B-28788, SEPTEMBER 30, 1942, 22 COMP. GEN. 289

B-28788, SEPTEMBER 30, 1942, 22 COMP. GEN. 289

RENTAL ALLOWANCE - NAVY OFFICERS - RIGHTS AS AFFECTED BY TEMPORARY SEA DUTY A NAVY OFFICER, WITHOUT DEPENDENTS, WHOSE PARAMOUNT DUTY IS SHORE DUTY MAY NOT BE PAID RENTAL ALLOWANCE UNDER SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942 WHILE ON TEMPORARY ADDITIONAL DUTY AT SEA WHICH HAS BEEN DEFINED AS "SEA DUTY" BY THE SECRETARY OF THE NAVY FOR ADDITIONAL PAY PURPOSES UNDER SECTION 2 OF SAID ACT, NOR MAY HE ELECT TO RECEIVE RENTAL ALLOWANCE IN LIEU OF THE ADDITIONAL PAY PRESCRIBED FOR SEA DUTY. MODIFIED BY 22 COMP. GEN. 467.)

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 30, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 9, 1942, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION WHETHER AN OFFICER, WITHOUT DEPENDENTS, WHOSE PARAMOUNT DUTY IS SHORE DUTY AND WHO IS PERFORMING TEMPORARY ADDITIONAL DUTY AT SEA, IS ENTITLED TO DRAW RENTAL ALLOWANCE FOR SUCH PERIOD OF TEMPORARY DUTY WHILE AT THE SAME TIME DRAWING SEA DUTY PAY PURSUANT TO THE PROVISIONS OF ALNAV 131-42, ISSUED UNDER THE AUTHORITY OF SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 ( PUBLIC LAW 607--- 77TH CONGRESS), APPROVED JUNE 16, 1942. IN THE EVENT THIS QUESTION IS DETERMINED IN THE NEGATIVE, A FURTHER QUESTION HAS ARISEN AS TO WHETHER SUCH AN OFFICER MAY CONTINUE TO DRAW HIS RENTAL ALLOWANCE WHILE ON TEMPORARY DUTY AT SEA IF HE DOES NOT DRAW THE ADDITIONAL PAY FOR SEA DUTY.

THE PAYMENT OF BOTH RENTAL ALLOWANCE AND SEA DUTY COMPENSATION TO OFFICERS, WITH DEPENDENTS, IS UNQUESTIONABLY PROPER, PROVIDED, OF COURSE THAT THE DEPENDENTS ARE NOT FURNISHED QUARTERS IN KIND BY THE GOVERNMENT. IT IS THEREFORE CONSIDERED THAT LIKE PAYMENTS TO OFFICERS, WITHOUT DEPENDENTS, WHO ARE PERFORMING TEMPORARY SEA DUTY, CANNOT BE REGARDED AS IMPROPER IN THE ABSENCE OF A SPECIFIC STATUTORY PROHIBITION, UNLESS CLEARLY INCONSISTENT. THE FOLLOWING EXAMINATION OF THE RESPECTIVE PURPOSES FOR WHICH RENTAL ALLOWANCE AND SEA DUTY COMPENSATION ARE PAID APPEARS TO INDICATE THAT SUCH DUAL PAYMENTS ARE PROPER IN THE CASE HERE UNDER CONSIDERATION.

SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES FOR A PERCENTUM INCREASE IN PAY OF OFFICERS FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED AND THAT SUCH SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT. UNDER THE PROVISIONS OF ALNAV 131-42, SUPRA, SEA DUTY PAY MAY BE DRAWN FOR SERVICE PERFORMED ON A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY INCLUDING PERIODS OF TEMPORARY DUTY IN SUCH VESSEL EVEN THOUGH PRIMARY DUTY IS SHORE DUTY.

NO PAY FOR SEA DUTY HAS BEEN PROVIDED DURING TIME OF PEACE FOR MORE THAN TWENTY YEARS. IT THEREFORE SEEMS APPARENT THAT THE PRESENT EXTRA PAY FOR SEA DUTY IS INTENDED AS COMPENSATION FOR EXTRA HAZARDOUS CONDITIONS THAT OCCUR AT SEA IN TIME OF WAR WHEN NAVY PERSONNEL ARE EXPOSED TO ENEMY ACTION.

WITH RESPECT TO RENTAL ALLOWANCES, SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES, IN PART, AS FOLLOWS:

"NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY * * *"

THE ABOVE QUOTED PROVISION OF LAW IS A REENACTMENT OF THE ACT OF JUNE 10, 1922, AS AMENDED (37 U.S.C. 10), UNDER WHICH EXECUTIVE ORDER 4063 OF AUGUST 13, 1924, WAS ISSUED AND IN WHICH SEA DUTY WAS DEFINED AS FOLLOWS:

"THE TERM "SEA DUTY" SHALL BE CONSTRUED TO MEAN SERVICE AT SEA BY AN OFFICER IN A VESSEL EMPLOYED BY AUTHORITY OF LAW UNDER ORDERS REQUIRING HIM TO REPORT FOR DUTY ON BOARD SAID VESSEL OR ASSIGNING HIM TO DUTY IN COMMAND OF VESSELS OR AS A MEMBER OF THE STAFF OF SUCH COMMANDER: PROVIDED, THAT THE OFFICER CONCERNED IS NOT DURING THE SAME PERIOD REQUIRED TO RENDER SERVICE ON SHORE OF A CHARACTER DETERMINED BY THE DEPARTMENT CONCERNED TO BE PARAMOUNT TO THE DUTY WHICH HE IS REQUIRED TO RENDER AT SEA.' A PROPOSED EXECUTIVE ORDER WHICH CONTEMPLATES A RESTATEMENT OF THE FOREGOING PROVISION UNDER THE PRESENT LAW IS NOW PENDING.

THE HISTORY OF THE PRESENT STATUTE THUS ESTABLISHES THAT IT WAS CONTEMPLATED THAT RENTAL ALLOWANCE SHOULD BE PAID TO OFFICERS, WITHOUT DEPENDENTS, WHILE TEMPORARILY EMPLOYED ON SEA DUTY IN SUCH CASES WHERE THE PARAMOUNT DUTY OF SUCH OFFICERS IS DETERMINED TO BE ON SHORE. THIS PRACTICE WAS APPARENTLY INTENDED TO AVOID THE HARDSHIPS THAT WOULD OCCUR WERE AN OFFICER DEPRIVED OF HIS RENTAL ALLOWANCE WHEN TEMPORARILY EMPLOYED ON SEA DUTY AND CONSEQUENTLY REQUIRED FOR ECONOMIC REASONS TO SURRENDER HIS QUARTERS ON SHORE DESPITE HIS EXPECTATION THAT HE WOULD SHORTLY RETURN TO SHORE DUTY.

SINCE RENTAL ALLOWANCE IS PAID IN ORDER TO PROVIDE QUARTERS AND MAY EVEN BE PAID WHEN AN OFFICER IS TEMPORARILY AT SEA, WHILE, ON THE OTHER HAND, SEA DUTY COMPENSATION IS PAID IN TIME OF WAR BY REASON OF EXTRA HAZARDOUS CONDITIONS, THE PAYMENT OF RENTAL ALLOWANCE AND SEA DUTY PAY TO AN OFFICER, WITHOUT DEPENDENTS, WHILE HE IS TEMPORARILY EMPLOYED ON SEA DUTY IS NEITHER INCONSISTENT NOR A DOUBLE PAYMENT FOR THE SAME PURPOSE AND, THEREFORE, APPEARS LEGALLY PROPER.

YOUR DECISION IS REQUESTED AS TO WHETHER AN OFFICER, WITHOUT DEPENDENTS, WHOSE PARAMOUNT DUTY IS SHORE DUTY AND WHO IS PERFORMING TEMPORARY ADDITIONAL DUTY AT SEA, IS ENTITLED TO PAYMENT OF RENTAL ALLOWANCE FOR SUCH PERIOD OF TEMPORARY DUTY WHILE AT THE SAME TIME IN RECEIPT OF SEA DUTY PAY PURSUANT TO THE PROVISIONS OF ALNAV 131-42. IN THE EVENT THIS QUESTION IS DECIDED IN THE NEGATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER SUCH AN OFFICER, WITHOUT DEPENDENTS, MAY CONTINUE TO BE ENTITLED TO PAYMENT OF RENTAL ALLOWANCE WHILE ON TEMPORARY DUTY AT SEAIF HE DOES NOT DRAW THE ADDITIONAL PAY FOR SEA DUTY.

SECTION 2 OF THE ACT OF JUNE 16, 1942, PUBLIC LAW NO. 607, 56 STAT. 359, 360, PROVIDES THAT:

THE BASE PAY OF ANY ENLISTED MAN, WARRANT OFFICER, OR NURSE (FEMALE) IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE INCREASED BY 20 PERCENTUM AND THE BASE PAY OF ANY COMMISSIONED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, WHICH INCREASES IN PAY SHALL BE IN ADDITION TO PAY AND ALLOWANCES OTHERWISE AUTHORIZED: PROVIDED, THAT THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY FOR AVIATION AND SUBMARINE DUTY: PROVIDED FURTHER, THAT THIS SECTION SHALL BE EFFECTIVE FROM DECEMBER 7, 1941, AND SHALL CEASE TO BE IN EFFECT TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR IS PROCLAIMED BY THE PRESIDENT.

ALNAV. NO. 131-42, PROMULGATED PURSUANT TO THIS STATUTE DEFINES SEA DUTY AS FOLLOWS:

(1) SERVICE PERFORMED IN A VESSEL PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY INCLUDING PERIODS OF TEMPORARY ADDITIONAL DUTY IN SUCH VESSEL EVEN THOUGH PRIMARY DUTY IS SHORE DUTY * * *.

(4) DUTY HEREIN DETERMINED SEA DUTY SHALL BE REGARDED AS SEA DUTY FROM SEVEN DECEMBER NINETEEN FORTY ONE.

SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, 362, PROVIDES THAT:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY, NOR SHALL ANY RENTAL ALLOWANCE ACCRUE TO AN OFFICER WITH OR WITHOUT DEPENDENTS WHO IS ASSIGNED QUARTERS AT HIS PERMANENT STATION UNLESS A COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED CERTIFIES THAT SUCH QUARTERS ARE NOT ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY * * *

YOU QUOTE PARAGRAPH (D) OF SECTION 1 OF EXECUTIVE ORDER NO. 4063, AUGUST 13, 1924, ENTITLED " DEFINITIONS.' YOU DO NOT QUOTE A PARAGRAPH APPEARING IN SECTION 3 ENTITLED " PAYMENTS," AS OLLOWS: "/B/--- AN OFFICER WHO HAS NO DEPENDENTS SHALL NOT BE PAID A RENTAL ALLOWANCE FOR ANY PERIOD DURING WHICH HE IS ON FIELD OR SEA DUTY.'

OBVIOUSLY THIS MUST BE CONSIDERED IN CONNECTION WITH THE DEFINITION OF SEA DUTY CONTAINED IN THE REGULATIONS AS QUOTED BY YOU.

SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AUTHORIZED THE PAYMENT OF ADDITIONAL PAY FOR SEA DUTY AS SUCH DUTY MAY BE DEFINED BY THE HEAD OF THE DEPARTMENT CONCERNED, AND YOUR QUESTION INVOLVES THE SITUATION OF AN OFFICER BASED AT A SHORE STATION AND ASSIGNED TO TEMPORARY ADDITIONAL DUTY AT SEA AND WHOSE COMMANDING OFFICER APPARENTLY HAS DETERMINED THAT HIS PARAMOUNT DUTY IS SHORE DUTY. UNDER THE PLAIN AND POSITIVE TERMS OF SECTION 6 OF THE PAY READJUSTMENT ACT OF 1942, AN OFFICER WITHOUT DEPENDENTS IS NOT WHILE ON SEA DUTY ENTITLED TO RENTAL ALLOWANCE. WHILE ON SEA DUTY HE IS UNDER SECTION 2 OF THE SAME STATUTE ENTITLED TO THE ADDITIONAL PAY THEREIN PRESCRIBED. ACCORDINGLY, AS TO YOUR FIRST QUESTION, YOU ARE ADVISED THAT AN OFFICER WITHOUT DEPENDENTS WHOSE PARAMOUNT DUTY IS DETERMINED TO BE SHORE DUTY, IS NOT ENTITLED TO RENTAL ALLOWANCE WHILE ASSIGNED TO AND PERFORMING TEMPORARY ADDITIONAL DUTY AT SEA WHICH HAS BEEN DEFINED BY THE SECRETARY OF THE NAVY AS SEA DUTY, AND AS TO YOUR SECOND QUESTION, YOU ARE ADVISED THAT NO ELECTION IS GIVEN UNDER THE LAW TO RECEIVE RENTAL ALLOWANCE IN LIEU OF ADDITIONAL PAY FOR SEA DUTY.