B-47265, JUNE 20, 1945, 24 COMP. GEN. 899

B-47265, JUNE 20, 1945, 24 COMP. GEN. 899

PAY - ADDITIONAL - DIVING DUTY - COMPUTATION FOR FRACTIONAL HOURS THE $5 PER HOUR ADDITIONAL PAY "FOR EACH HOUR OR FRACTION THEREOF" TO WHICH ARMY PERSONNEL ASSIGNED TO DIVING DUTY ARE ENTITLED UNDER THE ACT OF APRIL 10, 1943, WHEN EMPLOYED ON SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER 90 FEET, OR UNDER EXTRAORDINARY HAZARDOUS CONDITIONS, MAY BE COMPUTED ON THE BASIS OF EACH DIVE INDIVIDUALLY--- ANY RESULTING FRACTION OF AN HOUR IN EACH DIVE TO BE REGARDED AS ONE HOUR--- RATHER THAN ON THE BASIS OF THE TOTAL NUMBER OF HOURS AND ANY RESULTING FRACTION COVERED BY THE PAYMENT VOUCHER.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. MICHAEL UCHAL, U.S. ARMY, JUNE 20, 1945:

BY INDORSEMENT DATED JANUARY 19, 1945, OF THE FISCAL DIRECTOR, ARMY SERVICES FORCES, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF NOVEMBER 6, 1944, WITH ENCLOSURES, AS FOLLOWS:

1. REQUEST DECISION ON THE ATTACHED CLAIM FOR " ADDITIONAL PAY FOR DIVING DUTY" FOR THE OFFICER NAMED BELOW:

ST LT. JOSEPH A. ENOS O-1113191, 102ND PORT MARINE MAINTENANCE

CO., APO 562, CARE OF POSTMASTER, NEW YORK, N.Y.

2. PAR 2, AR-1485, STATES THAT: "PAYMENT WILL BE MADE TO OFFICERS * * * WHEN THE OFFICER IN CHARGE * * * FINDS THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, AT THE RATE OF $5.00 FOR EACH HOUR OR FRACTION THEREOF.' THE QUESTION AT ISSUE IS WHETHER "EACH HOUR OR FRACTION THEREOF" PERTAINS TO EACH DIVE CONSIDERED INDIVIDUALLY, OR IF IT SHOULD BE CONSTRUED TO MEAN THAT THE HOURS AND MINUTES OF THE SEVERAL DIVES PERFORMED DURING THE PERIOD COVERED BY THE VOUCHER BE TOTALED AND THE FRACTION EXISTING WHEN THE TOTAL IS REACHED, COUNTED AS AN EXTRA HOUR.

3. THE ATTACHED VOUCHER HAS BEEN PRESENTED TO ME FOR PAYMENT IN MY CAPACITY AS DISBURSING OFFICER.

THE SAID VOUCHER IS STATED IN THE AMOUNT OF $10, REPRESENTING THE DIFFERENCE BETWEEN DIVING PAY FOR 18 HOURS AND DIVING PAY FOR 16 HOURS FOR THE PERIOD AUGUST 24 TO 28, 1944. THE SCHEDULE FURNISHED IN SUPPORT OF THE VOUCHER DISCLOSES THAT DURING THE PERIOD INVOLVED LIEUTENANT ENOS PERFORMED FOUR DIVES, AS FOLLOWS:

CHART

DIVE NO. DATE LEFT SURFACE REACHED TIME PAID TIME DUE

SURFACE AS FOR 1. 24 AUG. 1944--- 2007 HRS--- 10140 HRS (25 5 HRS 33 MIN -- 6 HRS.

AUG 44). 2. 27 AUG. 1944--- 1402 HRS--- 1715 HRS--- 3 HRS 13 MIN-- 4 HRS. 3. 27 AUG. 1944--- 1935 HRS--- 2152 HRS--- 2 HRS 17 MIN-- 3 HRS. 28 AUG. 1944--- 1457 HRS--- 1905 HRS--- 4 HRS 108 MIN-- 5 HRS.

TOTAL TIME----------------------------- 15 HRS 11 MIN-- 18 HRS.

IT FURTHER APPEARS THAT BY VOUCHER NO. 1334, OF YOUR SEPTEMBER, 1944 ACCOUNTS, LIEUTENANT ENOS WAS PAID $80 FOR 16 HOURS (15 HOURS AND 11 MINUTES) DIVING DUTY, THE AGGREGATE TIME OF THE FOUR DIVES, AND THE INSTANT VOUCHER REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT PAID AND THE AMOUNT HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD PAYMENT BEEN COMPUTED ON EACH DIVE INDIVIDUALLY.

THE FISCAL DIRECTOR, IN HIS ENDORSEMENT, STATES:

2. IN ADDITION TO THE SPECIFIC QUESTION HEREIN PRESENTED, IT IS ALSO REQUESTED THAT DECISION BE MADE ON THE QUESTION OF WHETHER TWO OR MORE DIVES ON A SINGLE PROJECT SHOULD BE TREATED INDIVIDUALLY AND PAYMENT MADE FOR EACH DIVE ON THE BASIS OF $5.00 PER HOUR OR FRACTION THEREOF, OR WHETHER THE TIME REQUIRED FOR TWO OR MORE DIVES ON THE SAME PROJECT SHOULD BE COMBINED AND PAYMENT MADE FOR THE TOTAL NUMBER OF HOURS AND THE RESULTING FRACTION. SINCE THIS QUESTION WILL UNDOUBTEDLY ARISE, IT IS BELIEVED ADVISABLE TO SECURE A DECISION AT THIS TIME.

THE ACT OF APRIL 10, 1943, 57 STAT. 62, PROVIDES:

THAT ENLISTED MEN OF THE ARMY OF THE UNITED STATES ASSIGNED TO THE DUTY OF DIVING SHALL RECEIVE ADDITIONAL PAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR, AT THE RATE OF NOT LESS THAN $5 PER MONTH AND NOT EXCEEDING $30 PER MONTH; 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 WAR THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL RECEIVE, IN ADDITION TO THE FOREGOING, THE SUM OF $5 PER HOUR OR FRACTION THEREOF SO EMPLOYED.

THE LANGUAGE OF THE QUOTED ACT, ASIDE FROM INTERPOLATIONS NECESSARY FOR ITS APPLICATION TO THE ARMY, IS IDENTICAL WITH THE PERTINENT LANGUAGE CONTAINED IN THE ACT OF APRIL 9, 1928, 45 STAT. 412, AS AMENDED BY THE ACT OF AUGUST 4, 1942, 56 STAT. 736, PROVIDING LIKE BENEFITS FOR NAVAL PERSONNEL. THE PURPOSE THEREOF, AS DISCLOSED BY THE REPORT OF THE HEARING CONDUCTED THEREON, WAS TO PROVIDE EXACTLY THE SAME COMPENSATION FOR THE EXTRA HAZARDS INVOLVED IN DIVING OPERATIONS BY PERSONNEL OF THE ARMY AS PROVIDED BY THE SAID 1928 ACT, AS AMENDED, FOR SIMILAR DIVING OPERATIONS BY THE NAVY. SEE REPORT NO. 646 OF THE SENATE COMMITTEE ON MILITARY AFFAIRS AND REPORT NO. 306 OF THE HOUSE COMMITTEE ON MILITARY AFFAIRS ON S. 427, 78TH CONGRESS, WHICH SUBSEQUENTLY WAS ENACTED INTO LAW AS THE SAID ACT OF APRIL 10, 1943.

THE BASIS FOR COMPUTING ADDITIONAL PAY FOR DIVERS UNDER THE 1928 ACT WAS CONSIDERED BY THIS OFFICE IN CONNECTION WITH PROPOSED INSTRUCTIONS OF THE NAVY DEPARTMENT WHICH ADMINISTRATIVELY INTERPRETED SUCH PROVISO TO MEAN THAT EACH HOUR OR FRACTION THEREOF HAD REFERENCE TO EACH DIVE; HENCE, THAT A FRACTION OF AN HOUR IN AN INDIVIDUAL DIVE, UNDER THE CONDITIONS OF THE STATUTE, ENTITLED THE INDIVIDUAL TO PAYMENT AS FOR AN HOUR. SEE 7 COMP. GEN. 729, 731, SPECIFICALLY THE EXAMPLE OF COMPUTATION AT BOTTOM OF PAGE 730. ALSO, SEE ARTICLE 2143 3 (C) 3 (C), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL. THERE HAS BEEN FOUND NO PUBLISHED REGULATION OF THE NAVY DEPARTMENT SPECIFICALLY SETTING FORTH THE METHOD OF COMPUTING DIVING PAY WHEN MORE THAN ONE DIVE IN CONNECTION WITH SALVAGE OR REPAIR OPERATIONS IS PERFORMED ON THE SAME DAY. HOWEVER, IT HAS BEEN THE PRACTICE OF THAT DEPARTMENT--- NOT QUESTIONED BY THE ACCOUNTING OFFICERS--- TO TREAT EACH DIVE INDIVIDUALLY AND TO MAKE PAYMENT ON THAT BASIS. NO REASON IS APPARENT WHY THE SIMILARLY WORDED PROVISO CONTAINED IN THE ACT OF APRIL 10, 1943, SUPRA, SHOULD NOT BE SUBJECT TO THE SAME INTERPRETATION.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.