B-168742 L/M, APR 30, 1970

B-168742 L/M, APR 30, 1970

OFFICE OF GENERAL COUNSEL

CHIEF, CASUALTY AND RELIEF DIVISION, AIR FORCE ACCOUNTING AND FINANCE CENTER:

WE REFER TO YOUR LETTER OF DECEMBER 4, 1969 (ESC), TO OUR CLAIMS DIVISION; SUBJECT: ENTITLEMENT TO PROFICIENCY PAY - MISSING IN ACTION MEMBERS. ATTACHED TO THE LETTER ARE AF FORMS 1098, PERTAINING TO SEVEN MISSING IN ACTION OR CAPTURED ENLISTED PERSONNEL, WHICH HAD BEEN FORWARDED TO YOUR OFFICE BY THE UNITED STATES AIR FORCE MILITARY PERSONNEL CENTER, RANDOLPH AFB, TEXAS, REQUESTING THAT THE PAY ACCOUNTS OF SUCH PERSONNEL BE ADJUSTED IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED IN SECTION 1 OF EACH FORM.

ALSO ATTACHED TO YOUR LETTER ARE VOUCHERS (STANDARD FORM 1034) PROPOSING SPECIAL PAYMENTS TO WIFE OR PARENT OF EACH OF SIX OF THE SEVEN MISSING OR CAPTURED MEMBERS. EACH VOUCHER IS "FOR RETROACTIVE PROFICIENCY PAY DUE MEMBER" AT THE RATE AND FOR THE RETROACTIVE PERIOD INDICATED. EACH RETROACTIVE PERIOD BEGINS ON A DATE IN 1967 AND ENDS IN NOVEMBER 1969. THE SEVEN MEMBERS ARE: SERGEANT STEPHEN H. ADAMS; SERGEANT ARTHUR N. BLACK; TECHNICAL SERGEANT ARTHUR CORMIER; STAFF SERGEANT DEAN A. DUVALL; STAFF SERGEANT ANDRE R. GUILLET; SERGEANT KENNETH D. MCKENNEY; AND TECHNICAL SERGEANT MARSHALL I. PAULEY. YOU STATE THAT NO VOUCHER HAS BEEN PREPARED IN THE CASE OF SERGEANT ADAMS BECAUSE NO ONE HAS BEEN DESIGNATED TO RECEIVE HIS UNALLOTTED PAY.

THE SECOND PARAGRAPH OF YOUR LETTER IS AS FOLLOWS:

"2. PARA 6F(5), AFR 39-45, PROVIDES THAT IF AN AIRMAN ATTAINS ELIGIBILITY DURING A MISSING STATUS, 'A PROFICIENCY RATING OR RATE INCREASE MAY BE INITIATED.' NOTE 5, TABLE 1-8-2, DODPM, STATES THAT 'PROFICIENCY PAY MAY BE AWARDED, WITHDRAWN, INCREASED OR DECREASED WHILE MEMBER, OTHERWISE ELIGIBLE, IS IN A PATIENT OR MISSING STATUS.' PARA 7A, AFR 39-45, PROVIDES THAT 'PROFICIENCY RATINGS MAY NOT BE ASSIGNED RETROACTIVELY', AND PARA 10811, DODPM, STATES 'PROFICIENCY PAY STARTS ON THE DATE THE AWARD IS MADE UNLESS A LATER DATE IS SPECIFIED. AWARDS MAY NOT BE MADE RETROACTIVELY.'"

YOU STATE THAT YOU FIND ELIGIBILITY FOR PROFICIENCY PAY IN THE ATTACHED CASES QUESTIONABLE FOR REASONS SET FORTH IN YOUR LETTER AS FOLLOWS:

"A. ALL OF THE CASES PROVIDE FOR RETROACTIVE PAYMENT OF PROFICIENCY PAY. AS NOTED ABOVE, THE APPLICABLE REGULATION AND THE DODPM PROHIBIT SUCH RETROACTIVE PAYMENT.

"B. PARA 6C, AFR 39-45, PROVIDES THAT 'CONTINUATION OF PROFICIENCY PAY IS CONTINGENT UPON CONTINUED QUALIFICATION AND SATISFACTORY PERFORMANCE IN THE DESIGNATED SPECIALTY.' IT IS DIFFICULT TO PERCEIVE HOW A MEMBER IN A MISSING STATUS CAN ACHIEVE THIS PERFORMANCE REQUIREMENT.

"C. IN TWO OF THE CASES (ADAMS AND BLACK) THE 'REMARKS' SECTION OF THE FORM 1098 STATES THAT THE MEMBER 'WOULD HAVE ACQUIRED THE 5 SKILL LEVEL PREREQUISITE UNDER NORMAL CIRCUMSTANCES.' IN OUR OPINION THE HYPOTHETICAL NATURE OF THIS FINDING CASTS DOUBT ON THE MEMBER'S ELIGIBILITY FOR PROFICIENCY PAY.

"D. IN THREE CASES (DUVALL, GUILLET, AND MCKENNEY) THE 'REMARKS SECTION INDICATES THAT THE MEMBER 'COMPLETED 4 YEARS ACTIVE SERVICE' AS OF A CERTAIN DATE, AND PROFICIENCY PAY IS AWARDED AS OF THE FOLLOWING DAY. APPARENTLY THIS ACTION IS TAKEN TO MEET THE REQUIREMENTS OF PARA 5F, AFR 39-45, WHICH PROVIDES THAT THE MEMBER IS ELIGIBLE FOR PROFICIENCY PAY ONLY IF HE 'IS ON SECOND OR SUBSEQUENT TERM OF ACTIVE DUTY ENLISTED SERVICE OR IS A FIRST TERM AIRMAN WHO IS SERVING IN AN ENLISTMENT, AS EXTENDED, OR AN EXTENSION OF ENLISTMENT THAT WILL TOTAL SIX OR MORE YEARS OF ACTIVE SERVICE.' THE ASSUMPTION THAT THE MEMBER WILL REENLIST OR EXTEND IS, IN OUR OPINION, TOO DOUBTFUL TO PERMIT PAYMENT OF PROFICIENCY PAY TO SUCH MEMBERS."

FINALLY YOU STATE THAT, IN VIEW OF THE DOUBTFUL ASPECTS AND SINCE MORE CASES OF THIS NATURE MAY ARISE IN THE FUTURE, YOU ARE SUBMITTING THE ATTACHED CASES FOR OUR EXAMINATION AND ADVICE AS TO THE PROPRIETY OF PAYMENT. YOU REQUEST THAT THE VOUCHERS BE RETURNED TO YOUR OFFICE FOR SETTLEMENT, IF APPROPRIATE.

AS YOU KNOW, THE PROVISIONS OF CHAPTER 10 (SECTIONS 551 TO 558), TITLE 37, U.S.C. RELATING TO ENTITLEMENTS, ETC. OF PERSONS IN A MISSING (INCLUDING CAPTURED) STATUS, AUTHORIZE THE SECRETARY CONCERNED, OR HIS DESIGNEE, TO "DETERMINE THE ENTITLEMENT OF A MEMBER TO PAY AND ALLOWANCES UNDER THIS CHAPTER, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND THAT DETERMINATION IS CONCLUSIVE." HENCE, THIS OFFICE MAY NOT UNDERTAKE TO GIVE AN AUTHORITATIVE DECISION AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHERS YOU HAVE SUBMITTED BUT WE WILL, AS REQUESTED, OFFER SOME ADVICE WITH RESPECT TO THE PROPOSED PAYMENTS.

THE VIEWS WE EXPRESS HEREINAFTER ARE BASED ON THE ASSUMPTION THAT THERE HAS BEEN NO AUTHORITATIVE DETERMINATION BY THE SECRETARY OF THE AIR FORCE OR HIS DESIGNEE UNDER CHAPTER 10, SUPRA, WITH RESPECT TO THE PROFICIENCY PAY HERE INVOLVED.

WE AGREE WITH THE VIEW YOU HAVE INDICATED THAT THE REGULATIONS APPLICABLE TO PROFICIENCY PAY CONTEMPLATE THAT NO RETROACTIVE PAYMENT OF SUCH PAY WILL BE MADE. SEE B-168863, FEBRUARY 17, 1970, 49 COMP. GEN. , COPY ENCLOSED.

WE ALSO AGREE WITH YOUR VIEWS AS INDICATED IN THE PARAGRAPHS

FROM YOUR LETTER UNDER C AND D, ABOVE. HOWEVER, WITH RESPECT

VIEWS INDICATED IN PARAGRAPH B, QUOTED ABOVE, IT IS OUR OPINION THAT A MEMBER IN A MISSING STATUS WHO IS OTHERWISE ENTITLED TO PROFICIENCY PAY SHOULD NOT BE BARRED FROM HAVING SUCH PAY CREDITED TO HIS ACCOUNT BECAUSE HIS ABSENCE IN A MISSING STATUS PREVENTS HIM FROM RENDERING "SATISFACTORY PERFORMANCE IN THE DESIGNATED SPECIALTY."

THE VOUCHER AND OTHER ATTACHMENTS RECEIVED WITH YOUR LETTER ARE RETURNED FOR SUCH USE OR DISPOSITION AS MAY BE APPROPRIATE.