B-120405, OCTOBER 13, 1954, 34 COMP. GEN. 173

B-120405: Oct 13, 1954

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PAY - ADDITIONAL - DEMOLITION DUTY - DEVELOPMENT AND TESTING OF DEMOLITION TECHNIQUES AND EQUIPMENT MEMBERS OF THE UNIFORMED SERVICES WHO PURSUANT TO COMPETENT ORDERS ARE ASSIGNED TO DUTIES INVOLVING RESEARCH. 1954: REFERENCE IS MADE TO LETTER OF JUNE 8. IT IS RELATED THAT CERTAIN ORDNANCE PERSONNEL OF THE MILITARY DEPARTMENT ASSIGNED TO RESEARCH AND DEVELOPMENT ACTIVITIES ARE RESPONSIBLE FOR THE EVALUATION OF INFORMATION ON UNITED STATES AND FOREIGN EXPLOSIVE ORDNANCE. IT FURTHER APPEARS THAT PURSUANT TO COMPETENT ORDERS THE PERSONNEL CONCERNED ARE ASSIGNED TO DUTIES INVOLVING RESEARCH. IT IS STATED THAT THE LIVE ORDNANCE INVOLVED IN THE TESTS MAY OR MAY NOT HAVE BEEN DROPPED OR LAID IN A NORMAL MANNER.

B-120405, OCTOBER 13, 1954, 34 COMP. GEN. 173

PAY - ADDITIONAL - DEMOLITION DUTY - DEVELOPMENT AND TESTING OF DEMOLITION TECHNIQUES AND EQUIPMENT MEMBERS OF THE UNIFORMED SERVICES WHO PURSUANT TO COMPETENT ORDERS ARE ASSIGNED TO DUTIES INVOLVING RESEARCH, DEVELOPMENT AND TESTING OF SPECIAL EXPLOSIVE ORDNANCE TOOLS AND EQUIPMENT MAY NOT BE CONSIDERED AS PERFORMING DUTY INVOLVING DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF SECTION 9 (B) OF EXECUTIVE ORDER NO. 10152, SO AS TO BE ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY IN THE ABSENCE OF A SHOWING THAT SUCH DUTY MET THE REQUIREMENTS OF THE LAW AND REGULATIONS REGARDING DEMOLITION OF EXPLOSIVES.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, OCTOBER 13, 1954:

REFERENCE IS MADE TO LETTER OF JUNE 8, 1954, WITH ENCLOSURE ( MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 103), FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE REQUESTING DECISION WHETHER MEMBERS OF THE UNIFORMED SERVICES, WHO PURSUANT TO COMPETENT ORDERS ENGAGE IN DEVELOPING AND TESTING SPECIAL EXPLOSIVE-ORDNANCE DISPOSAL TOOLS IN THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURE, MAY BE CONSIDERED AS HAVING PERFORMED DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF SECTION 9 (B) OF EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950.

IT IS RELATED THAT CERTAIN ORDNANCE PERSONNEL OF THE MILITARY DEPARTMENT ASSIGNED TO RESEARCH AND DEVELOPMENT ACTIVITIES ARE RESPONSIBLE FOR THE EVALUATION OF INFORMATION ON UNITED STATES AND FOREIGN EXPLOSIVE ORDNANCE, DEVELOPMENT OF METHODS AND TECHNIQUES OF DISPOSAL IN THE FIELD, AND EVOLVEMENT OF SPECIAL EQUIPMENT FOR DEMOLITION OF EXPLOSIVES. IT FURTHER APPEARS THAT PURSUANT TO COMPETENT ORDERS THE PERSONNEL CONCERNED ARE ASSIGNED TO DUTIES INVOLVING RESEARCH, DEVELOPMENT AND TESTING OF SPECIAL EXPLOSIVE ORDNANCE TOOLS AND EQUIPMENT REQUIRED TO RENDER THE DEVELOPMENT AND TESTING OF TOOLS ON LIVE EXPLOSIVE ORDNANCE. IT IS STATED THAT THE LIVE ORDNANCE INVOLVED IN THE TESTS MAY OR MAY NOT HAVE BEEN DROPPED OR LAID IN A NORMAL MANNER.

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

(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:

(7) DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES AS A PRIMARY DUTY, INCLUDING TRAINING OF SUCH DUTY; * * *

EXECUTIVE ORDER NO. 10152 WAS ISSUED PURSUANT TO SUCH STATUTORY PROVISIONS AND SECTION 9 (B) PROVIDES THAT:

THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS, INCLUDING MEMBERS IN TRAINING FOR SUCH DUTIES, WHO, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY, DEMOLISH BY THE USE OF EXPLOSIVES UNDER-WATER OBJECTS, OBSTACLES, OR EXPLOSIVES, OR RECOVER AND RENDER HARMLESS, BY DISARMING OR DEMOLITION, EXPLOSIVES WHICH, HAVING BEEN PROJECTED, LAUNCHED, DROPPED, OR LAID IN A NORMAL MANNER, HAVE FAILED TO EXPLODE AS INTENDED.

ALSO, SEE PARAGRAPH 2B (3), ARMY REGULATIONS 35-1260; PARAGRAPH 1044112, VOLUME 4, NAVY COMPTROLLER MANUAL; PARAGRAPH 78580, VOLUME 3, MARINE CORPS MANUAL; PARAGRAPH 1186-11188, AIR FORCE MANUAL 173-20.

IT APPEARS THAT ANY CLAIM FOR INCENTIVE PAY BY THE INDIVIDUALS HERE INVOLVED WOULD BE BASED ON THE SECOND PART OF THE REGULATIONS; THAT IS, INCIDENT TO THE RECOVERY AND RENDERING HARMLESS BY DISARMING OR DEMOLITION OF EXPLOSIVE OBJECTS WHICH HAVE BEEN PROJECTED, LAUNCHED, DROPPED, OR LAID IN A NORMAL MANNER AND HAVE FAILED TO EXPLODE AS INTENDED. HOWEVER, THE REQUEST FOR DECISION DOES NOT SHOW, NOR DOES IT APPEAR OTHERWISE, THAT GENERALLY, OR TO WHAT EXTENT, THE EXPLOSIVE OBJECTS INVOLVED HAD BEEN PROJECTED, ETC., IN A NORMAL MANNER BUT HAD FAILED TO EXPLODE AS INTENDED. UNLESS ALL ESSENTIAL ELEMENTS PRESCRIBED BY THE REGULATIONS ARE PRESENT, IT CANNOT BE SAID THAT THE INDIVIDUALS HANDLING EXPLOSIVE ORDNANCE, NO MATTER HOW HAZARDOUS THEIR SITUATION MAY BE, ARE PERFORMING DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF THOSE REGULATIONS. HENCE, IT MAY NOT BE CONCLUDED THAT THE INDIVIDUALS REFERRED TO IN THE COMMITTEE ACTION NO. 103 ARE PERFORMING SUCH DUTY NOTWITHSTANDING THE PURPOSE OF THEIR DUTY ASSIGNMENT AND THE HAZARDS INCIDENT TO SUCH DUTY.

CONSEQUENTLY, WHILE NOTHING APPEARS IN THE LAW OR EXECUTIVE ORDER WHICH REQUIRES A CONCLUSION THAT THE TERM "A PRIMARY DUTY" IS TO BE APPLIED AS MEANING THE ONLY, OR EVEN THE PRINCIPAL DUTY ASSIGNMENT OF THE INDIVIDUAL CONCERNED, IN THE ABSENCE OF A SHOWING THAT THE INDIVIDUALS REFERRED TO IN THE SAID COMMITTEE ACTION NO. 103, ACTUALLY PERFORM DUTY MEETING ALL THE STIPULATED REQUIREMENTS OF THE LAW AND REGULATIONS, THEY MAY NOT BE REGARDED AS HAVING PERFORMED "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES.'