, NO ENLISTED MEMBER MAY BE CONSIDERED TO BE ON SEA DUTY "1WHILE ON DUTY IN A VESSEL WHICH IS IN AN INACTIVE STATUS.' SEE SECTION 3 (B), EXECUTIVE ORDER NO. 10168, AS AMENDED BY EXECUTIVE ORDER NO. 10821. EXCEPTION TO THIS IS PROVIDED IN SECTION 2 (A) (3) OF THE EXECUTIVE ORDER WHEN SUCH VESSEL IS OPERATING "AT SEA" FOR A PERIOD OF EIGHT DAYS OR MORE IN EACH CASE.

SECTION 7 OF EXECUTIVE ORDER NO. 10168, AS AMENDED BY EXECUTIVE ORDER NO. 10821, PROVIDES THAT:

NO ENLISTED MEMBER SHALL BE ENTITLED UNDER THIS ORDER TO RECEIVE BOTH SEA -DUTY PAY AND FOREIGN-DUTY PAY FOR THE SAME PERIOD OF TIME; NOR SEA-DUTY PAY AND CREDIT FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR THE SAME PERIOD OF TIME EXCEPT PERIODS DURING WHICH MESSING FACILITIES ARE TEMPORARILY OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS * * *

UNDER THE PROVISIONS OF LAW AND REGULATIONS ABOVE QUOTED, THE TERM "SEA DUTY" INCLUDES DUTY PERFORMED BY ENLISTED MEMBERS WHILE PERMANENTLY ASSIGNED TO AND ON DUTY IN A VESSEL (WHICH VESSEL IS NOT IN AN "INACTIVE" STATUS) PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, INCLUDING PERIODS DURING WHICH MESSING OR BERTHING FACILITIES, OR BOTH, ARE "TEMPORARILY" OUT OF OPERATION TO PERMIT ALTERATIONS OR REPAIRS. SECTION 2 (A) (1) (II) OF THE EXECUTIVE ORDER DOES NOT DEFINE THE TERM ,TEMPORARILY" NOR CONTAIN ANY SPECIFIC LIMITATION AS TO PERIODS AUTHORIZED TO BE COVERED BY ITS PROVISIONS. IN THE ABSENCE OF AN EXPRESS DEFINITION OR A SPECIFIC LIMITATION, THE TERM ,TEMPORARILY," ALTHOUGH INDEFINITE, MUST BE ACCORDED A REASONABLE AREA OF APPLICATION EXCLUDING THEREFROM THOSE PERIODS WHICH IN THE CIRCUMSTANCES OF THE PARTICULAR CASE CANNOT PROPERLY BE VIEWED AS TEMPORARY AND YET HAVING DUE REGARD TO THE FACT THAT SUCH TERM IS DIRECTLY ASSOCIATED IN EXECUTIVE ORDER NO. 10821 WITH PERIODS THAT MESSING OR BERTHING FACILITIES, OR BOTH, ABOARD A VESSEL ARE OUT OF OPERATION "TO PERMIT ALTERATIONS OR REPAIRS.' ALTERATIONS OR REPAIRS TO VESSELS WHICH PLACE OUT OF OPERATION THE MESSING OR BERTHING FACILITIES, OR BOTH, MAY BE MINOR AND COVER RELATIVELY BRIEF DURATIONS, OR AS IN THE CASE OF THE FRAM PROGRAM MAY CONSTITUTE EXTENSIVE OVERHAULING COVERING AN EXTENDED AND CONTINUOUS PERIOD OF TIME. THIS OFFICE IS OF THE VIEW THAT ALTERATIONS OR REPAIRS TO A VESSEL WHICH PLACE THE MESSING OR BERTHING FACILITIES, OR BOTH, ABOARD THAT VESSEL OUT OF OPERATION FOR PERIODS NOT IN EXCESS OF 90 DAYS PROPERLY MAY BE CONSIDERED AS TEMPORARY WITHIN THE PURVIEW OF THE EXECUTIVE ORDER. HOWEVER, WHEN IT IS CONTEMPLATED THAT ALTERATIONS OR REPAIRS WILL CLOSE THE MESSING OR BERTHING FACILITIES ABOARD A VESSEL SO THAT THE ENLISTED MEMBERS ATTACHED THERETO WILL BE MESSED OR BERTHED ASHORE FOR A CONTINUOUS PERIOD IN EXCESS OF 90 DAYS, IT IS OUR VIEW THAT SUCH ENLISTED MEMBERS ARE NOT WITHIN THE PURVIEW OF THE PROVISIONS OF THE EXECUTIVE ORDER FOR THE PURPOSE OF RECEIVING SPECIAL PAY FOR SEA DUTY FOR ANY PART OF SUCH TIME. THAT THE DEPARTMENT OF THE NAVY HOLDS SOMEWHAT THE SAME VIEW IN THE MATTER IS REFLECTED IN THE QUESTION PRESENTED FOR DECISION, WHICH HAS REFERENCE SOLELY AS TO WHETHER THE ADJUSTMENT OF CREDITS FOR SEA DUTY PAY IN THIS PARTICULAR CASE IS PROPER EFFECTIVE JULY 28, 60,"WITHOUT ANY RETROACTIVE CHECK AGE OF SEA DUTY PAY.' IT SHOULD BE NOTED IN CONNECTION WITH THIS MATTER, GENERALLY, THAT SECTION 8 OF EXECUTIVE ORDER NO. 10168 AUTHORIZES THE SECRETARIES CONCERNED "TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS" DEEMED NECESSARY OR DESIRABLE TO CARRY OUT THE REGULATIONS CONTAINED IN THE EXECUTIVE ORDER. COMPARE 38 COMP. GEN. 853.

UNDER THE CIRCUMSTANCES PRESENTED, CREDITS OF SEA DUTY PAY IN THE CASE OF THOSE ENLISTED MEMBERS ABOVE REFERRED TO WHO WERE ATTACHED TO VESSELS OVERHAULED IN THE MARK II FRAM PROGRAM MAY BE ADJUSTED EFFECTIVE JULY 28, 1960, WITHOUT ANY RETROACTIVE CHECK AGE OF SEA DUTY PAY.