B-150836, MAY 3, 1963

B-150836, MAY 3, 1963

TO MISS C. C. GORDON, AUTHORIZED CERTIFYING OFFICER, U.S. COAST GUARD HEADQUARTERS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1963, FP-4, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF LIEUTENANT COMMANDER LAWRENCE C. MCHUGH, COVERING FULL RETIRED PAY FOR THE MONTH OF JANUARY 1963.

YOU REPORT THAT COMMANDER MCHUGH, WHOSE RETIRED PAY IS $4,221 PER ANNUM, IS EMPLOYED AS JUNIOR ASSISTANT PURSER ON THE USNS GENERAL EDWIN D. PATRICK (T-AP124), AT AN ANNUAL SALARY OF $5,672 AND THAT IN CONNECTION WITH SUCH EMPLOYMENT HE IS FURNISHED SUBSISTENCE AND QUARTERS IN KIND, THE MONETARY VALUE OF WHICH HAS BEEN FIXED BY THE PACIFIC COAST AREA SCHEDULE OF WAGES, MARINE PERSONNEL, AT $1.17 PER DAY FOR SUBSISTENCE AND 51 CENTS PER DAY FOR QUARTERS OR $604.80 ANNUALLY. THE QUESTION PRESENTED IS WHETHER OR NOT THE MONETARY VALUE OF THE SUBSISTENCE AND QUARTERS MUST BE INCLUDED AS A PART OF THE EMPLOYEE'S "COMPENSATION" WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTE, SECTION 212 OF THE ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A.

IT HAS BEEN HELD THAT OVERTIME COMPENSATION, FOREIGN POST SALARY DIFFERENTIAL, AND TERRITORIAL POST DIFFERENTIAL ARE TO BE VIEWED AS "ADDITIONAL COMPENSATION" RATHER THAN A PART OF AN EMPLOYEE'S "BASIC COMPENSATION," AND THEREFORE ARE NOT TO BE CONSIDERED IN DETERMINING WHETHER OR NOT HIS CIVILIAN SALARY PLUS RETIRED PAY EXCEEDS THE $10,000 LIMITATION PRESCRIBED IN 5 U.S.C. 59A. SEE 37 COMP. GEN. 739 AND CASES CITED THEREIN. IT HAS BEEN HELD ALSO THAT THE MONETARY ALLOWANCE FOR QUARTERS, ETC., PRESCRIBED BY LAW FOR CERTAIN EMPLOYEES ON DUTY IN FOREIGN COUNTRIES ARE NOT A PART OF BASIC COMPENSATION WITHIN THE MEANING OF 5 U.S.C. 59A. SEE 26 COMP. GEN. 271, 278.

COMMANDER MCHUGH IS EMPLOYED ABOARD A MILITARY SEA TRANSPORTATION SERVICE VESSEL IN A POSITION THE COMPENSATION FOR WHICH IS ESTABLISHED BY THE SECRETARY OF THE NAVY. THE RATES OF COMPENSATION ARE CONTAINED IN SCHEDULES WHICH ARE ESTABLISHED AND REVISED FROM TIME TO TIME IN ACCORDANCE WITH THE PREVAILING MARITIME PRACTICE AND IT IS UNDERSTOOD THAT SUCH SCHEDULES ARE BASED ON THE PAY AND WORK PROVISIONS OF AGREEMENTS NEGOTIATED BETWEEN THE WEST COAST MARITIME UNIONS AND OCEAN GOING VESSEL OPERATORS. SECTION 208 (8) OF THE ACT OF OCTOBER 28, 1949, CH. 782, 63 STAT. 954, AS AMENDED, 5 U.S.C. 1082 (8), IS CITED IN THE REGULATIONS AS AUTHORITY FOR FIXING SUCH RATES OF COMPENSATION. SINCE THE ACTUAL RATES AND PRACTICES ARE NOT PRESCRIBED BY STATUTE THE VARIOUS REQUIREMENTS TO BE CONSIDERED IN ESTABLISHING SUCH RATES ARE NECESSARILY COVERED BY REGULATION. INSTRUCTION 531 OF CIVILIAN MARINE PERSONNEL INSTRUCTIONS, DATED APRIL 28, 1961, PRESCRIBES THE RULES TO BE FOLLOWED AND THE RESULTING WAGE SCHEDULES ARE PUBLISHED IN LETTERS FROM THE SECRETARY OF THE NAVY. SECNAV-MSTS 26 LETTER OF JANUARY 19, 1961, WITH AMENDMENTS IN LETTER OF AUGUST 31, 1962, CONTAIN THE PACIFIC SCHEDULE OF WAGES, WHICH INCLUDES THE RATE REPORTED TO HAVE BEEN PAID TO COMMANDER MCHUGH, $5,672 PER ANNUM.

CIVILIAN MARINE PERSONNEL INSTRUCTION 593, DATED NOVEMBER 9, 1962, GOVERNS THE FURNISHING OF QUARTERS AND SUBSISTENCE IN KIND, OR CASH ALLOWANCE IN LIEU THEREOF, AND PROVIDES THAT IN THE CASES OF OFFICER EMPLOYEES SUBJECT TO THE PACIFIC SCHEDULE OF WAGES THE SUBSISTENCE FURNISHED IN KIND SHALL BE VALUED AT $1.17 PER DAY AND THE QUARTERS AT 51 CENTS PER DAY, OR A TOTAL OF $604.80 PER ANNUM. WHILE THIS INSTRUCTION PROVIDES THAT THE VALUE OF SUBSISTENCE AND QUARTERS FURNISHED IN KIND SHALL BE INCLUDED IN THE EMPLOYEE'S GROSS EARNINGS FOR SOCIAL SECURITY (FICA) DEDUCTIONS AND FOR UNEMPLOYMENT COMPENSATION, IT PROVIDES FURTHER THAT "THE MONETARY VALUES PLACED UPON SUBSISTENCE AND QUARTERS FURNISHED IN KIND SHALL NOT BE USED FOR ANY OTHER PURPOSE.' ALSO, WE UNDERSTAND THAT UNDER PREVAILING MARITIME PRACTICE THE VALUE OF SUBSISTENCE AND QUARTERS IS NOT CONSIDERED A PART OF BASE PAY. SINCE 5 U.S.C. 1082 (8), ABOVE, AUTHORIZES VESSEL EMPLOYEES' COMPENSATION TO BE FIXED IN ACCORDANCE WITH MARITIME PRACTICES, THE ADMINISTRATIVE ACTION IN NOT CONSIDERING THE VALUE OF QUARTERS AND SUBSISTENCE AS A PART OF BASE PAY APPEARS TO BE CORRECT.

WE CONCLUDE, THEREFORE, THAT THE CASH VALUE OF QUARTERS AND SUBSISTENCE FURNISHED IN KIND TO EMPLOYEES ABOARD MILITARY SEA TRANSPORTATION SERVICE VESSELS IS NOT A PART OF THEIR "COMPENSATION" WITHIN THE MEANING OF THE DUAL COMPENSATION RESTRICTION IN THE 1932 ACT. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND MAY BE PAID IF OTHERWISE CORRECT.