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B-158185, JAN. 25, 1966, 45 COMP. GEN. 451

B-158185 Jan 25, 1966
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PAY - ADDITIONAL - PARACHUTE DUTY - JUMP REQUIREMENTS WAIVER WHEN MEMBERS OF THE UNIFORMED SERVICES IN A PARACHUTE DUTY STATUS ARE ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA AS DESCRIBED IN 37 U.S.C. 310. IS RETROACTIVELY EFFECTIVE TO THE DATE CONTEMPLATED BY THE STATUTE. 1966: REFERENCE IS MADE TO LETTER OF DECEMBER 10. FOR WHICH PERFORMANCE REQUIREMENTS WERE APPROPRIATELY DEFERRED UNDER AUTHORITY OF SECTION 108 (C) PRIOR TO AMENDMENT. INCENTIVE PAY FOR HAZARDOUS DUTY "INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" IS PRESCRIBING IN SECTION 301 (A) (6). THE PRESIDENTIAL REGULATIONS CURRENTLY GOVERNING THE PAYMENT OF INCENTIVE PAY FOR PARACHUTE DUTY ARE SET FORTH IN SECTION 108 OF EXECUTIVE ORDER NO. 11157.

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B-158185, JAN. 25, 1966, 45 COMP. GEN. 451

PAY - ADDITIONAL - PARACHUTE DUTY - JUMP REQUIREMENTS WAIVER WHEN MEMBERS OF THE UNIFORMED SERVICES IN A PARACHUTE DUTY STATUS ARE ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA AS DESCRIBED IN 37 U.S.C. 310, THE AUTHORITY IN SECTION 108 (C) OF EXECUTIVE ORDER NO. 11259 TO WAIVE MINIMUM PARACHUTE JUMP REQUIREMENTS--- THE DECEMBER 3, 1965 AMENDMENT TO EXECUTIVE ORDER NO. 11157 PROVIDING INCENTIVE PAY FOR PARACHUTE DUTY AND PERFORMANCE DEFERMENT--- MAY BE EXTENDED TO MEMBERS IN A PARACHUTE DUTY STATUS CONTINUOUSLY FROM A DATE PRIOR TO DECEMBER 1, 1965 AND, THEREFORE, UNABLE TO QUALIFY FOR PARACHUTE DUTY PAY FOR THE PERIOD PRECEDING THAT DATE, IN VIEW OF THE FACT THAT EXECUTIVE ORDER NO. 11259, A STATUTORY REGULATION PROMULGATED WITH KNOWLEDGE OF THE OCTOBER 1, 1963 EFFECTIVE DATE OF 37 U.S.C. 310 AND THE INABILITY OF PARACHUTISTS IN COMBAT AREAS TO PERFORM PARACHUTE JUMPS, IS RETROACTIVELY EFFECTIVE TO THE DATE CONTEMPLATED BY THE STATUTE; HOWEVER, ANY MODIFICATION OR AMENDMENT OF THE ORDER CAN OPERATE PROSPECTIVELY ONLY.

TO THE SECRETARY OF DEFENSE, JANUARY 25, 1966:

REFERENCE IS MADE TO LETTER OF DECEMBER 10, 1965, AND ENCLOSURE (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 369) FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION WHETHER THE AMENDMENT OF DECEMBER 3, 1965, TO SECTION 108 (C) OF EXECUTIVE ORDER NO. 11157 AUTHORIZES THE SERVICES TO PAY PARACHUTE PAY TO MEMBERS, OTHERWISE QUALIFIED THEREUNDER, FOR ANY PERIODS PRIOR TO DECEMBER 1, 1965, FOR WHICH PERFORMANCE REQUIREMENTS WERE APPROPRIATELY DEFERRED UNDER AUTHORITY OF SECTION 108 (C) PRIOR TO AMENDMENT.

INCENTIVE PAY FOR HAZARDOUS DUTY "INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" IS PRESCRIBING IN SECTION 301 (A) (6), TITLE 37, U.S. CODE, SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT. THE PRESIDENTIAL REGULATIONS CURRENTLY GOVERNING THE PAYMENT OF INCENTIVE PAY FOR PARACHUTE DUTY ARE SET FORTH IN SECTION 108 OF EXECUTIVE ORDER NO. 11157. THESE REGULATIONS, INCLUDING THE NEW SENTENCE WHICH WAS ADDED TO SUBSECTION (C) OF SECTION 108 BY EXECUTIVE ORDER NO. 11259, ARE AS FOLLOWS:

SEC. 108. (A) AS USED IN SECTION 301 (A) OF TITLE 37 OF THE U.S.C. THE TERM ,DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, HAVE RECEIVED A RATING AS A PARACHUTIST OR PARACHUTE RIGGER, OR ARE UNDERGOING TRAINING FOR SUCH A RATING, AND WHO ARE REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING FROM AN AIRCRAFT IN AERIAL FLIGHT.

(B) MEMBERS REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING SHALL BE REQUIRED TO PERFORM ONE OR MORE PARACHUTE JUMPS FROM AN AIRPLANE IN FLIGHT DURING ANY THREE CONSECUTIVE CALENDAR MONTHS IN ORDER TO BE ENTITLED TO RECEIVE INCENTIVE PAY FOR SUCH PERIOD.

(C) WHENEVER, UNDER AUTHORITY CONFERRED BY THE SECRETARY CONCERNED, THE COMMANDING OFFICER OF ANY MEMBER WHO HAS BEEN REQUIRED BY COMPETENT ORDERS TO PARTICIPATE IN PARACHUTE JUMPING CERTIFIES THAT ON ACCOUNT OF THE ABSENCE OF JUMP EQUIPMENT OR AIRCRAFT OR ON ACCOUNT OF MILITARY OPERATIONS OF THE PARTICULAR COMMAND SUCH MEMBER WAS UNABLE TO MAKE THE JUMPS REQUIRED BY THIS SUBSECTION, SUCH MEMBER MAY COMPLY WITH THE MINIMUM REQUIREMENT BY PERFORMING FOUR JUMPS DURING A PERIOD OF 12 CONSECUTIVE CALENDAR MONTHS, AND SUCH REQUIREMENTS MAY BE MET AT ANY TIME DURING SUCH PERIOD. THE MINIMUM REQUIREMENTS MAY BE WAIVED BY THE COMMANDING OFFICER OF A MEMBER FOR ANY PERIOD THAT THE MEMBER IS UNABLE TO PERFORM THE REQUIRED JUMPS BY REASON OF BEING ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA DESIGNATED UNDER SECTION 310 OF TITLE 37 OF THE UNITED STATES CODE.

SECTION 310, TITLE 37, U.S. CODE, TO WHICH SPECIFIC REFERENCE IS MADE IN THE SENTENCE ADDED BY EXECUTIVE ORDER NO. 11259, WAS ADDED TO TITLE 37, U.S. CODE, BY SECTION 9 (A) (1), PUBLIC LAW 88-132, 77 STAT. 216. SECTION 310 BECAME EFFECTIVE OCTOBER 1, 1963, AND IN PERTINENT PART CURRENTLY PROVIDES AS FOLLOW:

(A) EXCEPT IN TIME OF WAR DECLARED BY CONGRESS, AND UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, A MEMBER OF A UNIFORMED SERVICE MAY BE PAID SPECIAL PAY AT THE RATE OF $65 A MONTH FOR ANY MONTH IN WHICH HE WAS ENTITLED TO BASIC PAY AND IN WHICH HE--

(1) WAS SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES;

(2) WAS ON DUTY IN AN AREA IN WHICH HE WAS IN IMMINENT DANGER OF BEING EXPOSED TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES AND IN WHICH, DURING THE PERIOD HE WAS ON DUTY IN THAT AREA, OTHER MEMBERS OF THE UNIFORMED SERVICES WERE SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES; OR

(3) WAS KILLED, INJURED, OR WOUNDED BY HOSTILE FIRE, EXPLOSION OF A HOSTILE MINE, OR ANY OTHER HOSTILE ACTION.

THE PROBLEM ARISING FROM THE NEW SENTENCE ADDED TO SECTION 108 (C) IS SET FORTH IN COMMITTEE ACTION NO. 369, WHEREIN IT IS STATED THAT WHILE THE AMENDMENT AUTHORIZES THE MONTHLY PAYMENT OF PARACHUTE PAY BEGINNING DECEMBER 1, 1965, TO OTHERWISE QUALIFIED PERSONNEL WHO ARE EXCUSED FROM PERFORMANCE REQUIREMENTS BY REASON OF A WAIVER AS AUTHORIZED BY THE AMENDMENT "QUESTION HAS ARISEN AS TO WHETHER SUCH PERSONNEL MAY BE PAID PARACHUTE PAY FOR MONTHS PRIOR TO DECEMBER 1965, ENTITLEMENT TO WHICH WAS MERELY DEFERRED PENDING PERFORMANCE AS REQUIRED BY SEC. 108 (C) AS IT READ PRIOR TO THE AMENDMENT OF 3 DEC. 1965.'

IT APPEARS THAT CERTAIN MILITARY PERSONNEL WHO HAVE BEEN IN A PARACHUTE DUTY STATUS CONTINUOUSLY FROM A DATE PRIOR TO DECEMBER 1, 1965, WILL BE UNABLE TO MEET THE PARACHUTE JUMP REQUIREMENTS TO QUALIFY FOR PARACHUTE DUTY PAY FOR THE PERIOD PRECEDING DECEMBER 1, 1965, BY REASON OF BEING ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA. COMMITTEE ACTION NO. 369 REFLECTS THE VIEW THAT IT WOULD BE INEQUITABLE AND UNFAIR TO DEPRIVE SUCH MEMBERS OF PARACHUTE DUTY PAY FOR THE PERIOD OF TIME PRECEDING DECEMBER 1, 1965, FOR WHICH IN CIRCUMSTANCES OTHER THAN THOSE DESCRIBED IN EXECUTIVE ORDER NO. 11259, THEY WOULD HAVE BEEN ABLE TO MEET THE MINIMUM JUMP REQUIREMENTS SPECIFIED IN SECTION 108 (C) OF EXECUTIVE ORDER NO. 11157, AFTER NOVEMBER 1965.

SUBJECT TO THE CONDITIONS THEREIN STATED, THE PROVISIONS OF EXECUTIVE ORDER NO. 11259 PERMIT THE COMMANDING OFFICER OF A MEMBER OF THE UNIFORMED SERVICES WHO IS IN A PARACHUTE DUTY STATUS UNDER COMPETENT ORDERS TO WAIVE THE MINIMUM REQUIREMENTS WHICH OTHERWISE MUST BE MET BEFORE PAYMENT OF INCENTIVE (PARACHUTE DUTY) PAY MAY BE MADE TO SUCH MEMBER. THE EQUIPMENT NEEDED TO PARTICIPATE IN PARACHUTE JUMPING FOR THE PURPOSE OF MEETING THE MINIMUM REQUIREMENTS SPECIFIED IN SECTION 108 (C) IN ORDER TO RECEIVE PARACHUTE DUTY PAY MAY NOT BE READILY AVAILABLE, IF AT ALL, IN AREAS OF COMBAT OPERATIONS THAT LIE WITHIN THE SCOPE OF 37 U.S.C. 310. LIKEWISE, THE OPPORTUNITY TO PERFORM PARACHUTE DUTY JUMPS IN SUCH CIRCUMSTANCES MIGHT WELL BE NON EXISTENT. CONSEQUENTLY, A MEMBER WHO HAS BEEN IN A PARACHUTE DUTY STATUS CONTINUOUSLY FROM SOME DATE PRECEDING DECEMBER 1, 1965, AND WHO HAS BEEN ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA AS PRESCRIBED IN 37 U.S.C. 310, RENDERING IT IMPOSSIBLE FOR HIM TO MEET THE MINIMUM PARACHUTE JUMP REQUIREMENTS SPECIFIED IN SECTION 108 (C), WILL BE PLACED AT A DISTINCT DISADVANTAGE WITH RESPECT TO HIS PARACHUTE DUTY STATUS FOR THE PERIOD PRECEDING DECEMBER 1, 1965.

IT IS QUITE CLEAR THAT THE PURPOSE OF THE WAIVER AUTHORITY PRESCRIBED IN EXECUTIVE ORDER NO. 11259 IS TO BENEFIT THOSE MEMBERS OF THE UNIFORMED SERVICES IN A PARACHUTE DUTY STATUS WHO ARE UNABLE TO MEET THE MINIMUM PARACHUTE JUMP REQUIREMENTS BY REASON OF HAVING BEEN ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA (37 U.S.C. 310). AS PREVIOUSLY STATED, THE PROVISIONS OF 37 U.S.C. 310 BECAME EFFECTIVE OCTOBER 1, 1963, AND THIS FACT, AS WELL AS THE FACT THAT IN THOSE CIRCUMSTANCES CERTAIN PARACHUTISTS WILL BE UNABLE TO MEET THE JUMP REQUIREMENTS FOR ANY PART OF THE PERIOD PRECEDING DECEMBER 1, 1965, WAS KNOWN AND MUST HAVE BEEN TAKEN INTO CONSIDERATION WHEN THE PROVISIONS OF EXECUTIVE ORDER NO. 11259 WERE DRAFTED.

THE REGULATIONS PROMULGATED IN EXECUTIVE ORDER NOS. 11157 AND 11259 WERE ISSUED BY THE PRESIDENT PURSUANT TO THE AUTHORITY OF 37 U.S.C. 301 (A) AND THEREFORE CONSTITUTE STATUTORY REGULATIONS HAVING THE SAME FORCE AND EFFECT AS THE LAW ITSELF. THE WAIVER AUTHORITY CONTAINED IN EXECUTIVE ORDER NO. 11259 IS NOT INCONSISTENT WITH THE BASIC STATUTORY PROVISIONS. STATUTORY REGULATIONS, WHEN FIRST ISSUED, MAY BE MADE RETROACTIVE IN PROPER CASES TO THE DATE CONTEMPLATED BY THE STATUTE. CF. FRIEDLANDER V. UNITED STATES, 120 CT.CL. 4 (1951). ANY MODIFICATION OR AMENDMENT THEREOF CAN OPERATE PROSPECTIVELY ONLY. 17 COMP. GEN. 566. WHILE THE WAIVER AUTHORITY CONTAINED IN EXECUTIVE ORDER NO. 11259 PURPORTS TO BE PROSPECTIVE ONLY, SUCH WAIVER AUTHORITY APPLIES TO "ANY PERIOD THAT THE MEMBER IS UNABLE TO PERFORM THE REQUIRED JUMPS" BY REASON OF THE SPECIFIC CONDITIONS THEREIN SET FORTH. THE LANGUAGE OF EXECUTIVE ORDER NO. 11259 DOES NOT REQUIRE THAT THE ENTIRE PERIOD OF DUTY FOR WHICH PARACHUTE DUTY PAY MAY BE CLAIMED MUST BE SUBSEQUENT TO NOVEMBER 1965, IF A PERIOD EXISTS AFTER THAT DATE DURING WHICH THE PREVIOUSLY AUTHORIZED DEFERRED MINIMUM PERFORMANCE REQUIREMENTS UNDER SECTION 108 (C) COULD BE MET. HENCE THE WAIVER OF MINIMUM PARACHUTE JUMP REQUIREMENTS AS THEREIN PRESCRIBED AND PROSPECTIVELY APPLIED MAY PROPERLY BE HELD TO COVER ANY PERIOD PRECEDING DECEMBER 1, 1965, FOR WHICH PARACHUTE DUTY PAY WOULD BECOME PAYABLE IF THE MINIMUM JUMP REQUIREMENTS PRESCRIBED IN SECTION 108 (C) COULD OTHERWISE HAVE BEEN MET AFTER THAT DATE. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

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