B-100180, APRIL 27, 1951, 30 COMP. GEN. 422

B-100180, APRIL 27, 1951, 30 COMP. GEN. 422

PAY - SUBMARINE DUTY - ENTITLEMENT DURING PERIODS OF INCAPACITY A MEMBER OF THE UNIFORMED SERVICES WHO BECAME INCAPACITATED WHILE SERVING ON A SUBMARINE NECESSITATING HIS DETACHMENT THEREFROM FOR MEDICAL TREATMENT NO LONGER MEETS THE SUBMARINE ASSIGNMENT OR ATTACHMENT REQUIREMENT UNDER EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950, WHICH IS THE PRIMARY REQUISITE TO ENTITLEMENT TO SUBMARINE PAY, AND THEREFORE SUCH MEMBER IS NOT ENTITLED TO BE CONTINUED IN A SUBMARINE DUTY STATUS FOR PAY PURPOSES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, APRIL 27, 1951:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1950, WHEREIN YOU REQUEST DECISION AS FOLLOWS:

WHETHER A MEMBER OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE INCENTIVE PAY (SUBMARINE) UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 ( PUBLIC LAW 351, 81ST CONGRESS) AND SECTION 6 OF EXECUTIVE ORDER NO. 10152 (15 FED. REG. 5491), DATED AUGUST 17, 1950, BY VIRTUE OF HIS ATTACHMENT BY COMPETENT ORDERS TO A SUBMARINE WHICH IS IN AN ACTIVE STATUS, WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, AS DETERMINED BY APPROPRIATE MEDICAL AUTHORITY, AND AS A DIRECT RESULT OF SUCH INJURY OR INCAPACITY IS DETACHED FROM THE SUBMARINE AND TRANSFERRED TO A HOSPITAL OR OTHER ACTIVITY FOR MEDICAL TREATMENT, CONTINUES TO BE ENTITLED UNDER THE PROVISIONS OF SECTION 10 OF EXECUTIVE ORDER NO. 10152, SUPRA, TO RECEIVE INCENTIVE PAY (SUBMARINE) DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY APPROPRIATE MEDICAL AUTHORITY.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 809, 810, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES:

(2) DUTY ON BOARD A SUBMARINE, INCLUDING SUBMARINES UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE;

SECTIONS 6 AND 10 OF THE EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950, PROVIDED AS FOLLOWS:

SEC. 6. MEMBERS WHO, PURSUANT TO COMPETENT ORDERS, ARE ATTACHED TO A SUBMARINE WHICH IS IN AN ACTIVE STATUS, INCLUDING A SUBMARINE UNDER CONSTRUCTION FROM THE TIME BUILDERS' TRIALS COMMENCE, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY. THE TERM ,BUILDERS' TRIALS" SHALL BE CONSTRUED TO MEAN TRIALS CONDUCTED UNDERWAY OR IN FREE ROUTE.

SEC. 10. ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.

BOTH THE LAW AND REGULATIONS CONTEMPLATE THAT ASSIGNMENT OR ATTACHMENT TO A SUBMARINE IS THE PRIMARY REQUISITE TO ENTITLEMENT TO SUBMARINE PAY AND IT SEEMS OBVIOUS THAT UPON TERMINATION OF SUCH ASSIGNMENT OR ATTACHMENT THE RIGHT TO SUCH PAY IS LIKEWISE TERMINATED. IF A MAN IS DETACHED FROM A SUBMARINE HE NO LONGER MEETS THE ASSIGNMENT OR ATTACHMENT REQUIREMENT AND AFTER SUCH DETACHMENT SECTION 10 OF THE EXECUTIVE ORDER WOULD NOT BE APPLICABLE TO HIM. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE. CF. 23 COMP. GEN. 765.

IN YOUR LETTER YOU STATE THAT THE PRINCIPLE INVOLVED IN THE FOREGOING QUESTION WOULD APPEAR TO BE EQUALLY APPLICABLE TO SIMILAR CASES INVOLVING MEMBERS OF THE UNIFORMED SERVICES WHOSE INCAPACITIES ARISE AS THE RESULT OF THE PERFORMANCE OF THE HAZARDOUS DUTIES SPECIFIED IN SECTION 9 OF THE EXECUTIVE ORDER--- DUTY INVOLVING CONTACT WITH PERSONS AFFLICTED WITH LEPROSY; DUTY INVOLVING DEMOLITION OF EXPLOSIVES; DUTY AT A SUBMARINE TRAINING TANK, WHEN SUCH DUTY INVOLVES PARTICIPATION IN TRAINING; AND DUTY AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT, WHEN SUCH DUTY INVOLVES PARTICIPATION IN TRAINING--- AND YOU ARE ADVISED THAT THIS OFFICE CONCURS IN THAT VIEW.