B-120342, AUGUST 4, 1954, 34 COMP. GEN. 55

B-120342, AUGUST 4, 1954, 34 COMP. GEN. 55

PAY - ADDITIONAL - DUTY INVOLVING CONTACT WITH LEPERS - CONTINUOUS PERFORMANCE OF DUTY REQUIREMENT SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND EXECUTIVE ORDER NO. 10152, CONTEMPLATE THE PAYMENT OF INCENTIVE PAY TO MEMBERS OF THE UNIFORMED SERVICES FOR DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY DURING ANY MONTH, OR PART THEREOF, WHEN THE MEMBER CONCERNED IS ASSIGNED TO SUCH DUTY BY ORDERS OF COMPETENT AUTHORITY AND ACTUALLY PERFORMS SOME DUTY OF SUCH NATURE ON ONE OR MORE DAYS OF THE MONTH, PROVIDED THAT THE SAID ORDERS REQUIRE THE PERFORMANCE OF DUTY ON EITHER A FULL-TIME BASIS, OR A PART-TIME OR INTERMITTENT BASIS EXTENDING OVER A CONTINUOUS PERIOD OF NOT LESS THAN 30 DAYS. UNDER THE INCENTIVE PAY PROVISIONS OF SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND EXECUTIVE ORDER NO. 10152, AN ARMY OFFICER WHOSE ORDERS CONTEMPLATED THE PERFORMANCE OF CLINIC DUTY AT A LEPROSARIUM FROM TIME TO TIME OVER AN INDEFINITE, BUT EXTENDED PERIOD OF TIME OF 30 DAYS OR MORE, MAY BE PAID ONE MONTH'S INCENTIVE PAY FOR EACH CALENDAR MONTH DURING WHICH HE WAS UNDER ORDERS TO CLINIC DUTY AT THE LEPROSARIUM AND DURING WHICH HE ACTUALLY PERFORMED SUCH DUTY ON ONE OR MORE DAYS; HOWEVER, ANY PART OF A MONTH WHEN OFFICER WAS NOT UNDER ORDERS TO SUCH DUTY SHOULD BE EXCLUDED IN COMPUTING INCENTIVE PAY.

ACTING COMPTROLLER GENERAL WEITZEL TO MAJOR E. M. DUNCAN, DEPARTMENT OF THE ARMY, AUGUST 4, 954:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 27, 1954, FORWARDED BY SECOND ENDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REQUESTING DECISION AS TO WHETHER PAYMENT PROPERLY MAY BE MADE ON THE BASIS OF A SUBMITTED MILITARY PAY ORDER STATED IN FAVOR OF MAJOR CHARLES G. KENDALL, DC, FOR INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY AT PALO SECO LEPROSARIUM, CANAL ZONE, UNDER THE PROVISIONS OF SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809. IT IS STATED THAT DOUBT ARISES AS TO THE PROPRIETY OF PAYMENT FOR THE REASON THAT THE PROVISION IN EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950, THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ASSIGNED BY COMPETENT ORDERS TO A LEPROSARIUM FOR THE PERFORMANCE OF DUTY FOR A PERIOD OF 30 DAYS OR MORE, DOES NOT SPECIFY WHETHER SUCH DUTY MUST BE CONTINUOUS. IN THE EVENT IT IS HELD THAT THE PERIOD OF (ACTUAL PERFORMANCE OF) DUTY NEED NOT BE CONTINUOUS, A FURTHER DECISION IS REQUESTED AS TO WHETHER THE OFFICER "WOULD BE ENTITLED FOR FULL PERIOD COVERED BY ORDERS OR IF PAY MUST BE PRORATED DAILY FOR DAYS OFFICER ACTUALLY PERFORMED DUTY AT THE LEPROSARIUM.'

SPECIAL ORDER NO. 1660, GORGAS HOSPITAL, ANCON, CANAL ZONE, DATED SEPTEMBER 28, 1953, IS AS FOLLOWS:

SPECIAL ORDER NO. 1620, GORGAS HOSPITAL, ANCON, CANAL ZONE DATED OCTOBER 15, 1952, CONCERNING MAJOR CHARLES G. KENDALL, DC, ASSIGNED TO THE DENTAL SERVICE, GORGAS HOSPITAL, OCTOBER 13, 1952 IS AMENDED TO INCLUDE:

VERBAL INSTRUCTIONS ISSUED MAJOR KENDALL IN OCTOBER 1952, DIRECTING HIM TO CONDUCT A DENTAL CLINIC AT THE PALO SECO LEPROSARIUM, CANAL ZONE, AT LEAST ONE DAY EACH WEEK, ARE HEREBY CONFIRMED AND MADE OF RECORD. APPEARS FROM THE MILITARY PAY ORDER THAT MAJOR KENDALL PERFORMED DUTY AT THE PALO SECO LEPROSARIUM ON VARIOUS DATES SPECIFIED THEREIN, NOT LESS THAN ONE DAY EACH CALENDAR MONTH, FOR AN AGGREGATE OF THIRTY DAYS DURING THE PERIOD FROM JANUARY 27, 1953 TO DECEMBER 1, 1953.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810, PROVIDES THAT:

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:

(6) DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY;

THE TERM "DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY," FOR WHICH INCENTIVE PAY IS AUTHORIZED, IS DEFINED IN SECTION 9 (A) OF THE EXECUTIVE ORDER NO. 10152, AS FOLLOWS:

(A) THE TERM "DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY ANY MEMBER WHO IS ASSIGNED BY COMPETENT ORDERS TO A LEPROSARIUM FOR THE PERFORMANCE OF DUTY FOR A PERIOD OF THIRTY DAYS OR MORE OR A PERIOD OF INSTRUCTION, WHETHER OR NOT SUCH LEPROSARIUM IS UNDER THE JURISDICTION OF ONE OF THE UNIFORMED SERVICES.

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE ENGAGED AS A PHYSICIAN OR DENTIST WAS ENTITLED TO ADDITIONAL PAY FOR DUTY INVOLVING INTIMATE CONTACT WITH LEPROSY PATIENTS, WHEN SUCH OFFICER WAS ASSIGNED TO "FULL- TIME UTY" AT A STATION DEVOTED EXCLUSIVELY TO THE CARE OF LEPROSY PATIENTS. SEE SECTION 21.61, EXECUTIVE ORDER NO. 9993, DATED AUGUST 31, 1948, AND 42 CFR 21.61. HOWEVER, EXECUTIVE ORDER NO. 10152 (NOW UNDER CONSIDERATION) DOES NOT APPEAR TO MEAN THAT THE 30-DAY PERIOD SPECIFIED THEREIN MUST BE 30 CONTINUOUS DAYS OF ACTUAL PERFORMANCE OF OFFICIAL DUTY OR THAT THE DUTY MUST BE FULL-TIME DUTY. IN THAT CONNECTION, UNDER THE PROVISIONS OF SECTION 11 OF THE SAID EXECUTIVE ORDER, A MEMBER WHO OTHERWISE MEETS THE REQUIREMENTS PRESCRIBED, IS ENTITLED TO INCENTIVE PAY FOR DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY DURING AUTHORIZED LEAVES OF ABSENCE.

IT REASONABLY APPEARS THAT BOTH THE STATUTE AND THE EXECUTIVE ORDER CONTEMPLATE THE PAYMENT OF INCENTIVE PAY FOR DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY DURING ANY MONTH, OR PART THEREOF, WHEN THE MEMBER CONCERNED IS ASSIGNED TO SUCH DUTY BY ORDERS OF COMPETENT AUTHORITY AND ACTUALLY PERFORMS SOME DUTY OF SUCH NATURE ON ONE OR MORE DAYS, PROVIDED THAT THE SAID ORDERS REQUIRE THE PERFORMANCE OF SUCH DUTY ON EITHER A FULL-TIME BASIS OF A PART-TIME OR INTERMITTENT BASIS EXTENDING OVER A CONTINUOUS PERIOD OF NOT LESS THAN 30 DAYS.

ALTHOUGH MAJOR KENDALL'S ORDERS DO NOT SPECIFY A PRECISE PERIOD DURING WHICH HE WAS TO CONDUCT A DENTAL CLINIC AT THE PALO SECO LEPROSARIUM, CANAL ZONE, IT REASONABLY APPEARS THAT SUCH ORDERS CONTEMPLATED THE PERFORMANCE OF SUCH DUTY FROM TIME TO TIME OVER AN INDEFINITE BUT EXTENDED PERIOD OF TIME OF 30 DAYS OR MORE.

ACCORDINGLY, THE MILITARY PAY ORDER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND, IF OTHERWISE CORRECT, PAYMENT THEREON IS AUTHORIZED ON THE BASIS OF ONE MONTH'S INCENTIVE PAY FOR EACH CALENDAR MONTH DURING WHICH MAJOR KENDALL WAS UNDER ORDERS TO CLINIC DUTY AT THE LEPROSARIUM AND DURING WHICH HE ACTUALLY PERFORMED SUCH DUTY ON ONE OR MORE DAYS. ANY PART OF A MONTH WHEN HE WAS NOT UNDER ORDERS TO SUCH DUTY (AT THE BEGINNING OR END OF HIS ASSIGNMENT) SHOULD BE EXCLUDED IN COMPUTING THE INCENTIVE PAY DUE HIM, PAY FOR EACH DAY DURING THE OTHER PART OF THE MONTH TO BE ALLOWED IF SOME CLINIC DUTY AT THE LEPROSARIUM ACTUALLY WAS PERFORMED ON ANY DAY OR DAYS DURING THAT PART. COMPARE 33 COMP. GEN. 602.