B-35132, SEPTEMBER 14, 1943, 23 COMP. GEN. 190

B-35132, SEPTEMBER 14, 1943, 23 COMP. GEN. 190

PAY - ADDITIONAL - FOREIGN DUTY - NAVAL OFFICER'S RIGHT AS AFFECTED BY TEMPORARY NATURE OF INCIDENTAL DUTIES A NAVAL OFFICER WHO IS REQUIRED TO MAKE BRIEF TRIPS INTO MEXICO AND CANADA IN CONNECTION WITH THE PERFORMANCE OF TEMPORARY DUTIES WHICH WERE ONLY INCIDENTAL TO HIS PARAMOUNT OR PRIMARY DUTY WITHIN THE UNITED STATES IS NOT ENTITLED TO THE 10 PERCENT INCREASE IN BASE PAY AUTHORIZED BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942 FOR COMMISSIONED OFFICERS FOR ANY PERIOD OF SERVICE ,BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 14, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1943, FORWARDING A LETTER OF THE ASSISTANT FOR DISBURSING OFFICER IN CHARGE OF MILITARY ROLLS, HEADQUARTERS, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIFORNIA, IN WHICH THAT OFFICER REQUESTS DECISION AS TO WHETHER COMMANDER L. E. CLIFFORD, UNITED STATES NAVY, RETIRED, IS ENTITLED TO PAYMENT OF 10 PERCENTUM INCREASE IN PAY, AS FOR FOREIGN SERVICE DUTY, FOR THE PERIODS FROM MARCH 9 TO 11, 1942, MARCH 12 TO 18, 1942, AND APRIL 14 TO 17, 1943.

IT APPEARS THAT BY ORDERS OF DECEMBER 13, 1941, COMMANDER CLIFFORD WAS DETACHED FROM DUTY IN THE TWELFTH NAVAL DISTRICT AND ASSIGNED TO DUTY WITH THE PACIFIC SOUTHERN NAVAL COASTAL FRONTIER, NOW APPARENTLY THE WESTERN SEA FRONTIER. THE TEMPORARY DUTY HERE INVOLVED WAS INCIDENT TO THE FOLLOWING ORDERS:

MARCH 6, 1942.

FROM: COMMANDER, WESTERN SEA FRONTIER ( COMMANDANT,

TWELFTH NAVAL DISTRICT.)

TO: COMMANDER LLOYD E. CLIFFORD, U.S.N. ( RETIRED),

WESTERN SEA FRONTIER.

SUBJECT: TEMPORARY ADDITIONAL DUTY.

1. UPON RECEIPT OF THESE ORDERS, YOU WILL PROCEED TO PLACES INDICATED BELOW AND SUCH OTHER PLACES AS DEEMED NECESSARY, INCLUDING PLACES IN MEXICO, FOR TEMPORARY DUTY, IN CONNECTION WITH JOINT CONFERENCES, UNITED STATES AND MEXICO REPRESENTATIVES.

2. TO SAN DIEGO, CALIFORNIA, REPORTING TO THE COMMANDANT, ELEVENTH NAVAL DISTRICT, AND SUCH PLACES IN MEXICO AS MAY BE NECESSARY IN CONNECTION WITH THE CONFERENCE.

3. WHILE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, YOU WILL BE ALLOWED A PER DIEM ALLOWANCE OF $7.00 PLUS ACTUAL COST OF TRANSPORTATION.

4. THIS IS IN ADDITION TO YOUR PRESENT DUTY, AND UPON THE COMPLETION THEREOF YOU WILL RETURN TO YOUR REGULAR STATION AND RESUME YOUR REGULAR DUTIES.

9 APRIL, 1943

FROM: COMMANDER WESTERN SEA FRONTIER

TO: COMMANDER LLOYD E. CLIFFORD, U.S. NAVY ( RET.).

SUBJECT: TEMPORARY ADDITIONAL DUTY.

1. PROCEED TO THE PLACE (OR PLACES IN THE ORDER GIVEN) INDICATED BELOW FOR TEMPORARY DUTY. THIS IS IN ADDITION TO YOUR PRESENT DUTIES AND UPON COMPLETION THEREOF, YOU WILL RETURN TO YOUR STATION:

ON OR ABOUT APRIL 12, 1943, TO SEATTLE, WASHINGTON,

REPORTING TO COMMANDER, NORTHWEST SEA FRONTIER, FOR DUTY IN

CONNECTION WITH JOINT PLANNING.

2. YOU ARE AUTHORIZED TO VISIT, REVISIT, OR VARY THE ITINERARY TO INCLUDE SUCH OTHER PLACES, INCLUDING CANADA, AS MAY BE DEEMED NECESSARY IN THE EXECUTION OF THE TEMPORARY DUTY INVOLVED.

3. A PER DIEM OF $6.00 IN LIEU OF SUBSISTENCE WILL BE ALLOWED FOR TRAVEL WHILE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

THE TRAVEL PERFORMED IS SHOWN IN INDORSEMENTS ON THE SAID ORDERS AS FOLLOWS: ORDERS RECEIVED MARCH 6, 1942: LEFT SAN FRANCISCO, CALIF., 10730, 3/7/42; ARRIVED LOS ANGELES, CALIF., 2120, 3/7/42. LEFT LOS ANGELES, CALIF., 1000; 3/9/42; ARRIVED SAN DIEGO, CALIF., 1400, 3/9/42. LEFT SAN DIEGO, CALIF., 1700, 3/9/42; ARRIVED TIA JUANA, MEXICO, 1800, 3/9/42. LEFT TIA JUANA, MEXICO, 10900, 3/11/42; ARRIVED LOS ANGELES, CALIFORNIA, 1500, 3/11/42. LEFT LOS ANGELES, CALIF., 1600, 3/11/42; ARRIVED GLENDALE, CALIF., 1730, 3/11/42. LEFT GLENDALE, CALIF., 1830, 3/11/42; ARRIVED LOS ANGELES, CALIF., 2010, 3/11/42. LEFT LOS ANGELES, CALIF., 1300, 3/12/42; ARRIVED BURBANK, CALIF., 1345, 3/12/42. LEFT BURBANK, CALIF., 1540, 3/12/42; ARRIVED TIA JUANA, MEXICO, 2110, 3/12/42. LEFT TIA JUANA, MEXICO, 2125, 3/18/42; ARRIVED SAN FRANCISCO, CALIF., 2105, 3/19/42. ORDERS RECEIVED 9 APRIL 1943:

LEFT SAN FRANCISCO, 1600, APRIL 12, 1943, VIA S.P.-N.P.R.R.; ARRIVED SEATTLE, 1730, APRIL 13, 1943.

LEFT SEATTLE, 1800, APRIL 14, 1943, VIA G.N.R.R.; CROSSED BORDER INTO CANADA AT BLAINE, WASH., 2130, APRIL 14, 1943; ARRIVED VANCOUVER, B.C., 10016, APRIL 15, 1943.

LEFT VANCOUVER, B.C., 10001, APRIL 16, 1943, VIA C.P.R.R.; ARRIVED VICTORIA, B.C. 10700, APRIL 16, 1943.

LEFT VICTORIA, B.C., 10001, APRIL 17, 1943, VIA C.P.R.R.; ARRIVED VANCOUVER, B.C. 10700, APRIL 17, 1943.

LEFT VANCOUVER, B.C., 10900, APRIL 17, 1943, VIA G.N.R.R.; CROSSED BORDER AT BLAINE, WASH., 1045, APRIL 17, 1943; ARRIVED SEATTLE, WASH., 1415, APRIL 17, 1943.

LEFT SEATTLE, WASH., 1630, APRIL 17, 1943, VIA N.P.-S.P.R.R.; ARRIVED SAN FRANCISCO, 2230, APRIL 18, 1943.

IT THUS APPEARS THAT FROM APPROXIMATELY DECEMBER 13, 1941, TO APRIL 19, 1943, A PERIOD OF 16 MONTHS, COMMANDER CLIFFORD WAS ON DUTY WITH THE NOW WESTERN SEA FRONTIER, AND THAT DURING THIS PERIOD HE MADE TWO TRIPS INTO MEXICO AND ONE INTO CANADA ON TEMPORARY DUTY, AND THAT THE THREE TRIPS INVOLVED AN AGGREGATE OF 14 DAYS. THE QUESTION FOR DETERMINATION IS WHETHER DURING THOSE TRIPS THE OFFICER WAS ON DUTY "BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES," WITHIN THE CONTEMPLATION OF SECTION 2 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360, HEREINAFTER QUOTED, SO AS TO ENTITLE HIM TO ADDITIONAL PAY FOR FOREIGN SERVICE.

SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, PROVIDED INTER ALIA, FOR A 10 PERCENTUM INCREASE OF BASE PAY OF ANY COMMISSIONED OFFICER OF THE NAVY WHILE ON DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES. THIS SECTION WAS EXPRESSLY REPEALED BY SECTION 19 OF THE ACT OF JUNE 16, 1942, 56 STAT. 369, BUT THERE WERE ENACTED AS SECTION 2 OF THE LATTER ACT, 56 STAT. 360, PROVISIONS AS FOLLOWS:

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.

IT HAS BEEN HELD CONSISTENTLY THAT A BRIEF PERIOD OF DUTY IN A FOREIGN COUNTRY DOES NOT CONSTITUTE FOREIGN SERVICE, WITHIN THE MEANING OF FOREIGN SERVICE PAY LAWS, IF THE DUTY THERE PERFORMED WAS MERELY INCIDENT TO A PARAMOUNT OR PRIMARY DUTY AT A STATION WITHIN THE UNITED STATES. SEE 73 MS COMP. DEC. 87, APRIL 7, 1915; 23 COMP. DEC. 82. CF., ALSO, 21 COMP. GEN. 1050, 1054, IN REGARD TO THE QUESTION OF FOREIGN SERVICE PAY UNDER SECTION 18 OF THE ACT OF MARCH 7, 1942, SUPRA, FOR ARMY OFFICERS ENGAGED IN RECONNAISSANCE FLIGHTS FROM BASES IN THE UNITED STATES TO POINTS OUTSIDE THE UNITED STATES.

IT APPEARS THAT COMMANDER CLIFFORD'S TEMPORARY DUTIES OUTSIDE THE UNITED STATES FOR PERIODS OF THREE, SEVEN, AND FOUR DAYS, RESPECTIVELY, IN CONNECTION WITH THE JOINT CONFERENCES AND JOINT PLANNING WERE IN DIRECT CONNECTION WITH HIS PARAMOUNT DUTIES WITH THE WESTERN SEA FRONTIER. THE ORDERS DID NOT CONFINE THE DUTY TO BE PERFORMED TO POINTS IN MEXICO AND CANADA BUT ON THE CONTRARY DIRECTED THE OFFICER TO DESIGNATED POINTS WITHIN THE UNITED STATES, IN CONNECTION WITH JOINT CONFERENCES AND SUCH OTHER PLACES AS DEEMED NECESSARY INCLUDING MEXICO AND CANADA, RESPECTIVELY. CLEARLY THE DUTY IN MEXICO AND CANADA WAS ONLY INCIDENTAL TO THE DUTIES DIRECTED TO BE PERFORMED AND WHICH APPARENTLY RELATED TO THE OFFICER'S PRIMARY DUTIES IN THE UNITED STATES. PRIOR STATUTES WHICH AUTHORIZED FOREIGN SERVICE PAY HAVE NOT BEEN REGARDED AS APPLICABLE IN SUCH CASES AND NO REASON IS APPARENT IN EITHER THE PURPOSE OR INTENT OF SECTION 2 OF THE ACT OF JUNE 16, 1942, SUPRA, TO AUTHORIZE THE ADDITIONAL PAY UNDER SUCH CIRCUMSTANCES.

ACCORDINGLY, YOU ARE ADVISED THAT COMMANDER CLIFFORD IS NOT ENTITLED TO AN INCREASE IN PAY, AS FOR FOREIGN SERVICE DUTY, FOR PERIODS INVOLVED.