B-118140, JUNE 13, 1955, 34 COMP. GEN. 669

B-118140, JUNE 13, 1955, 34 COMP. GEN. 669

PAY - ADDITIONAL - SEA AND FOREIGN DUTY - SERVICE ON VESSELS ON INLAND WATERS OF THE UNITED STATES A DETERMINATION BY THE HEAD OF A DEPARTMENT THAT DUTY ABOARD THE U.S.S. SEQUOIA OPERATING ON THE POTOMAC RIVER CONSTITUTED SEA DUTY FOR ADDITIONAL PAY HAD NO EFFECT AFTER OCTOBER 1, 1949, THE DATE OF ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949 WHICH AUTHORIZED SEA DUTY PAY IN ACCORDANCE WITH REGULATIONS ISSUED BY THE PRESIDENT AND, THEREFORE, ENLISTED PERSONNEL ASSIGNED TO THE U.S.S. SEQUOIA AFTER NOVEMBER 1, 1950, THE EFFECTIVE DATE OF EXECUTIVE ORDER NO. 10168, WERE NOT ON SEA DUTY FOR ADDITIONAL PAY PURPOSES WITHIN THE DEFINITION IN SECTIONS 2 (A) AND (D) OF THE EXECUTIVE ORDER, WHICH EXCEPT DUTY ON VESSELS RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, JUNE 13, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1955, CONCERNING EXCEPTIONS TAKEN BY OUR NAVY AUDIT BRANCH IN CLEVELAND, OHIO, TO CREDITS OF SEA DUTY PAY TO ENLISTED MEMBERS SERVING ON BOARD THE U.S.S. SEQUOIA. THE EXCEPTIONS WERE TAKEN FOR THE REASON THAT IT HAD NOT BEEN ESTABLISHED THAT THE ENLISTED MEMBERS ACTUALLY WERE ON SEA DUTY WITHIN THE MEANING OF THE DEFINITION CONTAINED IN SECTION 2 (A) AND (D) OF EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950. YOU REQUEST THAT CONSIDERATION BE GIVEN TO "ALLOWING THE PAYMENT OF SPECIAL PAY FOR SEA DUTY IN THE CASE OF THOSE PERSONNEL WHO SERVED ON THE U.S.S. SEQUOIA (AG-23) FROM 1 NOVEMBER 1950 THROUGH 28 FEBRUARY 1954 TO STAND.'

YOUR LETTER STATES THAT PAYMENT OF SEA DUTY PAY TO ENLISTED MEMBERS OF THE U.S.S. SEQUOIA WAS MADE FROM JULY 1, 1945, TO FEBRUARY 28, 1954, UNDER A SPECIAL DETERMINATION MADE BY THE SECRETARY OF NAVY ON NOVEMBER 30, 1945, THAT SERVICE ON BOARD THAT VESSEL WOULD CONSTITUTE SEA DUTY FOR PAY PURPOSES, EFFECTIVE JULY 1, 1945. AS OF THAT DATE, IT IS STATED THAT THE U.S.S. SEQUOIA WAS AN ACTIVE COMMISSIONED VESSEL UNDER THE ADMINISTRATIVE CONTROL OF THE COMMANDANT, POTOMAC RIVER NAVAL COMMAND, AND OPERATIONALLY ASSIGNED FOR SUCH SERVICES AS THE SECRETARY OF THE NAVY MIGHT DIRECT. ALSO, IT IS RELATED THAT THERE WAS NO CHANGE IN THE VESSEL'S STATUS OR ASSIGNMENT UNTIL MARCH 1, 1954, AND SINCE THE SPECIAL DETERMINATION OF THE SECRETARY OF THE NAVY HAD NOT BEEN CANCELED, THE ENLISTED MEMBERS OF THE CREW OF THE U.S.S. SEQUOIA CONTINUED TO DRAW SEA DUTY PAY. IT IS FURTHER STATED THAT WHEN WE QUESTIONED SUCH PAYMENTS THE CHIEF OF NAVAL OPERATIONS ON MARCH 30, 1954, AT THE REQUEST OF THE CHIEF OF NAVAL PERSONNEL, ADVISED THAT UPON AN EXAMINATION OF THE PROSPECTIVE EMPLOYMENT OF THE U.S.S. SEQUOIA IT WAS CONCLUDED THAT THE SHIP WAS RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES EFFECTIVE FROM MARCH 1, 1954. AS A RESULT OF THAT ACTION, SEA DUTY PAY WAS DISCONTINUED AS OF MARCH 1, 1954. IT IS POINTED OUT THAT ENLISTED PERSONNEL ARE BEING REQUIRED TO MAKE REPAYMENT OF SUCH PAY AND THAT SUCH ACTION CREATES A FINANCIAL HARDSHIP ON THE INDIVIDUALS CONCERNED. ALSO, IT IS SUGGESTED THAT SUCH COLLECTION ACTION WILL HAVE AN ADVERSE EFFECT ON NAVY PUBLIC RELATIONS AND THE RECRUITING PROGRAMS.

ADDITIONAL PAY FOR SEA DUTY IS AUTHORIZED BY SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, WHICH PROVIDES:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ENLISTED PERSONS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, WHILE ON SEA DUTY OR WHILE ON DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, BE ENTITLED TO RECEIVE PAY AT THE FOLLOWING MONTHLY RATES: * * *

EXECUTIVE ORDER NO. 10168, OCTOBER 11, 1950, WAS ISSUED PURSUANT TO AUTHORITY OF THE ABOVE SECTION AND PROVIDES, IN PERTINENT PART---

SECTION 1. ENLISTED MEMBERS ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE, ADDITIONALLY, SEA-DUTY PAY WHILE ON SEA DUTY AS DEFINED IN SECTION 2 HEREOF, THE PERIOD OF SUCH DUTY TO INCLUDE THE DATE OF REPORTING AND THE DATE OF DETACHMENT AS STATED IN ORDERS.

SECTION 2. 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.

(C) WHILE ON A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY ALTHOUGH BASED OR STATIONED ASHORE, BUT ONLY WHEN SUCH DUTY IS EIGHT DAYS OR MORE IN DURATION IN EACH CASE.

(D) WHILE ON A VESSEL RESTRICTED TO SERVICE IN THE INLAND WATERS OF THE UNITED STATES OR ON A NON-SELF-PROPELLED VESSEL, BUT ONLY ON DAYS WHEN SUCH VESSEL IS ACTUALLY OPERATING OUTSIDE OF INLAND WATERS FOR A PERIOD OF EIGHT DAYS OR MORE IN EACH CASE.

SECTION 8. THE SECRETARIES CONCERNED (WITHIN THE MEANING OF SECTION 102 (F) OF THE SAID CAREER COMPENSATION ACT OF 1949) * * * ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT HEREWITH,* * *

UNDER THE PROVISIONS OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, THE HEAD OF THE DEPARTMENT CONCERNED WAS AUTHORIZED TO DEFINE THE TERM "SEA DUTY.' THAT SECTION OF THE ACT, HOWEVER, WAS REPEALED BY THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZED SEA DUTY PAY UNDER REGULATIONS ISSUED BY THE PRESIDENT, AND HENCE THE HEAD OF THE DEPARTMENT CONCERNED NO LONGER HAD AUTHORITY TO DEFINE THE TERM "SEA DUTY.' SEE DECISION DATED MARCH 22, 1951, B 100165, TO THE SECRETARY OF DEFENSE.

IT APPEARS FROM THE INFORMATION BEFORE US THAT THE U.S.S. SEQUOIA WAS OPERATING ON THE POTOMAC RIVER WITH AN ENLISTED COMPLEMENT OF 16 MEMBERS, AND THAT THE MEMBERS WERE CREDITED WITH BASIC ALLOWANCE FOR SUBSISTENCE BECAUSE GOVERNMENT MESS WAS NOT AVAILABLE ON BOARD THAT VESSEL. SINCE THE DETERMINATION MADE BY THE SECRETARY OF NAVY ON NOVEMBER 30, 1945--- THAT DUTY ABOARD THE U.S.S. SEQUOIA CONSTITUTED SEA DUTY FOR PAY PURPOSES --- CEASED, BY OPERATION OF LAW, TO HAVE ANY EFFECT ON AND AFTER OCTOBER 1, 1949, AND SINCE, AS YOU STATE," THERE WAS NO CHANGE IN THE VESSEL'S STATUS OR ASSIGNMENT UNTIL 1 MARCH 1954," IT REASONABLY APPEARS FROM THE FACTS PRESENTED THAT THE ENLISTED MEMBERS WERE NOT ON SEA DUTY FOR ADDITIONAL PAY PURPOSES WITHIN THE MEANING OF THE DEFINITION CONTAINED IN SECTION 2 (A) AND (D) OF EXECUTIVE ORDER NO. 10168. THIS FACT APPARENTLY WAS RECOGNIZED BY THE CHIEF OF NAVAL OPERATIONS WHEN HE MADE HIS DETERMINATION ON MARCH 30, 1954, CONCERNING THE STATUS OF THAT VESSEL. THE MATTER HAS BEEN CAREFULLY CONSIDERED BUT WE FIND NO SUFFICIENT BASIS TO CONCLUDE THAT THE PAYMENTS OF SEA DUTY PAY TO PERSONNEL ON BOARD THE U.S.S. SEQUOIA OPERATING OR LOCATED ON THE POTOMAC RIVER DURING THE PERIOD NOVEMBER 1, 1950, TO FEBRUARY 28, 1954, WERE AUTHORIZED BY LAW AND EXECUTIVE ORDER NO. 10168 AND, HENCE, THE EXCEPTIONS TAKEN TO THOSE PAYMENTS WILL BE CONTINUED.

RESPECTING THE CONTENTION THAT COLLECTION OF THE ERRONEOUS PAYMENTS WOULD IMPOSE A FINANCIAL HARDSHIP ON THE INDIVIDUALS CONCERNED, PARTICULARLY SINCE SUCH PAYMENTS WERE MADE AS A RESULT OF AN ADMINISTRATIVE DETERMINATION, ATTENTION MAY BE INVITED TO THE DISCUSSION OF THAT MATTER IN OUR LETTER, B-114323, ADDRESSED TO YOU TODAY REGARDING SEA DUTY PAYMENTS FOR SERVICE ON THE GREAT LAKES.