B-166980, JUL. 14, 1969

B-166980, JUL. 14, 1969

MILITARY - PARACHUTE PAY DECISION TO ARMY RESERVE OFFICER SUSTAINING DISALLOWANCE OF CLAIM FOR PARACHUTE PAY FOR PERIODS OF ACTIVE DUTY FOR TRAINING IN ABSENCE OF ORDERS DESIGNATING THAT MEMBER WAS IN A "PARACHUTE POSITION.'

TO LIEUTENANT COLONEL THEODORE N. GANAS, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1969, CONCERNING YOUR CLAIM FOR PARACHUTE PAY FOR CERTAIN PERIODS OF ACTIVE DUTY FOR TRAINING WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT DATED APRIL 22, 1969. THERE HAS ALSO BEEN RECEIVED HERE YOUR LETTER OF MAY 6, 1969, WITH ENCLOSURE, CONCERNING THE SAME MATTER.

IT APPEARS FROM THE RECORD BEFORE US THAT WHILE ASSIGNED TO A RESERVE UNIT IN AN INACTIVE DUTY STATUS, YOU WERE ORDERED TO ACTIVE DUTY FOR TRAINING, NOT INVOLVING PARACHUTE JUMPING, AT THE PENTAGON, WASHINGTON, D.C., DURING THE PERIODS APRIL 8 TO JULY 5, 1968; JULY 8 TO AUGUST 2, 1968; SEPTEMBER 9 TO OCTOBER 4, 1968; AND FROM OCTOBER 21, 1968, TO JANUARY 17, 1969. THE RECORD FURTHER INDICATES THAT AT INTERVALS BETWEEN PERIODS OF ORDERED ACTIVE DUTY FOR TRAINING YOU MADE INACTIVE DUTY PARACHUTE JUMPS WITH YOUR RESERVE UNIT ON JULY 6, 1968, AND SEPTEMBER 7, 1968. THE RECORD ALSO SHOWS THAT YOU PERFORMED A JUMP ON OCTOBER 12, 1968, AND YOU SAY THAT SUCH JUMP WAS MADE WHILE YOU WERE ON ANNUAL ACTIVE DUTY FOR TRAINING. NO ORDERS HAVE BEEN FURNISHED TO SHOW THAT YOU WERE ON ANNUAL ACTIVE DUTY FOR TRAINING WHEN THAT JUMP WAS PERFORMED.

YOUR CLAIM FOR PARACHUTE PAY WAS DENIED BY THE DEPARTMENT OF THE ARMY AND BY OUR CLAIMS DIVISION SUBSTANTIALLY FOR THE REASON THAT YOU WERE NOT IN A PARACHUTE POSITION WHILE ON ACTIVE DUTY FOR TRAINING AT THE PENTAGON WITHIN THE MEANING OF PARAGRAPH 2-2, ARMY REGULATION 37 125, AND HENCE NOT ENTITLED TO PARACHUTE PAY.

YOU STATE THAT YOUR CLAIM IS BASED ON THE FACT THAT INACTIVE DUTY PARACHUTE JUMPS QUALIFY AN INDIVIDUAL TO RECEIVE INCENTIVE (PARACHUTE) PAY FOR BOTH INACTIVE DUTY TRAINING AND ACTIVE DUTY FOR TRAINING. YOU EXPRESSED THE VIEW THAT INCENTIVE PAY ACCRUES FOR PERIODS OF ACTIVE DUTY FOR TRAINING WHETHER THE DUTY PERFORMED DURING THE ACTIVE DUTY FOR TRAINING PERIOD REQUIRES PARACHUTE JUMPING OR NOT. IN SUPPORT OF YOUR CLAIM YOU CITE PARAGRAPHS 20312B (1) AND 80314 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, AND OUR DECISION OF NOVEMBER 16, 1962, B-148188.

WITH YOUR LETTER OF MAY 6, 1969, YOU ENCLOSED A COPY OF SPECIAL ORDER NO. 26, COMPANY "B" , 2D SPECIAL FORCES GROUP (ABN), 1ST SPECIAL FORCES, USAPC -DC NO. 4, DOWER HOUSE ROAD, WASHINGTON, D.C., DATED SEPTEMBER 21, 1965, WHICH AUTHORIZES YOU TO PERFORM HAZARDOUS DUTY INVOLVING PARACHUTE JUMPING WITH YOUR RESERVE ORGANIZATION UNIT, AIS USAR OP DET C, EFFECTIVE SEPTEMBER 1, 1965. YOU SAY THAT YOU REMAINED ON CONTINUOUS JUMP STATUS UNTIL MARCH 10, 1969, WHEN YOUR JUMP STATUS WAS TERMINATED.

REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 301 (A) GOVERNING ENTITLEMENT TO INCENTIVE PAY FOR DUTY INVOLVING PARACHUTE JUMPING PROVIDE IN SECTION 108 (D) OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, AS FOLLOWS:

"MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO HAVE COMPLIED WITH THE REQUIREMENTS PRESCRIBED IN THIS SECTION SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR BOTH ACTIVE-DUTY AND INACTIVE DUTY TRAINING PERFORMED DURING SUCH PERIOD.'

REGULATIONS IMPLEMENTING SECTION 208 OF EXECUTIVE ORDER NO. 11157, PERTAINING TO PARACHUTE DUTY AND JUMPS WHILE ON TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY PROVIDE IN PARAGRAPH 20312, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, INCLUDING EXAMPLE (1) (WHICH YOU CITE), AS FOLLOWS:

"A. GENERAL. PARACHUTE JUMPS MUST BE PERFORMED WHILE THE MEMBER IS ON PARACHUTE DUTY. PARACHUTE JUMPS PERFORMED WHILE A MEMBER IS ON LEAVE, PERMANENT CHANGE OF STATION, OR ON TDY OR TAD WHICH DOES NOT INVOLVE PARACHUTE JUMPING AS AN ESSENTIAL PART OF THE DUTY, MAY NOT BE CONSIDERED AS QUALIFYING JUMPS IN DETERMINING A MEMBER'S ENTITLEMENT TO PARACHUTE PAY.

"B. EXAMPLES

"/1) A MEMBER WAS ASSIGNED ON 1 JANUARY TO A POSITION REQUIRING PARACHUTE JUMPING AS AN ESSENTIAL AND INHERENT PART OF MILITARY DUTY; ON 15 JANUARY, HE PERFORMED A JUMP, ENTITLING HIM TO PARACHUTE PAY FOR JANUARY, FEBRUARY, AND MARCH; ON 25 JANUARY, HE WAS PLACED ON TDY OTHER THAN PARACHUTE DUTY THROUGH 2 JUNE; ON 10 MAY, HE PERFORMED A PARACHUTE JUMP; ON 3 JUNE, HE RETURNED TO HIS PERMANENT UNIT OF ASSIGNMENT AND PERFORMED A JUMP ON 30 JUNE. THE MEMBER'S ENTITLEMENT TO PARACHUTE PAY FOR APRIL, MAY, AND JUNE WAS ESTABLISHED BY THE JUMP PERFORMED ON 30 JUNE AND NOT BY THE ONE PERFORMED ON 10 MAY. HAD THE MEMBER NOT COMPLETED THE REQUIREMENT ON 30 JUNE, ENTITLEMENT TO PARACHUTE PAY FOR APRIL, MAY, AND JUNE WOULD HAVE BEEN LOST.'

PARACHUTE JUMPS PERFORMED BY A MEMBER OF A RESERVE COMPONENT DURING PERIODS OF ACTIVE DUTY (NOT EXTENDED ACTIVE DUTY) FOR TRAINING OR DURING INACTIVE DUTY TRAINING QUALIFY A MEMBER FOR PARACHUTE PAY AS PROVIDED IN PARAGRAPHS 80231D AND 80314 OF THE PAY ENTITLEMENTS MANUAL, AS FOLLOWS:

"/80231) D. PARACHUTE DUTY PAY. PARACHUTE JUMPS PERFORMED DURING PERIODS OF ACTIVE DUTY FOR TRAINING OR DURING INACTIVE DUTY TRAINING PERIODS, IF PERFORMED IN ACCORDANCE WITH SECTION B, CHAPTER 3, PART TWO, MAY BE USED TO QUALIFY THE MEMBER FOR PARACHUTE PAY FOR EITHER TYPE OF TRAINING. PARACHUTE JUMPS PERFORMED WHILE ON EAD WILL NOT BE CONSIDERED AS QUALIFYING A RESERVIST FOR PARACHUTE PAY IN AN INACTIVE DUTY TRAINING STATUS.'

* * * * * * * "80314. PARACHUTE DUTY PAY

"A MEMBER OF A RESERVE COMPONENT WHO PERFORMS INACTIVE DUTY TRAINING IN A PAY STATUS IS ENTITLED TO INCENTIVE PAY FOR PARACHUTE DUTY UNDER THE PROVISIONS OF SECTION B, CHAPTER 3, PART TWO. PARACHUTE JUMPS PERFORMED DURING PERIODS OF INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING MAY BE USED TO QUALIFY A MEMBER FOR INCENTIVE PAY FOR EITHER TYPE OF DUTY. PARACHUTE JUMPS PERFORMED WHILE ON EXTENDED ACTIVE DUTY WILL NOT BE USED TO QUALIFY A MEMBER FOR INCENTIVE PAY WHILE IN AN INACTIVE DUTY TRAINING STATUS.'

IN DESIGNATING THE TYPES OF DUTY WHICH CONSTITUTE "PARACHUTE DUTY" , THE DEPARTMENT OF THE ARMY, IN PARAGRAPH 2-2D, ARMY REGULATION 37-125, DESIGNATED PARACHUTE DUTY TO INCLUDE:

"D. DUTY BY A PARACHUTIST IN A NONAIRBORNE UNIT IN A POSITION DESIGNATED AS A PARACHUTE POSITION UNDER PARAGRAPH 2-5, WHEN IT HAS BEEN DETERMINED THAT PARACHUTE JUMPING IS AN INHERENT AND ESSENTIAL PART OF THE DUTIES OF THE POSITION * * *.'

IN OUR DECISION OF NOVEMBER 16, 1962, B-148188, WHICH YOU CITE, WE CONSIDERED THE CLAIM OF A RESERVE OFFICER FOR PARACHUTE PAY DURING CERTAIN PERIODS, INCLUDING THAT FROM OCTOBER 15 TO 29, 1960, WHILE ON ACTIVE DUTY FOR TRAINING AT FORT BENNING, GEORGIA, A PLACE WHERE HE WAS NOT IN A PARACHUTE DUTY STATUS. SINCE HE HAD ORDERS TO ENGAGE IN PARACHUTE JUMPS, AND SINCE HE PARTICIPATED IN A JUMP ON AUGUST 8, 1960, WITH A UNIT AT FORT MYER, VIRGINIA, WHILE THAT UNIT WAS ON "ANNUAL ACTIVE DUTY FOR TRAINING" , WE CONCLUDED THAT UNDER THE REGULATIONS THERE CITED AND IN EFFECT AT THAT TIME, HE WAS ENTITLED TO PARACHUTE PAY, ON THE BASIS OF THE PARACHUTE JUMP PERFORMED ON AUGUST 8, 1960, FOR THE PERIOD OCTOBER 15 TO 29, 1960, WHILE AT FORT BENNING.

AS WILL BE SEEN FROM A READING OF THAT DECISION, WE ATTEMPTED TO COMPARE THE ACTIVE DUTY FOR TRAINING AT FORT BENNING WITH THE SITUATION OF AN OFFICER ON EXTENDED ACTIVE DUTY WHO PERFORMS TEMPORARY DUTY AWAY FROM HIS STATION. WHILE THE REGULATIONS THEN IN EFFECT SEEMED TO WARRANT THE CONCLUSION STATED, THOSE REGULATIONS HAVE NOW BEEN SUPERSEDED AND WE DO NOT FIND IN THE CURRENT REGULATIONS APPLICABLE DURING THE PERIOD COVERED BY YOUR CLAIM SUFFICIENT BASIS FOR THE CONCLUSION THAT THE PERIODS OF ACTIVE DUTY FOR TRAINING YOU PERFORMED AT THE PENTAGON WERE OTHER THAN DUTY WITH A NONAIRBORNE UNIT IN A POSITION THAT HAD NOT BEEN DESIGNATED A PARACHUTE POSITION.

WHILE UNDER THE ABOVE CITED REGULATIONS CURRENTLY IN EFFECT, PARACHUTE JUMPS PERFORMED DURING THE PERIODS OF INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING MAY BE USED TO QUALIFY A MEMBER FOR PARACHUTE PAY FOR EITHER TYPE OF TRAINING DUTY, PARAGRAPH 2-2D, AR 37 125 CLEARLY REQUIRES THAT DUTY BY A PARACHUTIST IN A NONAIRBORNE UNIT MUST BE DESIGNATED AS A "PARACHUTE POSITION" WITH PARACHUTE JUMPING BEING DETERMINED TO BE AN INHERENT AND ESSENTIAL PART OF THE DUTIES OF THE POSITION IN ORDER FOR THE PERSON CONCERNED TO BE VIEWED AS BEING IN A "PARACHUTE DUTY" STATUS AS THAT TERM IS USED IN THE REGULATIONS.

WHEN A RESERVE OFFICER SERVES ON ACTIVE DUTY FOR TRAINING HE ORDINARILY IS NOT SERVING ON TEMPORARY DUTY AWAY FROM A DESIGNATED POST OF DUTY. THE PLACE WHERE DUTY IS DIRECTED TO BE PERFORMED HAS BEEN VIEWED AS HIS DESIGNATED POST OF DUTY NO MATTER HOW SHORT A PERIOD OF ACTIVE DUTY FOR TRAINING HE WAS TO PERFORM. IN SUCH CIRCUMSTANCES, UNLESS HE IS IN A "PARACHUTE DUTY" STATUS WHILE ON ACTIVE DUTY FOR TRAINING WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE REGULATIONS, THERE IS NO BASIS FOR PAYMENT OF PARACHUTE PAY FOR ANY PERIOD OF ACTIVE DUTY FOR TRAINING.

ACCORDINGLY, IN THE ABSENCE OF ORDERS DESIGNATING YOUR ACTIVE DUTY AT THE PENTAGON AS DUTY IN A ,PARACHUTE POSITION" AS CONTEMPLATED BY THE REGULATIONS, WE MUST CONCLUDE THAT PAYMENT OF PARACHUTE PAY DURING SUCH ACTIVE DUTY IS NOT PROPER.