B-164186, DEC 22, 1970, 50 COMP GEN 425

B-164186, DEC 22, 1970, 50 COMP GEN 425

PAY - ADDITIONAL - HAZARDOUS DUTY - ASSIGNMENT STATUS OFFICERS OF THE UNIFORMED SERVICES TRAINED IN PARACHUTE JUMPING AND THE DEMOLITION OF EXPLOSIVES, WHO INCIDENT TO STAFF BILLET ASSIGNMENTS EVALUATE TRAINING PROGRAMS AND EQUIPMENT, ENTAILING THE OBSERVATION OF ACTUAL TRAINING EXERCISES BY SPECIAL WARFARE FORCES, ARE NOT ENTITLED TO THE DUAL HAZARDOUS DUTY INCENTIVE PAY PROVIDED IN 37 U.S.C. 301 UNLESS THEY ARE ASSIGNED TO AN OPERATIONAL TEAM AND ACTUALLY PERFORM PARACHUTE JUMPING IN A JUMP STATUS OR PERFORM DEMOLITION DUTY AS A PRIMARY ASSIGNMENT. THE MERE EVALUATION OR OBSERVATION OF OPERATIONAL TEAM ACTIVITIES DOES NOT QUALIFY THE OFFICERS FOR INCENTIVE PAY; AND IN THE ABSENCE OF PROPER ORDERS, ANY PARACHUTE JUMPING OR DEMOLITION OF EXPLOSIVES ACTUALLY PERFORMED BY THE OFFICERS WOULD NOT ENTITLE THEM TO ADDITIONAL PAY.

TO D. L. DREHER, DEPARTMENT OF THE NAVY, DECEMBER 22, 1970:

IN LETTER DATED OCTOBER 2, 1970, YOU REQUESTED AN ADVANCE DECISION AS TO WHETHER COMMANDER JAMES H. BARNES, USN, 606890, AND LIEUTENANT BRUCE VAN HEERTUM, USN, 696635, ARE ENTITLED TO DUAL INCENTIVE PAY FOR DUTY INVOLVING PARACHUTE JUMPING AND DEMOLITION OF EXPLOSIVES IN THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-1100 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT THE OFFICERS, WHO HAVE SERVED IN OPERATIONAL SEAL BILLETS, ARE NOW ASSIGNED TO STAFF BILLETS IN THE WASHINGTON AREA AT HEADQUARTERS LEVEL, WHICH BILLETS ARE IN DIRECT SUPPORT OF THE SEAL MISSION.

YOU DESCRIBED THE DUTIES OF COMMANDER BARNES IN CARRYING OUT THE MISSION OF THE SPECIAL WARFARE BRANCH, OFFICE OF THE CHIEF OF NAVAL OPERATIONS, AND STATED THAT TO PROPERLY MAINTAIN LIAISON WITH THE OPERATING UNITS AND TO REMAIN CURRENT WITH OPERATIONAL READINESS AND TRAINING OF SPECIAL WARFARE FORCES, IT IS NECESSARY FOR HIM TO PARTICIPATE IN FIELD TRAINING EXERCISES, INCLUDING PARACHUTING AND DEMOLITIONS ON A REGULAR BASIS. YOU GAVE AS AN EXAMPLE OF SUCH PARTICIPATION AN OCCASION IN FEBRUARY 1970 WHEN HE JOINED SEAL TEAM TWO IN TRAINING EVALUATIONS AT SUFFOLK AND LITTLE CREEK, VIRGINIA.

YOU STATED THAT LIEUTENANT VAN HEERTUM IS SPECIAL WARFARE/EOD PROJECTS OFFICER IN THE MINE WARFARE DIVISION, HEADQUARTERS NAVAL ORDNANCE SYSTEMS COMMAND, WHOSE MISSION IS TO EXERCISE GUIDANCE TO THE LEAD LABORATORIES IN THE PROSECUTION OF SWIMMER WEAPONS SYSTEM AND EXPLOSIVE ORDNANCE DISPOSAL EQUIPMENTS. IN CARRYING OUT THAT MISSION, HE MUST EVALUATE ITEMS DEVELOPED UNDER THE PROGRAM UNDER OPERATIONAL CONDITIONS. YOU SAY THAT HE PARTICIPATED IN SUCH EVALUATION DURING TRAINING EXERCISES CONDUCTED BY UDT -21 AND SEAL TEAM TWO HELD IN FEBRUARY AND MAY 1970 AT SUFFOLK MUNICIPAL AIRPORT, SUFFOLK, VIRGINIA.

YOU ASKED WHETHER PAYMENT FOR PARACHUTE DUTY IN ADDITION TO PAYMENT OF DEMOLITION DUTY MAY BE MADE IN THE SITUATIONS DESCRIBED ABOVE, PROVIDED ALL OTHER REQUIREMENTS ARE MET.

SECTION 301, TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT:

(A) SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY, IN THE AMOUNT SET FORTH IN SUBSECTION (B) OR (C) OF THIS SECTION, FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS. FOR THE PURPOSES OF THIS SUBSECTION, 'HAZARDOUS DUTY' MEANS DUTY -

(6) INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY;

(8) INVOLVING THE DEMOLITION OF EXPLOSIVES AS A PRIMARY DUTY, INCLUDING TRAINING FOR THAT DUTY;

(E) A MEMBER IS ENTITLED TO NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY, AUTHORIZED BY THIS SECTION, FOR A PERIOD OF TIME DURING WHICH HE QUALIFIES FOR MORE THAN ONE PAYMENT OF THAT PAY.

EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, AS AMENDED, PROVIDES IN PERTINENT PART 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.

SEC. 109. AS USED IN SECTION 301(A) OF TITLE 37 OF THE U.S.C. -

(B) THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY ASSIGNMENT (1) DEMOLISH BY THE USE OF EXPLOSIVES UNDERWATER OBJECTS, OBSTACLES, OR EXPLOSIVES, OR RECOVER AND RENDER HARMLESS, BY DISARMING OR DEMOLITION, EXPLOSIVES WHICH HAVE FAILED TO FUNCTION AS INTENDED OR WHICH HAVE BECOME A POTENTIAL HAZARD; (2) PARTICIPATE AS STUDENTS OR INSTRUCTORS IN INSTRUCTIONAL TRAINING, INCLUDING THAT IN THE FIELD OR FLEET, FOR THE DUTIES DESCRIBED IN CLAUSE (1) HEREOF, PROVIDED THAT LIVE EXPLOSIVES ARE USED IN SUCH TRAINING; (3) PARTICIPATE IN PROFICIENCY TRAINING, INCLUDING THAT IN THE FIELD OR FLEET, FOR THE MAINTENANCE OF SKILL IN THE DUTIES DESCRIBED IN CLAUSE (1) HEREOF, PROVIDED THAT LIVE EXPLOSIVES ARE USED IN SUCH TRAINING; OR (4) EXPERIMENT WITH OR DEVELOP TOOLS, EQUIPMENT, OR PROCEDURES FOR THE DEMOLITION AND RENDERING HARMLESS OF EXPLOSIVES, PROVIDED THAT LIVE EXPLOSIVES ARE USED.

SEC. 112. UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, A MEMBER WHO PERFORMS MULTIPLE HAZARDOUS DUTIES UNDER COMPETENT ORDERS MAY BE PAID NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY FOR A PERIOD OF TIME DURING WHICH HE QUALIFIES FOR MORE THAN ONE SUCH PAYMENT. DUAL PAYMENTS OF INCENTIVE PAY SHALL BE LIMITED TO THOSE MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM SPECIFIC MULTIPLE HAZARDOUS DUTIES IN ORDER TO CARRY OUT THEIR ASSIGNED MISSIONS.

SEC. 113. THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.

PARAGRAPH 20305, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES IN PERTINENT PART THAT:

MEMBERS WHO QUALIFY FOR INCENTIVE PAY FOR MORE THAN ONE TYPE OF HAZARDOUS DUTY MAY RECEIVE NO MORE THAN TWO PAYMENTS FOR THE SAME PERIOD. DUAL INCENTIVE PAY IS LIMITED TO THOSE MEMBERS REQUIRED BY ORDERS TO PERFORM SPECIFIC MULTIPLE HAZARDOUS DUTIES NECESSARY FOR SUCCESSFUL ACCOMPLISHMENT OF THE MISSION OF THE UNIT TO WHICH ASSIGNED. A MEMBER WHO IS UNDER COMPETENT ORDERS TO PERFORM MORE THAN ONE HAZARDOUS DUTY, BUT IS ENTITLED TO ONLY ONE TYPE OF INCENTIVE PAY, MAY RECEIVE PAYMENT FOR THE HAZARDOUS DUTY FOR WHICH THE HIGHER RATE OF INCENTIVE PAY IS AUTHORIZED, EVEN THOUGH THAT HAZARDOUS DUTY IS NOT THE PRIMARY DUTY OF HIS CURRENT ASSIGNMENT.

B. TYPES OF DUTIES THAT QUALIFY MEMBERS FOR DUAL PAYMENT OF INCENTIVE PAY:

(1) MEMBERS ASSIGNED TO PARARESCUE UNITS, WHO ARE REQUIRED TO PERFORM PARACHUTE JUMPING IN ADDITION TO AND IN CONNECTION WITH EXPLOSIVE ORDNANCE DEMOLITION DUTIES.

WHILE IT APPEARS THAT BOTH COMMANDER BARNES AND LIEUTENANT VAN HEERTUM ARE FORMER MEMBERS OF SEAL TEAMS AND ARE TRAINED IN PARACHUTE JUMPING AND DEMOLITION OF EXPLOSIVES, IT IS NOT ESTABLISHED THAT AT THEIR PRESENT STAFF BILLETS THEY ARE REQUIRED BY COMPETENT ORDERS TO PERFORM EITHER OF THOSE HAZARDOUS DUTIES FOR THE SUCCESSFUL ACCOMPLISHMENT OF THE MISSIONS OF THE UNITS TO WHICH THEY ARE ASSIGNED. WE UNDERSTAND THAT THE PROPER PERFORMANCE OF THEIR PRESENT DUTY ASSIGNMENTS REQUIRES KNOWLEDGE OF AND EXPERIENCE IN PARACHUTING AND DEMOLITION OF EXPLOSIVES, AND THAT TO PROPERLY EVALUATE THE TRAINING PROGRAMS AND EQUIPMENT ITEMS DEVELOPED IN THOSE ASSIGNMENTS THEY MAY BE REQUIRED TO OBSERVE ACTUAL TRAINING EXERCISES OF SPECIAL WARFARE FORCES. HOWEVER, THE EXTENT OF THEIR PARTICIPATION IS NOT SHOWN.

IT IS CLEAR FROM THE QUOTED PROVISIONS OF LAW AND REGULATIONS THAT IN ORDER TO BE ENTITLED TO DUAL HAZARDOUS DUTY INCENTIVE PAYMENTS, A MEMBER MUST BE ACTUALLY INVOLVED IN THE PERFORMANCE OF TWO OR MORE HAZARDOUS DUTIES REQUIRED TO ACCOMPLISH THE MISSION OF HIS UNIT, ANY ONE OF WHICH HAZARDOUS DUTIES WOULD PLACE HIM IN A STATUS ENTITLING HIM TO INCENTIVE PAY FOR THAT DUTY. SEE 43 COMP. GEN. 667 (1964); 44 ID. 426 (1965); 47 ID. 728 (1968).

IN ORDER TO BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY, THE MEMBER INVOLVED MUST BE IN A JUMP STATUS AND BE REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING FROM AN AIRCRAFT IN AERIAL FLIGHT. IN ORDER TO BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES, THE MEMBER MUST BE REQUIRED BY COMPETENT ORDERS, AND AS A PRIMARY DUTY ASSIGNMENT, TO DEMOLISH BY EXPLOSIVES AND ACTUALLY PERFORM SUCH OTHER DUTY AS WILL MEET ALL THE STIPULATED REQUIREMENTS OF THE LAW AND REGULATIONS.

WE DO NOT VIEW THE DUTIES OF THE STAFF BILLETS TO WHICH THE OFFICERS ARE ASSIGNED AS QUALIFYING THEM FOR INCENTIVE PAY FOR ANY TYPE OF HAZARDOUS DUTY. IN ORDER FOR THEM TO BE ENTITLED TO HAZARDOUS DUTY PAY IN CONNECTION WITH DUTY PERFORMED WITH AN OPERATIONAL SEAL TEAM, TO EVALUATE TRAINING PROCEDURES AND THE EFFECTIVENESS OF EQUIPMENT, IT WOULD BE NECESSARY FOR THEM TO BE "ASSIGNED" TO THE TEAM AND ACTUALLY PERFORM HAZARDOUS DUTIES PURSUANT TO COMPETENT ORDERS REQUIRING PARACHUTE JUMPING AND DEMOLITION OF EXPLOSIVES. MERE EVALUATION OR OBSERVATION OF THE OPERATIONAL SEAL TEAM ACTIVITIES WOULD NOT QUALIFY THEM FOR SUCH PAY; AND IN THE ABSENCE OF PROPER ORDERS, ANY PARACHUTE JUMPING OR DEMOLITION OF EXPLOSIVES ACTUALLY PERFORMED BY THE OFFICERS WOULD NOT ENTITLE THEM TO ADDITIONAL PAY.

YOUR QUESTION IS ANSWERED ACCORDINGLY.