B-111704, DECEMBER 17, 1952, 32 COMP. GEN. 287

B-111704, DECEMBER 17, 1952, 32 COMP. GEN. 287

PAY - SUBMARINE DUTY - ENTITLEMENT DURING PERIODS OF ABSENCE FROM SUBMARINES UNDER SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND EXECUTIVE ORDER NO. 10152 ISSUED PURSUANT THERETO, MEMBERS OF THE UNIFORMED SERVICES WHO ARE ATTACHED TO SUBMARINES ARE NOT ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY FOR ANY PART OF ANY PERIOD OF ABSENCE OF SIXTEEN DAYS OR MORE FROM THE SUBMARINE, WHETHER ON TEMPORARY ADDITIONAL DUTY, LEAVE, OR OTHERWISE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, DECEMBER 17, 1952:

THERE IS BEFORE THIS OFFICE THE MATTER OF PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES OF INCENTIVE PAY FOR HAZARDOUS DUTY ON BOARD SUBMARINES DURING PERIODS OF ABSENCE FROM THE SUBMARINES TO WHICH THE MEMBERS ARE ATTACHED.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810, PROVIDES THAT:

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; * * *

EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, WAS ISSUED PURSUANT TO AUTHORITY OF THE ABOVE SUBSECTION. SECTIONS 6 AND 12 OF THE SAID EXECUTIVE ORDER ARE 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. 12. THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.

SUPPLEMENTARY REGULATIONS RELATIVE TO INCENTIVE PAY FOR SUBMARINE DUTY, ISSUED UNDER THE AUTHORITY OF THE ABOVE SECTION 12, ARE CONTAINED IN PARAGRAPH 54100, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. PRIOR TO THE ISSUANCE OF INSTRUCTION MEMORANDUM 22-6, JULY 3, 1952, SUBPARAGRAPH 54100- 2, OF THE SAID MANUAL READS AS FOLLOWS:

ABSENCE FROM SUBMARINE. MEMBERS ARE ENTITLED TO OTHERWISE PROPER CREDIT OF SUBMARINE PAY FOR PERIODS OF AUTHORIZED LEAVE AND TEMPORARY ADDITIONAL DUTY IF NOT DETACHED FROM THE SUBMARINE.

THE SAID INSTRUCTION MEMORANDUM 22-6, REVISED THE ABOVE SUBPARAGRAPH TO READ:

ABSENCE FROM SUBMARINE

A. LEAVE. MEMBERS ARE ENTITLED TO OTHERWISE PROPER CREDIT OF SUBMARINE PAY FOR PERIODS OF AUTHORIZED LEAVE IF NOT DETACHED FROM THE SUBMARINE.

B. TEMPORARY ADDITIONAL DUTY. MEMBERS ARE ENTITLED TO OTHERWISE PROPER CREDIT OF SUBMARINE PAY FOR PERIODS OF TEMPORARY ADDITIONAL DUTY IF NOT DETACHED FROM THE SUBMARINE PROVIDED THE TEMPORARY ADDITIONAL DUTY IS LESS THAN 20 WEEKS IN DURATION EXCLUSIVE OF LEAVE AND TRAVEL TIME AUTHORIZED BY THE ORDERS. NO SUBMARINE PAY WILL BE CREDITED FOR ANY PART OF THE PERIOD OF ABSENCE UNDER THE ORDERS IF THE TEMPORARY ADDITIONAL DUTY IS OF 20 WEEKS OR MORE DURATION. IN THE CASE OF MEMBERS ORDERED TO SCHOOLS IN A TEMPORARY ADDITIONAL DUTY STATUS, THE ORDERS WILL NORMALLY SPECIFY THE LENGTH OF THE COURSE OF INSTRUCTION AND NO SUBMARINE PAY WILL BE CREDITED FOR ANY PART OF THE PERIOD OF ABSENCE UNDER THE ORDERS IF THE DURATION OF THE COURSE IS 20 WEEKS OR MORE. IF THE DURATION OF THE COURSE IS NOT SPECIFIED IN THE ORDERS, NO SUBMARINE PAY WILL BE CREDITED DURING THE PERIOD OF ABSENCE UNLESS AND UNTIL IT IS DETERMINED THAT THE COURSE IS OF LESS THAN 20 WEEK DURATION.

IT IS UNDERSTOOD THAT PRIOR TO THE ABOVE REVISION, CREDITS OF SUBMARINE PAY WERE CONTINUED FOR PERIODS AS LONG AS 14 MONTHS DURING WHICH MEMBERS WERE ASSIGNED TO TEMPORARY ADDITIONAL DUTY AT ACTIVITIES OTHER THAN ON BOARD SUBMARINES.

THE LAW REQUIRES DUTY ON BOARD A SUBMARINE FOR ENTITLEMENT TO SUBMARINE PAY. EXECUTIVE ORDER NO. 10152, SUPRA, ISSUED PURSUANT TO THAT LAW, STATES THAT MEMBERS WHO ARE ATTACHED TO A SUBMARINE SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY. THE EXECUTIVE ORDER MUST BE READ AS COMPLEMENTING THE LAW, RATHER THAN SETTING ASIDE ANY REQUIREMENT THEREOF, AND THUS MUST BE CONSTRUED AS MEANING THAT SUBMARINE PAY ACCRUES TO A MEMBER ATTACHED TO A SUBMARINE FOR DUTY ON BOARD A SUBMARINE. HENCE, THE LAW AND THE EXECUTIVE ORDER CONTAIN NO BASIS FOR ENTITLEMENT TO SUBMARINE PAY EXCEPT BY REASON OF DUTY ON BOARD A SUBMARINE. DEPARTMENTAL REGULATIONS SUPPLEMENTING THE EXECUTIVE ORDER ALSO MUST BE CONSISTENT WITH THE LAW AND THE EXECUTIVE ORDER AND, OF COURSE, ANY SUCH SUPPLEMENTARY REGULATION PURPORTING TO GRANT SUBMARINE PAY UNDER CONDITIONS NOT CONTEMPLATED BY THE STATUTE IS INEFFECTIVE.

IT HAS BEEN RECOGNIZED THAT THE PHRASE "DUTY ON BOARD A SUBMARINE" IS NOT SUCH A RESTRICTIVE ONE NECESSARILY TO CONTEMPLATE PHYSICAL PRESENCE ABOARD A SUBMARINE 24 HOURS A DAY OR 30 DAYS A MONTH AND IT SEEMS REASONABLY APPARENT THAT IT IS NOT THE INTENT OF THE LAW THAT EVERY PERIOD OF ABSENCE FROM A SUBMARINE, HOWEVER BRIEF, SHALL BE EXCLUDED FROM THE TIME CREDITABLE FOR SUBMARINE PAY PURPOSES. THE STATUTE REASONABLY MAY NOT BE VIEWED, HOWEVER, AS CONTEMPLATING MORE THAN BRIEF ABSENCES WITHOUT BREAKING THE CONTINUITY OF DUTY "ON BOARD A SUBMARINE.' IN THAT CONNECTION IT IS NOTED THAT SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, PROVIDES THAT "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE," ENLISTED PERSONS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO ADDITIONAL PAY (AT RATES PRESCRIBED THEREIN) WHILE ON SEA DUTY AND THAT SECTION 2 OF EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, ISSUED PURSUANT TO THE SAID SECTION 206, PROVIDES IN PERTINENT PART THAT:

FOR ADDITIONAL-PAY PURPOSES, AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 3 HEREOF, SEA DUTY SHALL MEAN DUTY PERFORMED BY ENLISTED MEMBERS:

(A) WHILE PERMANENTLY ASSIGNED TO A VESSEL, OTHER THAN A VESSEL RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES OR A NON- SELF-PROPELLED VESSEL, PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY, INCLUDING PERIODS NOT IN EXCESS OF FIFTEEN CONSECUTIVE DAYS EACH WHILE ON TEMPORARY ADDITIONAL DUTY ASHORE.

IT REASONABLY APPEARS THAT THE PRESIDENT'S FORMULA, SET FORTH IN THE ABOVE EXECUTIVE ORDER, FOR PERIODS OF ABSENCE ON TEMPORARY ADDITIONAL DUTY WHICH DO NOT AFFECT THE RIGHT TO SEA DUTY PAY, PRESENTS A FAIR BASIS FOR COMPARISON IN DETERMINING A REASONABLE LIMIT ON ABSENCES FROM A SUBMARINE DURING WHICH THE RIGHT TO SUBMARINE PAY MAY CONTINUE. THAT IS PARTICULARLY TRUE SINCE BOTH SUBMARINE PAY AND SEA DUTY PAY ARE PROVIDED BY THE SAME ACT, AND THE PRESIDENT IS GRANTED AUTHORITY IN EACH INSTANCE TO PRESCRIBE APPROPRIATE REGULATIONS. MOREOVER, SUBMARINE DUTY IS FACTUALLY CLOSELY RELATED TO SEA DUTY; NORMALLY SUBMARINE DUTY BY AN ENLISTED MAN WOULD CONNOTE SEA DUTY ALSO. IT IS CONCLUDED, THEREFORE, THAT SUBPARAGRAPH 54100-2 OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL IS INCONSISTENT WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 10152 RELATING TO SUBMARINE PAY AND WITH THE PROVISIONS OF THE STATUTE AUTHORIZING SUCH PAY. ADOPTING THE 15 DAY LIMIT FIXED IN THE SAID EXECUTIVE ORDER RELATING TO SEA DUTY PAY AS LIKEWISE A REASONABLE LIMIT ON SUBMARINE PAY UNDER THE STATUTE, THIS OFFICE WOULD NOT BE JUSTIFIED IN FURTHER RECOGNIZING A RIGHT TO SUBMARINE PAY FOR ANY PART OF ABSENCES OF A LONGER DURATION.

ACCORDINGLY, THIS OFFICE WILL TAKE EXCEPTION TO PAYMENTS HEREAFTER MADE REPRESENTING INCENTIVE PAY FOR THE PERFORMANCE OF SUBMARINE DUTY FOR PERIODS OF ABSENCE, WHETHER ON TEMPORARY ADDITIONAL DUTY, LEAVE, OR OTHERWISE, OF 16 DAYS OR MORE AWAY FROM A SUBMARINE, REGARDLESS OF THE FACT THAT THE MEMBER MAY CONTINUE TO BE ATTACHED TO THE SUBMARINE.

IN VIEW OF THE SPECIAL INTEREST IN THE SUBJECT HERETOFORE EXPRESSED BY THE PREPAREDNESS SUBCOMMITTEE, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, A COPY OF THIS LETTER IS BEING SENT TO THE CHAIRMAN OF THAT SUBCOMMITTEE.