B-140796, JANUARY 12, 1961, 40 COMP. GEN. 414

B-140796, JANUARY 12, 1961, 40 COMP. GEN. 414

MILITARY PERSONNEL - FOREIGN DUTY - DUTY AT ISOLATED ISLANDS OFF UNITED STATES COAST WHETHER AN ARTIFICIAL ISLAND (1TEXAS TOWERS) LOCATED APPROXIMATELY 40 MILES OFF THE COAST OF THE UNITED STATES ON THE OUTER CONTINENTAL SHELF MAY BE CONSIDERED AS OUTSIDE OF THE CONTINENTAL UNITED STATES WOULD REQUIRE CLARIFYING LEGISLATIVE OR JUDICIAL ACTION IN VIEW OF THE PROVISIONS OF THE OUTER CONTINENTAL SHELF LANDS ACT, 43 U.S.C. 1331, WHICH EVIDENCE A CONGRESSIONAL INTENT TO EXTEND THE JURISDICTION, AND TO SOME EXTENT THE AREA, OF THE UNITED STATES TO INCLUDE SUCH ARTIFICIAL ISLANDS ON THE OUTER CONTINENTAL SHELF; THEREFORE, IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION, PAYMENT OF FOREIGN DUTY PAY TO ENLISTED PERSONS OF THE UNIFORMED SERVICES FOR DUTY ON SUCH ARTIFICIAL ISLANDS IS TOO DOUBTFUL TO BE AUTHORIZED; HOWEVER, IF THE REGULATIONS FOR SPECIAL PAY FOR SEA DUTY ISSUED BY THE PRESIDENT, PURSUANT TO 37 U.S.C. 237, ARE BROADENED TO INCLUDE IN THE DEFINITION OF SEA DUTY THE TYPE OF DUTY ON SUCH ISLAND, PAYMENT OF SPECIAL PAY WOULD BE PROPER.

TO THE SECRETARY OF THE AIR FORCE, JANUARY 12, 1961:

BY LETTER OF SEPTEMBER 21, 1960, THE ASSISTANT SECRETARY OF THE AIR FORCE (1FINANCIAL MANAGEMENT) REQUESTED THAT WE GIVE FURTHER CONSIDERATION TO THAT PART OF OUR DECISION OF JANUARY 25, 1960, 39 COMP. GEN. 540, PERTAINING TO THE PAYMENT OF FOREIGN DUTY PAY. THIS REQUEST HAS BEEN APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. SS-AF-525.

THE FACTS CONSIDERED IN THE DECISION OF JANUARY 25, 1960, WERE ADMINISTRATIVELY DESCRIBED AS FOLLOWS:

ORDINARILY THERE IS A CLEAR DISTINCTION BETWEEN "DUTY AT A PLACE WITHIN THE CONTINENTAL UNITED STATES" ON THE ONE HAND AND "SEA DUTY" OR "DUTY AT AN OVERSEA STATION" ON THE OTHER. HOWEVER, IN THE CASE OF THE TEXAS TOWERS, SAN CLEMENTE ISLAND, AND SANTA ROSA ISLAND THERE IS A REASONABLE DOUBT AS TO WHICH DESCRIPTION APPLIES.

THE TEXAS TOWERS ARE LOCATED APPROXIMATELY 40 MILES OFF THE NEW ENGLAND COAST AND CONTAIN NO ACCOMMODATIONS FOR DEPENDENTS. PERSONNEL SERVING AT THE TOWERS ARE ASSIGNED TO OTIS AIR FORCE BASE WITH PERMANENT DUTY STATION AT THE TOWERS AND ARE ROTATED BETWEEN OTIS AIR FORCE BASE AND THE TOWERS EVERY 30 DAYS. WHILE ASSIGNED TO THE TOWERS, PERSONNEL RECEIVE FOREIGN DUTY PAY AND OVERSEA SERVICE CREDIT.

SAN CLEMENTE ISLAND AND SANTA ROSA ISLAND ARE PART OF THE STATE OF CALIFORNIA BUT ARE LOCATED MORE THAN 30 MILES FROM THE CALIFORNIA COAST AND CONTAIN NO ACCOMMODATIONS FOR DEPENDENTS. PERSONNEL ARE ASSIGNED TO THE ISLANDS AS PERMANENT DUTY STATIONS AND REMAIN THERE FOR A FULL 18 MONTH TOUR. WHILE STATIONED ON THESE ISLANDS, MEMBERS RECEIVE FOREIGN DUTY PAY AND OVERSEA SERVICE CREDIT.

ON AUTHORITY OF OUR DECISION OF OCTOBER 7, 1949, B-89292, IT WAS CONCLUDED THAT FOREIGN DUTY PAY WAS NOT PROPERLY PAYABLE FOR DUTY ON TEXAS TOWERS, ON SAN CLEMENTE ISLAND OR ON SANTA ROSA ISLAND. IT WAS STATED IN THE DECISION OF OCTOBER 7, 1949, THAT THERE SEEMED TO BE NO QUESTION THAT SAN NICOLAS ISLAND IS A PART OF THE STATE OF CALIFORNIA, A PART OF THE UNITED STATES, AND NOT BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES AND THAT, THEREFORE, THE INCREASE OF 20 PERCENT IN THE BASE PAY OF AN ENLISTED MAN AUTHORIZED FOR "DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES," WAS NOT WARRANTED.

THE LETTER OF THE ASSISTANT SECRETARY STATES THAT OUR CONCLUSION RELATIVE TO DUTY PERFORMED ON SAN CLEMENTE, SANTA ROSA AND SAN NICOLAS ISLANDS IS NOT QUESTIONED AND WILL BE FOLLOWED IN THE CASE OF THESE AND OTHER SIMILAR (NATURAL) ISLAND LOCATIONS WHICH ARE ESTABLISHED TO BE A PART OF ONE OF THE STATES OF THE UNITED STATES, SINCE THESE LOCATIONS ARE NOT CONSIDERED TO BE "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES" WITHIN THE CONTEMPLATION OF SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 811, AS AMENDED, 37 U.S.C. 237. HOWEVER, IT IS URGED THAT WE RECONSIDER OUR DECISION RELATIVE TO THE PAYMENT OF FOREIGN DUTY PAY FOR DUTY ON TEXAS TOWERS WHICH ARE LOCATED APPROXIMATELY 40 MILES OFF THE NEW ENGLAND COAST ON THE OUTER CONTINENTAL SHELF.

THE STATUTORY AUTHORITY FOR PAYMENT OF SPECIAL PAY FOR SEA AND FOREIGN DUTY AS CONTAINED IN 37 U.S.C. 237 PROVIDES THAT, 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 ASKA," BE ENTITLED TO RECEIVE SUCH SPECIAL PAY AT THE MONTHLY RATES STIPULATED. THE QUESTION INVOLVED HERE IS WHETHER THE TEXAS TOWERS--- LOCATED ON THE OUTER CONTINENTAL SHELF OUTSIDE THE TERRITORIAL WATERS OF THE UNITED STATES-- MAY BE CONSIDERED AS BEING "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES," FOR FOREIGN DUTY PAY PURPOSES.

THE TERM "OUTER CONTINENTAL SHELF" IS DEFINED IN SECTION 2 OF THE OUTER CONTINENTAL SHELF LANDS ACT OF AUGUST 7, 1953, 67 STAT. 462, 43 U.S.C. 1331, AS INCLUDING ALL SUBMERGED LANDS LYING SEAWARD AND OUTSIDE OF THE AREA OF LANDS BENEATH NAVIGABLE WATERS AS DEFINED IN SECTION 2 OF THE SUBMERGED LANDS ACT OF MAY 22, 1953, 67 STAT. 29. SECTION 3 OF THE ACT OF AUGUST 7, 1953, 43 U.S.C. 1332, STATES THAT IT IS THE DECLARED POLICY OF THE UNITED STATES THAT THE SUBSOIL AND SEABED OF THE OUTER CONTINENTAL SHELF "APPERTAIN" TO THE UNITED STATES AND ARE SUBJECT TO ITS JURISDICTION, CONTROL AND POWER OF DISPOSITION AS FURTHER PROVIDED IN THIS ACT. SECTION 4 PROVIDES THAT THE CONSTITUTION AND LAWS AND CIVIL AND POLITICAL JURISDICTION OF THE UNITED STATES ARE EXTENDED TO THE SUBSOIL AND SEABED OF THE OUTER CONTINENTAL SHELF AND TO ALL ARTIFICIAL ISLANDS AND FIXED STRUCTURES WHICH MAY BE ERECTED THEREON FOR THE PURPOSE OF EXPLORING FOR, DEVELOPING, REMOVING, OR TRANSPORTING RESOURCES THEREFROM, TO THE SAME EXTENT AS IF THE OUTER CONTINENTAL SHELF WERE AN AREA OF EXCLUSIVE FEDERAL JURISDICTION LOCATED WITHIN A STATE. TO THE EXTENT THEY ARE APPLICABLE AND NOT INCONSISTENT WITH THAT ACT OR OTHER FEDERAL LAWS AND REGULATIONS, THE CIVIL AND CRIMINAL LAWS OF THE STATE ADJACENT THERETO ARE EXTENDED TO ARTIFICIAL ISLANDS LOCATED ON THE OUTER CONTINENTAL SHELF AND ARE DECLARED TO BE THE LAW OF THE UNITED STATES. PROVISION IS MADE FOR LEASING PARTS OF THAT AREA FOR RESOURCE DEVELOPMENT PURPOSES.

WHILE NOT NECESSARILY CONTROLLING IN THE MATTER UNDER CONSIDERATION HERE, THE PROVISIONS OF THE ACT OF AUGUST 7, 1953, EVIDENCE A LEGISLATIVE INTENT TO EXTEND THE JURISDICTION, AND TO SOME EXTENT THE AREA, OF THE UNITED STATES TO INCLUDE ARTIFICIAL ISLANDS LOCATED ON THE OUTER CONTINENTAL SHELF. DUTY ON TEXAS TOWERS THUS PRESENTS A SITUATION WHICH IS SOMEWHAT COMPARABLE TO THAT CONSIDERED IN THE DECISION OF OCTOBER 7, 1949, AND WE FEEL THAT THE PAYMENT OF SPECIAL PAY ON THE BASIS THAT SUCH DUTY IS PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES WOULD REQUIRE CLARIFYING LEGISLATIVE OR JUDICIAL ACTION. IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION TO THE CONTRARY, IT IS CONCLUDED THAT THE ENTITLEMENT OF ENLISTED PERSONS TO FOREIGN DUTY PAY DURING THE PERIOD OF THEIR DUTY ON TEXAS TOWERS, LOCATED ON THE OUTER CONTINENTAL SHELF, IS TOO DOUBTFUL TO WARRANT OUR HOLDING THAT PAYMENT OF SUCH PAY IS AUTHORIZED. SEE CHARLES V. UNITED STATES, 19 CT.1CL. 316, AND LONGWILL V. UNITED STATES, 17 CT.1CL. 288. YOUR QUESTION IS ANSWERED ACCORDINGLY.

YOU MAY BE ADVISED, HOWEVER, THAT IF THE REGULATIONS RELATING TO SPECIAL PAY FOR SEA DUTY ISSUED BY THE PRESIDENT PURSUANT TO SECTION 206 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 237, SHOULD BE BROADENED TO INCLUDE IN THE DEFINITION OF SEA DUTY THE TYPE OF DUTY PERFORMED ON THE TEXAS TOWERS, PAYMENT OF THE SPECIAL PAY HERE INVOLVED THEREAFTER WOULD BE AUTHORIZED.