B-52455, JANUARY 11, 1946, 25 COMP. GEN. 520

B-52455, JANUARY 11, 1946, 25 COMP. GEN. 520

PAY - ADDITIONAL - DIVING DUTY - INCLUSION OF TIME SPENT IN DECOMPRESSION CHAMBER THE PROVISIONS OF THE ACT OF APRIL 9, 1928, AS AMENDED, AUTHORIZING $5 PER HOUR ADDITIONAL PAY TO NAVY PERSONNEL ASSIGNED TO DIVING EMPLOYED "IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET" OR WHERE EXTRAORDINARY HAZARDS EXIST--- WHICH PROVISIONS HAVE REFERENCE ONLY TO THE TIME OF EACH DIVE--- MAY NOT BE REGARDED AS AUTHORIZING THE CONTINUANCE OF SUCH ADDITIONAL PAY FOR THE TIME REQUIRED TO BE SPENT IN A DECOMPRESSION CHAMBER AFTER COMPLETION OF DIVES IN ORDER TO PREVENT OR TO RELIEVE ATTACKS OF CAISSON DISEASE ("BENDS") RESULTING FROM THAT DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 11, 1945, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION THE QUESTION AS TO THE RIGHT OF AN ENLISTED MAN TO RECEIVE ADDITIONAL PAY AT THE RATE OF $5 PER HOUR OR FRACTION THEREOF FOR TIME SPENT IN A DECOMPRESSION CHAMBER AS A RESULT OF DIVING.

IN THE CASE AT HAND THE ENLISTED MAN CONTRACTED CAISSON DISEASE, OR SO- CALLED "BENDS," WHILE EMPLOYED AS A DIVER IN ACTUAL SALVAGE OPERATIONS AT A DEPTH OF NINETY-EIGHT FEET FOR A PERIOD OF ONE HOUR AND FIFTY-EIGHT MINUTES. FOLLOWING THIS DIVE HE WAS TREATED IN A DECOMPRESSION CHAMBER FOR A PERIOD OF FOUR HOURS AND THIRTY-FIVE MINUTES. A RECURRENCE OF THE "BENDS" HAVING OCCURRED AFTER HE HAD BEEN IN THE DECOMPRESSION CHAMBER FOR FOUR HOURS AND THIRTY-FIVE MINUTES, IMMEDIATE FURTHER TREATMENT IN THE DECOMPRESSION CHAMBER WAS NECESSARY FOR A PERIOD OF EIGHTEEN HOURS AND FORTY-EIGHT MINUTES.

THE MAN HAS RECEIVED ADDITIONAL PAY COVERING THE PERIOD OF ONE HOUR AND FIFTY-EIGHT MINUTES AND NOW REQUESTS ADDITIONAL PAY FOR DIVING COVERING THE TWENTY-THREE HOURS AND TWENTY-THREE MINUTES SPENT BY HIM IN THE DECOMPRESSION CHAMBER.

THE ACT APPROVED 9 APRIL 1928 (45 STAT. 412), AS AMENDED AND CODIFIED IN 34 U.S.C. 886, SUPP. IV, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * AND AN ENLISTED MAN OF THE NAVY ASSIGNED TO THE DUTY OF DIVING SHALL RECEIVE ADDITIONAL PAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH, IN ADDITIONAL TO THE PAY AND ALLOWANCES OF HIS RATING AND SERVICE: PROVIDED, THAT OFFICERS AND ENLISTED MEN EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET, OR IN DEPTHS OF LESS THAN NINETY FEET WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND IN ACCORDANCE WITH INSTRUCTIONS PRESCRIBED BY THE SECRETARY OF THE NAVY THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO THE FOREGOING, RECEIVE THE SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF SO EMPLOYED.'

PAYMENT OF ADDITIONAL COMPENSATION TO PERSONNEL EMPLOYED AS DIVERS IN ACTUAL SALVAGE OPERATIONS IS INTENDED TO COMPENSATE SUCH PERSONNEL FOR THE HAZARDOUS DUTY PERFORMED. IN THE PRESENT CASE THE DIVE WAS PERFORMED IN CONNECTION WITH THE SALVAGE OF LOST TORPEDOES. THE FACT THAT THE ENLISTED MAN CONCERNED WAS REQUIRED TO SPEND TWENTY-THREE HOURS AND TWENTY-THREE MINUTES TIME IN A DECOMPRESSION CHAMBER, FOLLOWING A DIVE LASTING ONE HOUR AND FIFTY-EIGHT MINUTES, IN ORDER TO RESTORE HIM TO A PHYSICAL CONDITION THAT APPROXIMATED HIS NORMAL PHYSICAL CONDITION PRIOR TO PERFORMANCE OF THE DIVE, RAISES THE QUESTION AS TO WHETHER OR NOT DURING SUCH PERIOD HE MAY BE CONSIDERED AS HAVING BEEN EMPLOYED "IN ACTUAL SALVAGE * * * OPERATIONS IN DEPTHS OF OVER NINETY FEET" WITHIN THE MEANING OF THE ABOVE QUOTED LAW SO AS TO ENTITLE HIM TO PAYMENT OF ADDITIONAL COMPENSATION AT THE RATE OF $5 PER HOUR OR FRACTION THEREOF FOR TIME SPENT IN THE DECOMPRESSION CHAMBER.

YOUR DECISION IN THIS MATTER IS REQUESTED.

IT WILL BE NOTED THAT THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED, 34 U.S.C. 886, THE PERTINENT PART OF WHICH IS QUOTED IN YOUR LETTER, EXPRESSLY PROVIDES THAT ENLISTED MEN "EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET" SHALL RECEIVE THE ADDITIONAL SUM OF $5 PER HOUR FOR EACH HOUR OR FRACTION THEREOF "SO EMPLOYED," THAT IS, THE ADDITIONAL AMOUNT AUTHORIZED THEREIN IS PAYABLE ONLY FOR PERIODS DURING WHICH THE ENLISTED MEN ARE EMPLOYED AS DIVERS "IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET" OR WHERE EXTRAORDINARY HAZARDS EXIST. WHILE DIVERS MAY BE REQUIRED TO SPEND VARYING PERIODS OF TIME IN A DECOMPRESSION CHAMBER AFTER COMPLETION OF THEIR DIVES TO PREVENT OR TO RELIEVE ATTACKS OF CAISSON DISEASE OR "BENDS" RESULTING FROM THAT DUTY, THERE APPEARS TO BE NO SUBSTANTIAL BASIS FOR A CONCLUSION THAT DURING SUCH PERIODS THEY ARE "EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS" WITHIN THE MEANING OF THE STATUTE SO AS TO ENTITLE THEM TO A CONTINUATION OF THE ADDITIONAL PAY OF $5 PER HOUR AUTHORIZED ON ACCOUNT OF THE EXTRAORDINARY HAZARDS INVOLVED I ACTUAL OPERATIONS UNDER THE SPECIFIED CONDITIONS. ON THE CONTRARY, THE PROVISIONS OF THE STATUTE IN THAT RESPECT HAVE BEEN REGARDED AND APPLIED SINCE ENACTMENT AS HAVING REFERENCE TO THE TIME OF EACH DIVE. SEE 7 COMP. GEN. 729, EXAMPLE AT BOTTOM OF PAGE 730. COMPARE 24 COMP. GEN. 899.

ACCORDINGLY, THE SPECIFIC QUESTION PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE.