B-38078, DECEMBER 22, 1943, 23 COMP. GEN. 460

B-38078, DECEMBER 22, 1943, 23 COMP. GEN. 460

PAY - AVIATION AND SUBMARINE DUTY - COMPUTATION IN CONNECTION WITH SEA AND FOREIGN SHORE DUTY PAY SECTION 18 OF THE ACT OF MARCH 7, 1942, WHICH AUTHORIZED THE PERCENTUM INCREASE IN BASE PAY FOR SEA OR FOREIGN SHORE DUTY PROVIDED THEREIN TO BE INCLUDED IN COMPUTING INCREASES IN PAY FOR AVIATION AND SUBMARINE DUTY, DOES NOT AUTHORIZE THE COMPUTATION OF SEA DUTY OR FOREIGN SERVICE PAY ON AVIATION PAY, NOTWITHSTANDING THE FACT THAT IN THE CASE OF "NONFLYING" OFFICERS, WHEN THE STATUTORY LIMITATION OF $720 PER ANNUM ON THEIR AVIATION PAY IS APPLIED, NO BENEFIT IS DERIVED FROM COMPUTING AVIATION PAY ON THE INCREASE FOR SEA DUTY OR FOREIGN SERVICE, AS DIRECTED BY THE STATUTE. INSOFAR AS THAT PORTION OF THE DECISION IN 21 COMP. GEN. 932 WITH RESPECT TO SUBMARINE AND DIVING DUTY PAY IS INCONSISTENT HEREWITH, IT WILL NO LONGER BE FOLLOWED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 22, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 1, 1943, WITH ENCLOSURES, FILE JAG:K:WJG:HR SO1028 169, RELATIVE TO AN EXCEPTION TAKEN BY THE AUDIT DIVISION OF THIS OFFICE TO A PAYMENT MADE TO LIEUTENANT (JG) JOHN B. ROWE, U.S. NAVY, ON D.O. VOUCHER NO. 92 OF THE MARCH, 1942, ACCOUNTS OF THE DISBURSING OFFICER, SECOND MARINE AIRCRAFT WING. THE EXCEPTION REFERRED TO QUESTIONED THE RIGHT OF LIEUTENANT ROWE TO THE PERCENTAGE INCREASE IN PAY FOR SEA AND FOREIGN SERVICE DUTY COMPUTED ON HIS AVIATION PAY AS FOR A NONFLYING OFFICER.

AUTHORITY FOR ADDITIONAL PAY FOR SEA OR FOREIGN SERVICE DUTY AT THE TIME THE PAYMENT HERE CONCERNED WAS MADE WAS CONTAINED IN SECTION 18 OF THE ACT OF MARCH 7, 1942, 56 STAT. 148, WHICH PROVIDED:

SEC. 18. HEREAFTER 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 IN SUCH FORCES SHALL BE INCREASED BY 10 PERCENTUM FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, 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 AS NOW UTHORIZED: 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. (SEE, ALSO, THE SIMILAR CURRENT PROVISION CONTAINED IN SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360).

FOR A NUMBER OF YEARS THE NAVAL APPROPRIATION ACTS HAVE CONTAINED A PROVISION FIXING THE MAXIMUM AVIATION PAY FOR "NONFLYING OFFICER.' SINCE THE FISCAL YEAR 1940, UP TO AND INCLUDING THE FISCAL YEAR 1944, THE RATE OF SUCH PAY HAS BEEN LIMITED TO THE RATES PRESCRIBED BY LAW FOR THE ARMY, THE NAVAL APPROPRIATION ACT, 1942, PERTINENT TO THE PRESENT CASE PROVIDING UNDER THE HEADING " BUREAU OF SUPPLIES AND ACCOUNTS, PAY SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," SUBHEADING " PAY OF NAVAL PERSONNEL," 55 STAT. 158:

* * * FOR INCREASED PAY FOR OFFICERS OF THE REGULAR NAVY FOR MAKING AERIAL FLIGHTS, NO PART OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY MORE THAN NINE OFFICERS ABOVE THE RANK OF CAPTAIN, NOR BY NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY, WHICH SHALL BE THE LEGAL MAXIMUM RATES AS TO SUCH NONFLYING OFFICERS OR OBSERVERS * * *.

THE WORDING OF THE STATUTES SEEMS CLEAR AND EXPLICIT. THE ACT OF MARCH 7, 1942, SPECIFICALLY PROVIDES THAT THE "BASE PAY" OF ANY COMMISSIONED OFFICER SHALL BE "INCREASED BY 10 PERCENTUM" FOR ANY PERIOD OF SERVICE WHILE ON SEA DUTY, OR DUTY IN ANY PLACE BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA. AVIATION PAY, WHETHER PAID TO A FLYING OFFICER OR A "NONFLYING ICER," IS NO PART OF HIS BASE PAY AND, HENCE, THE PERCENTUM INCREASE IN "BASE PAY" FOR SEA DUTY AND FOREIGN SERVICE IS NOT TO BE COMPUTED THEREON. THE FIRST PROVISO THAT "THE PERCENTUM INCREASES HEREIN AUTHORIZED SHALL BE INCLUDED IN COMPUTING INCREASES IN PAY AVIATION AND SUBMARINE DUTY" IS LIKEWISE PLAIN. THE "PERCENTUM INCREASES HEREIN AUTHORIZED" ARE THE PERCENTUM INCREASES OF "BASE PAY" AUTHORIZED FOR SEA DUTY AND FOREIGN SERVICE. SUCH INCREASES OF THE BASE PAY ARE TO BE INCLUDED AS A PART OF THE PAY ON WHICH AVIATION AND SUBMARINE PAY IS COMPUTED. THAT IS, AVIATION PAY IS TO BE COMPUTED ON THE OFFICER'S PAY INCLUDING ANY SEA DUTY OR FOREIGN SERVICE PAY; AND IN THAT SENSE AND TO THAT EXTENT THE AVIATION PAY IS AUTHORIZED TO BE COMPUTED ON THE SEA DUTY OR FOREIGN SERVICE PAY. BUT THAT DOES NOT MEAN THAT THE AUTHORIZATION MAY BE REVERSED AND READ AS AUTHORIZING THE COMPUTATION OF SEA DUTY OR FOREIGN SERVICE PAY ON THE AVIATION PAY. THE CIRCUMSTANCE THAT A "NONFLYING" OFFICER'S AVIATION PAY IS OTHERWISE LIMITED TO A RATE NOT IN EXCESS OF $720 PER ANNUM, SO THAT HE DERIVES NO BENEFIT FROM COMPUTING HIS AVIATION PAY ON THAT PORTION OF HIS PAY REPRESENTING THE SEA DUTY OR FOREIGN SERVICE INCREASE, CANNOT SERVE TO AUTHORIZE THE COMPUTATION OF HIS SEA DUTY OR FOREIGN SERVICE PAY ON HIS AVIATION INCREASE, INSTEAD OF COMPUTING HIS AVIATION PAY ON HIS PAY, INCLUDING THE SEA DUTY OR FOREIGN SERVICE INCREASE, AS DIRECTED BY THE STATUTE. TO THE EXTENT THAT THE ANSWER TO THE FIRST QUESTION IN THE DECISION OF APRIL 17, 1942, 21 COMP. GEN. 932--- WHERE THE SUBMARINE PAY OF ENLISTED MEN WAS TREATED, IN EFFECT, AS A PART OF THEIR BASE PAY ON WHICH THE STATUTE AUTHORIZED THE COMPUTATION OF THE SEA DUTY OR FOREIGN SERVICE INCREASE- - IS IN CONFLICT WITH THE VIEWS STATED HEREIN, THAT PART OF THE DECISION NO LONGER WILL BE FOLLOWED. SEE, IN SUCH CONNECTION, HOWEVER, THE ACT OF AUGUST 4, 1942, 56 STAT. 736, AUTHORIZING THE COMPUTATION OF SUBMARINE PAY FOR ENLISTED MEN, AS WELL AS OFFICERS, ON A PERCENTUM BASIS. SUCH PERCENTUM INCREASES ARE TO BE COMPUTED, OF COURSE, ON THEIR PAY AS INCREASED FOR SEA DUTY, AS EXPRESSLY PROVIDED IN SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, SIMILAR IN SUCH RESPECTS TO THE SAID ACT OF MARCH 7, 1942.

ACCORDINGLY, I HAVE TO ADVISE THAT THERE APPEARS NO BASIS FOR MODIFICATION OF THE ACTION OF THE AUDIT DIVISION OF THIS OFFICE REFERRED TO IN YOUR LETTER.