B-106773, JANUARY 16, 1952, 31 COMP. GEN. 295

B-106773, JANUARY 16, 1952, 31 COMP. GEN. 295

PAY - ADDITIONAL - DIVING DUTY - STUDENTS UNDER INSTRUCTION UNDER SECTION 9 (D) OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, PROMULGATED PURSUANT TO SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 WHICH PROVIDES INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, MEMBERS OF THE NAVAL SERVICE, WHO ARE ENTITLED TO RECEIVE BASIC PAY, MAY BE PAID INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY WHEN ASSIGNED BY COMPETENT AUTHORITY TO DUTY AS STUDENTS UNDER INSTRUCTION INVOLVING DIVING AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 16, 1952:

REFERENCE IS MADE TO LETTER OF NOVEMBER 24, 1951, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO THE ENTITLEMENT OF MEMBERS OF THE NAVAL SERVICE TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY WHEN ASSIGNED TO DUTY INVOLVING DIVING UNDER INSTRUCTION.

THE SPECIFIC QUESTION INVOLVED IS WHETHER MEMBERS OF THE NAVAL SERVICE WHO ARE ENTITLED TO RECEIVE BASIC PAY, MAY BE PAID INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY WHEN ASSIGNED BY COMPETENT AUTHORITY TO DUTY AS STUDENTS UNDER INSTRUCTION INVOLVING DIVING AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, PROVIDES AS FOLLOWS:

SEC. 204. (A) SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES:

(9) DUTY AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT, WHEN SUCH DUTY INVOLVES PARTICIPATION IN TRAINING.

THE REGULATIONS CONTEMPLATED BY THE STATUTE ARE CONTAINED IN SECTION 9 (D), EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, WHICH READS AS FOLLOWS:

(D) THE TERM "DUTY AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT, WHEN SUCH DUTY INVOLVES PARTICIPATION IN TRAINING" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO ARE REGULARLY ASSIGNED TO DUTY INVOLVING DIVING AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT WHEN SUCH DIVING IS PRIMARILY FOR THE PURPOSE OF TRAINING DIVERS.

THE LANGUAGE "WHEN SUCH DUTY INVOLVES PARTICIPATION IN TRAINING," AS USED IN THE ABOVE-QUOTED PROVISIONS OF LAW IN CONNECTION WITH DUTY PERFORMED AT THE NAVY DEEP SEA DIVING SCHOOL AND THE NAVY EXPERIMENTAL DIVING UNIT, APPEARS TO BE BROAD ENOUGH TO INCLUDE THE DUTY PERFORMED BY BOTH INSTRUCTORS AND TRAINEES. THE APPLICABLE REGULATIONS, QUOTED ABOVE, REFER TO DUTY "PRIMARILY FOR THE PURPOSE OF TRAINING DIVERS" AND WHILE THAT LANGUAGE DOES NOT EXPRESSLY MENTION DIVING TRAINEES AND IS NOT ENTIRELY CLEAR, SUCH REGULATIONS MAY BE VIEWED AS INCLUDING THE DUTY OF TRAINEES, SINCE DUTY PERFORMED BY SUCH TRAINEES HAS FOR ITS PRIMARY PURPOSE THE TRAINING OF DIVERS. SUCH A VIEW OF THE REGULATIONS HAS BEEN ADOPTED BY THE CHIEF OF NAVAL PERSONNEL AS SHOWN IN FIRST ENDORSEMENT OF OCTOBER 30, 1951, AND AS INDICATED ABOVE THAT VIEW IS CONSISTENT WITH THE PROVISIONS OF SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. ACCORDINGLY, OTHERWISE PROPER PAYMENTS OF INCENTIVE PAY MAY BE MADE TO SUCH STUDENTS UNDER INSTRUCTION INVOLVING DIVING AT THE NAVY DEEP SEA DIVING SCHOOL OR THE NAVY EXPERIMENTAL DIVING UNIT.