B-67195, FEBRUARY 6, 1948, 27 COMP. GEN. 432

B-67195, FEBRUARY 6, 1948, 27 COMP. GEN. 432

RENTAL ALLOWANCES - NAVY OFFICERS WITHOUT DEPENDENTS ENTITLED TO ADDITIONAL PAY FOR SEA DUTY NAVY OFFICERS, WITHOUT DEPENDENTS, WHO, WHILE ON SEA DUTY FOR PERIODS EXCEEDING THREE MONTHS, ARE ENTITLED TO THE PERCENTAGE INCREASE IN PAY AUTHORIZED FOR SEA DUTY BY SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, MAY NOT BE REGARDED AS ENTITLED TO RECEIVE CONCURRENTLY THE RENTAL ALLOWANCES PROVIDED BY SECTION 6 OF THE ACT FOR OFFICERS, HAVING NO DEPENDENTS, DURING TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, NOTWITHSTANDING THE HOLDING IN SCHUH V. UNITED STATES, 107 C.1CLS. 88.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 6, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 9, 1947, WITH ENCLOSURES, RELATIVE TO THE RIGHT OF LIEUTENANT (JG) EDWARD J. SCHALK, UNITED STATES NAVAL RESERVE, AND OTHER OFFICERS WITHOUT DEPENDENTS WHO ARE SIMILARLY SITUATED, TO PAYMENTS OF RENTAL ALLOWANCE FOR PERIODS DURING WHICH THEY ARE ENTITLED TO SEA DUTY PAY UNDER CURRENT NAVY DEPARTMENT DIRECTIVES. YOU STATE THAT UNDER SUCH DIRECTIVES, LIEUTENANT (JG) SCHALK, WHILE ATTACHED TO A FLEET AVIATION UNIT BASED ASHORE, IS ENTITLED TO CREDIT OF THE PERCENTAGE INCREASE IN PAY AUTHORIZED FOR SEA DUTY BUT IS NOT ENTITLED TO CREDIT OF RENTAL ALLOWANCE IN HIS OWN RIGHT. YOU REFER TO THE CASE OF SCHUH V. UNITED STATES, 107 C.1CLS. 88, DECIDED BY THE COURT OF CLAIMS OF THE UNITED STATES ON OCTOBER 7, 1946 (C.1CLS. NO. 46381), AND YOU REQUEST A DECISION---

* * * AS TO WHETHER THE RULING OF THE COURT OF CLAIMS IN THE CASE OF SCHUH, SUPRA, WILL BE ACCEPTED BY THE COMPTROLLER GENERAL OF THE UNITED STATES AS A BASIS FOR DISBURSING OFFICERS OF THE NAVY MAKING CONCURRENT CREDIT OF PERCENTAGE INCREASES IN PAY FOR SEA DUTY AND RENTAL ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS IN THE CASE OF LIEUTENANT (JG) SCHALK AND OTHER OFFICERS SIMILARLY SITUATED.

THE OPINION OF THE COURT OF CLAIMS IN THE SCHUH CASE IS AS FOLLOWS:

THE PLAINTIFF HERE SUES FOR RENTAL ALLOWANCES WHICH HE SAYS WERE DUE HIM AS AN OFFICER OF THE UNITED STATES COAST GUARD PERFORMING THE DUTIES OF AN AVIATOR ENGAGED IN ANTISUBMARINE WARFARE IN THE GULF OF MEXICO.

HIS PLANES WERE LAND-BASED AND HE HAD CERTAIN DUTIES TO PERFORM ON SHORE, BUT THE SHORE DUTIES WERE MERELY INCIDENTAL TO HIS DUTIES IN COMBAT, AND HIS COMBAT DUTIES WERE PARAMOUNT.

THIS OFFICER RECEIVED AN INCREASE IN PAY ON THE GROUND THAT HE WAS PERFORMING SEA DUTY AS SUCH DUTY WAS DEFINED BY THE HEAD OF HIS DEPARTMENT. THE HEAD OF HIS DEPARTMENT DID DEFINE HIS DUTY AS SEA DUTY. THIS DEFINITION WAS AUTHORIZED BY THE PAY READJUSTMENT ACT OF 1942, AND THE DETERMINATION OF THE HEAD OF THE DEPARTMENT WAS FINAL. THERE ARE NO GROUNDS UPON WHICH ITS FINALITY MAY BE QUESTIONED. FLYING OVER THE WATERS TO TRACK DOWN ENEMY SUBMARINES NAVIGATING UNDER THE WATERS, OR SURFACING, IS SEA DUTY OF A DECIDED NATURE.

BUT THIS SAME PAY ACT PROVIDED THAT " NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY," AND THAT REGULATIONS IN EXECUTION OF THIS SECTION SHALL BE MADE BY THE PRESIDENT.

THE PRESIDENT PROCEEDED TO MAKE THESE REGULATIONS, AND THEREIN DEFINED SEA DUTY AS RESPECTS RENTAL ALLOWANCES AS FOLLOWS: " THE TERM "SEA DUTY" SHALL MEAN SERVICE AT SEA BY AN OFFICER ON A VESSEL UNDER ORDERS," ETC.

NOW THE PLAINTIFF WAS NOT PERFORMING SERVICE AT SEA ON BOARD A VESSEL, AND THEREFORE AS REGARDS RENTAL ALLOWANCE WAS NOT ON SEA DUTY.

THERE IS NO INCONSISTENCY WHATEVER BETWEEN THE DEFINITION GIVEN BY THE PRESIDENT AND THAT GIVEN BY THE HEAD OF THE DEPARTMENT.

" SEA DUTY" IS NOT A SELF-DEFINING TERM AND NEITHER THE PRESIDENT NOR THE HEAD OF THE DEPARTMENT WAS DEFINING IT IN A UNIVERSAL SENSE. THEIR DEFINITIONS WERE IN AUTHORIZED AID OF SEPARATE STATUTORY PROVISIONS. ONE DEFINITION WAS DIRECTED TO THE HOUSING OF AN OFFICER, THE OTHER TO THE HAZARDOUS NATURE OF HIS DUTIES.

WE HAVE NO OCCASION FOR INQUIRING INTO THE VALIDITY OF THESE DEFINITIONS. THEIR APPLICATION, WE THINK, IS OBVIOUS.

THE PLAINTIFF IS ENTITLED TO RECOVER. JUDGMENT WILL BE ENTERED FOR HIM IN THE SUM OF $465, AND IT IS SO ORDERED.

IT LONG HAS BEEN ESTABLISHED THAT WHILE THE ACCOUNTING OFFICERS OF THE GOVERNMENT WILL GIVE SERIOUS CONSIDERATION TO THE DECISIONS OF THE COURT OF CLAIMS, THEY ARE NOT REQUIRED TO FOLLOW SUCH DECISIONS AS PRECEDENTS EXCEPT AS THEY ARE DEEMED TO BE CORRECT EXPOSITIONS OF THE LAW WITH RESPECT TO MATTERS COMING BEFORE THEM INVOLVING THE EXPENDITURE OF APPROPRIATIONS BY THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. SEE 31 U.S.C. 74; 14 COMP. GEN. 648.

SECTION 2 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 360, AS AMENDED, 37 U.S.C. SUPP. V, 102, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * 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 * * *.

THE FOURTH AND FIFTH PARAGRAPHS OF SECTION 6 OF THE SAID 1942 ACT AS ORIGINALLY ENACTED, 56 STAT. 361, 362, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD OR SEA DUTY, NOR SHALL ANY RENTAL ALLOWANCES 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 * * *.

REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE, IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED, INCLUDING ADJUNCT FORCES THEREOF.

BY THE ACT OF MARCH 6, 1943, 57 STAT. 13, THE ABOVE-QUOTED FOURTH PARAGRAPH BY SECTION 6 WAS AMENDED TO READ, IN PERTINENT PART, AS FOLLOWS:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER HAVING NO DEPENDENTS WHILE HE IS ON FIELD DUTY UNLESS HIS COMMANDING OFFICER CERTIFIES THAT HE WAS NECESSARILY REQUIRED TO PROCURE QUARTERS AT HIS OWN EXPENSE, OR WHILE ON SEA DUTY, EXCEPT FOR TEMPORARY PERIODS OF SEA DUTY NOT EXCEEDING THREE MONTHS, 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 OCCUPIED BECAUSE OF BEING INADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS, IF ANY, AND SUCH CERTIFICATIONS SHALL BE CONCLUSIVE * * *.

IN TWO DECISIONS RENDERED PRIOR TO SUCH AMENDMENT OF MARCH 6, 1943, I.E., DECISION OF SEPTEMBER 30, 1942, 22 COMP. GEN. 289, AND DECISION OF NOVEMBER 14, 1942, 22 COMP. GEN. 467, THIS OFFICE HELD THAT SECTIONS 2 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, DID NOT AUTHORIZE CONCURRENT CREDITS OF RENTAL ALLOWANCE AND SEA DUTY PAY TO AN OFFICER WITHOUT DEPENDENTS. THAT IS, THIS OFFICE TOOK THE VIEW THAT AN OFFICER MAY NOT BE CONSIDERED AS ON SEA DUTY FOR THE PURPOSE OF ENTITLEMENT TO SEA DUTY PAY AND, DURING THE SAME PERIOD, BE CONSIDERED AS NOT ON SEA DUTY FOR THE PURPOSE OF ENTITLEMENT TO RENTAL ALLOWANCE, IT HAVING BEEN STATED IN 22 COMP. GEN. 467, 469 THAT:

* * * WHETHER PARTICULAR DUTY IS SEA DUTY IS A QUESTION OF FACT ( UNITED STATES V. ENGARD, 196 U.S. 511; MCGOWAN V. UNITED STATES, 36 C.1CLS. 63); AND WHILE THIS OFFICE ORDINARILY WOULD NOT BE REQUIRED TO QUESTION A REASONABLY SUPPORTED DETERMINATION BY THE DEPARTMENT PURSUANT TO THE EXECUTIVE REGULATIONS THAT BY REASON OF AN OFFICER'S PARAMOUNT DUTIES ASHORE HE IS NOT ON SEA DUTY AND,THEREFORE, IS NOT PRECLUDED ON THAT ACCOUNT FROM RECEIVING RENTAL ALLOWANCE, SUCH A DETERMINATION WOULD SEEM SENSIBLY TO PRECLUDE A CONCURRENT DETERMINATION THAT HE IS ON SEA DUTY, AND, THEREFORE, ENTITLED TO SEA DUTY PAY. WHILE TWO DIFFERENT SECTIONS OF THE STATUTE ARE INVOLVED AND THE PURPOSE OF THE ALLOWANCES MAY NOT BE MUTUALLY EXCLUSIVE, A LEGISLATIVE INTENT THAT BOTH MAY BE PAID AT THE SAME TIME IS NOT SUFFICIENTLY SHOWN TO JUSTIFY THE ANOMALY OF REGARDING AN OFFICER AS ON SEA DUTY UNDER SECTION 2 OF THE STATUTE BUT AS NOT ON SEA DUTY UNDER SECTION 6 OF THE SAME STATUTE; AND, IN THE ABSENCE OF A MORE CLEAR EXPRESSION OF THE WILL OF THE CONGRESS ON THE MATTER, THE CONCLUSION APPEARS REQUIRED THAT BOTH ALLOWANCES ARE NOT AUTHORIZED TO BE PAID CONCURRENTLY ON THE BASIS OF SUCH INCONSISTENT DETERMINATIONS. HOWEVER, IN VIEW OF THE EXECUTIVE REGULATIONS AND THE ESTABLISHED PRACTICE PURSUANT TO THE LIKE PROVISIONS OF PRIOR EXECUTIVE REGULATIONS IN SUCH RESPECT, THE PAYMENT OF RENTAL ALLOWANCE WOULD APPEAR TO BE WARRANTED IN SUCH CASES TO THE EXCLUSION OF THE SEA DUTY PAY. THAT IS, WHERE THERE IS A REASONABLE DETERMINATION PURSUANT TO THE EXECUTIVE REGULATIONS THAT AN OFFICER'S SHORE DUTY IS PARAMOUNT AND, THEREFORE, THAT HE IS NOT ON SEA DUTY, HE MAY CONTINUE IN RECEIPT OF RENTAL ALLOWANCE, AS HERETOFORE, BUT MAY NOT FOR THE SAME PERIOD BE CREDITED WITH EXTRA PAY AS ON SEA DUTY.

IN DECISION OF THIS OFFICE DATED JANUARY 3, 1947, 26 COMP. GEN. 447, WHICH WAS RENDERED AFTER THE DATE OF THE AMENDATORY STATUTE OF MARCH 6, 1943, SUPRA, AND AFTER THE DATE OF THE DECISION OF THE COURT OF CLAIMS IN THE SCHUH CASE, AND WHICH ADHERED TO THE VIEWS EXPRESSED IN 22 COMP. GEN. 467, SUPRA, IT WAS STATED THAT:

IN DECISION OF NOVEMBER 14, 1942, 22 COMP. GEN. 467, IT WAS HELD THAT, IN THE ABSENCE OF A CLEAR EXPRESSION OF THE WILL OF THE CONGRESS IN THE MATTER, THIS OFFICE WOULD NOT BE WARRANTED IN ASSUMING A LEGISLATIVE INTENT TO CREATE THE ANOMALY OF REGARDING AN OFFICER AS ON SEA DUTY FOR THE PURPOSES OF SECTION 2 OF THE ACT, BUT AS NOT ON SEA DUTY FOR THE PURPOSES OF SECTION 6 THEREOF. THE NAVY DEPARTMENT SUBSEQUENTLY SECURED LEGISLATION TO OVERCOME THE EFFECT OF THAT DECISION, BUT ONLY TO THE EXTENT OF AUTHORIZING THE EXISTENCE OF SUCH A DUAL STATUS WHEN THE OFFICER WAS ON SEA DUTY FOR TEMPORARY PERIODS OF NOT EXCEEDING THREE MONTHS. SEE THE ACT OF MARCH 6, 1943, 57 STAT. 13, AND THE LEGISLATIVE HISTORY THEREOF. THUS, SINCE THE EFFECT OF THE DECISION OF NOVEMBER 14, 1942, SUPRA, WAS BROUGHT TO THE ATTENTION OF THE CONGRESS AND EXCEPTION WAS MADE ONLY TO THE EXTENT NOTED ABOVE, IT WOULD APPEAR THAT THE RULE LAID DOWN IN SAID DECISION, AND UNIFORMLY APPLIED THEREAFTER, PROPERLY REFLECTS THE LEGISLATIVE INTENT IN THE MATTER. THERE HAS NOT BEEN OVERLOOKED IN THIS CONNECTION THE RECENT OPINION OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASE OF SCHUH V. UNITED STATES, C.1CLS. NO. 46381.

THE COURT OF CLAIMS, IN HOLDING THAT SCHUH WAS NOT ON SEA DUTY FOR RENTAL ALLOWANCE PURPOSES, APPARENTLY OVERLOOKED THE PROPOSITION THAT IF SUCH OFFICER WAS NOT ON SEA DUTY HE THEN MUST HAVE BEEN ON FIELD DUTY (22 COMP. GEN. 420) AND, HENCE, AS AN OFFICER WITHOUT DEPENDENTS, NOT ENTITLED TO RENTAL ALLOWANCE IN ANY EVENT UNDER THE LAW IN EFFECT PRIOR TO THE ENACTMENT OF THE AMENDATORY ACT OF MARCH 6, 1943, SUPRA.

MOREOVER, THE COURT APPEARS NOT TO HAVE GIVEN CONSIDERATION TO THE POINT THAT WHILE SECTION 2, SUPRA, EXPRESSLY AUTHORIZES THE HEAD OF THE DEPARTMENT CONCERNED CONCLUSIVELY TO DEFINE SEA DUTY, SECTION 6 DOES NOT PROVIDE THAT THE PRESIDENT SHALL HAVE SIMILAR AUTHORITY TO ISSUE A CONCLUSIVE DEFINITION OF SEA DUTY BUT MERELY CONFERS GENERAL AUTHORITY TO MAKE REGULATIONS "IN EXECUTION OF THE PROVISIONS OF THIS SECTION.'

IT WILL BE NOTED, ALSO, THAT THE COURT DID NOT REFER TO ANY OF ITS PREVIOUS DECISIONS, OR ANY COURT DECISION, TENDING TO SUPPORT ITS HOLDING IN THE SCHUH CASE THAT AN OFFICER MIGHT BE ON SEA DUTY FOR THE PURPOSE OF COLLECTING THE INCREASE IN PAY PROVIDED FOR SEA DUTY, AND, AT THE SAME TIME, ON SHORE DUTY FOR THE PURPOSE OF COLLECTING THE RENTAL ALLOWANCE WHICH WAS EXPRESSLY FORBIDDEN BY STATUTE TO OFFICERS WITHOUT DEPENDENTS WHO WERE ON SEA DUTY. IN NUMEROUS DECISIONS OF THE COURT INVOLVING EARLIER STATUTORY PROVISIONS IT WAS RECOGNIZED THAT AN OFFICER MAY BE REQUIRED TO DISCHARGE DUTIES AT SEA AND DUTIES ON SHORE DURING THE SAME PERIOD AND IT WAS HELD THAT WHEN THE DUTY TO WHICH AN OFFICER IS ASSIGNED PARTAKES OF SEA SERVICE AND SHORE DUTY AND THERE IS A PREPONDERANCE IN FAVOR OF EITHER SERVICE, THE SERVICE HAVING THE PARAMOUNT CHARACTER MUST CONSTITUTE THE BASIS ON WHICH TO PREDICATE THE RIGHT TO PAYMENT. SEE MCGOWAN V. UNITED STATES, 36 C.1CLS. 63, 70; TAUSSIG V. UNITED STATES, 38 C.1CLS. 104, 113; AND DOYLE V. UNITED STATES, 46 C.1CLS. 181, 187.

THE AMOUNT OF THE JUDGMENT GIVEN THE PLAINTIFF IN THE SCHUH CASE ($465) APPARENTLY REPRESENTS PAYMENT FOR 6-6/30 MONTHS AT $75 PER MONTH FOR RENTAL ALLOWANCE, AS CLAIMED, FOR THE PERIOD SEPTEMBER 1, 1942, TO MARCH 6, 1943, BOTH DATES INCLUSIVE, AND IT WILL BE NOTED THAT WHILE THE LAST DAY OF SUCH PERIOD IS THE SAME DATE AS THE DATE OF APPROVAL (AND THE EFFECTIVE DATE) OF THE AMENDATORY ACT OF MARCH 6, 1943, SUPRA, THE COURT TOOK NO NOTICE OF SUCH AMENDATORY ACT IN ITS OPINION AND NO MENTION OF SUCH ACT IS MADE IN THE REPORTER'S STATEMENT OF THE CASE (107 C.1CLS. 88- 90).

FOR SUCH REASONS, I AM CONSTRAINED TO ADHERE TO THE VIEWS EXPRESSED IN DECISION OF JANUARY 3, 1947, 27 COMP. GEN. 447, SUPRA, AND THE EARLIER DECISIONS OF THIS OFFICE CITED ABOVE, NOTWITHSTANDING THE DECISION OF THE COURT OF CLAIMS IN THE SCHUH CASE, PARTICULARLY SINCE THE COURT DECIDED THAT CASE WITHOUT REFERENCE TO THE ACT OF MARCH 6, 1943, SUPRA, WHICH ACT MADE IMPORTANT CHANGES IN THE APPLICABLE STATUTORY PROVISIONS.