B-130355, MARCH 25, 1957, 36 COMP. GEN. 667

B-130355, MARCH 25, 1957, 36 COMP. GEN. 667

MILITARY PERSONNEL - HAZARDOUS DUTY - CONTACT WITH LEPERS - INCENTIVE PAY MEMBERS OF THE UNIFORMED SERVICES WHO ARE ASSIGNED TO FACILITIES WHICH ARE MEDICALLY RECOGNIZED AS ASYLUMS OR HOSPITALS FOR LEPERS, EVEN THOUGH THE FACILITIES ARE NOT OFFICIALLY DESIGNATED AS ,LEPROSARIUM," ARE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING CONTACT WITH PERSONS AFFLICTED WITH LEPROSY. DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY TO ENTITLE MILITARY PERSONNEL TO INCENTIVE PAY FOR HAZARDOUS DUTY MAY NOT BE PRESUMED FROM THE MERE ASSIGNMENT TO DUTY AT LEPROSARIUMS; HOWEVER, IF THERE IS EVIDENCE THAT THE DUTY INVOLVES PERSONAL OR INTIMATE CONTACT WITH LEPERS OR CONTACT WITH PROPERTY OF PATIENTS WHICH WOULD BE MEDICALLY CONSIDERED AS FURNISHING A METHOD OF TRANSMISSION OF THE DISEASE, MEMBERS ARE ENTITLED TO INCENTIVE PAY.

TO THE SECRETARY OF DEFENSE, MARCH 27, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED JANUARY 12, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS SUBMITTED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 161, CONCERNING THE INCENTIVE PAY PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS OF THE UNIFORMED SERVICES PERFORMING DUTY INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235, PRESCRIBES, UNDER THE CONDITIONS AND AT THE RATES OF PAY THEREIN SET FORTH, INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES REQUIRED BY COMPETENT ORDERS. THE PERTINENT STATUTORY PROVISIONS WITH RESPECT TO THE PAYMENT OF INCENTIVE PAY FOR "LEPROSY" DUTY ARE 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:

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

(C) OFFICERS AND ENLISTED PERSONS OF THE UNIFORMED SERVICES WHO ARE QUALIFIED FOR THE INCENTIVE PAY AUTHORIZED UNDER SUBSECTION (A) ARE ENTITLED TO BE PAID AT THE RATE OF $110 AND $55 PER MONTH, RESPECTIVELY, FOR THE PERFORMANCE OF ANY HAZARDOUS DUTY DESCRIBED IN CLAUSES (3) TO (12) OF SUBSECTION (A).

(D) THE PRESIDENT MAY, IN TIME OF WAR, SUSPEND THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF ANY OR ALL HAZARDOUS DUTY.

(E) NO MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE MORE THAN ONE PAYMENT OF ANY INCENTIVE PAY AUTHORIZED PURSUANT TO THIS SECTION FOR THE SAME PERIOD OF TIME DURING WHICH HE MAY QUALIFY FOR MORE THAN ONE PAYMENT OF SUCH INCENTIVE PAY. (63 STAT. 809, 69 STAT. 21, 37 U.S.C. 235 (A) (6), (C), (D), (E).)

SECTION 2, EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950 (15 F.R. 5489), PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, ANY MEMBER OF THE UNIFORMED SERVICES, INCLUDING MEMBERS ASSIGNED TO SPECIAL, ADMINISTRATIVE, OR SCHOOL DUTIES, MAY BE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY. SECTION 9 OF THE EXECUTIVE ORDER PROVIDES THAT, AS USED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949.

(A) THE TERM "DUTY INVOLVING INTIMATE CONTACT WITH PERSON 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 FOR A PERIOD OF INSTRUCTION, WHETHER OR NOT SUCH LEPROSARIUM IS UNDER THE JURISDICTION OF ONE OF THE UNIFORMED SERVICES.

THE FOLLOWING QUESTIONS ARE PRESENTED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 161:

1. UNDER SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810 AND THE PROVISIONS OF SECTION 9 (A) OF EXECUTIVE ORDER 10152 OF 17 AUGUST 1950, DOES ENTITLEMENT EXIST TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY "INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" WHERE MEMBERS ARE ASSIGNED BY COMPETENT ORDERS TO PERFORM SUCH DUTY AT A SPECIAL WARD OF A STATION HOSPITAL, WHICH WARD IS CONSIDERED MEDICALLY TO CONSTITUTE A ,LEPROSARIUM IN FACT" BUT HAS NOT BEEN OFFICIALLY DESIGNATED A LEPROSARIUM?

2. DOES THE LANGUAGE OF SECTION 9 (A) OF EXECUTIVE ORDER 10152, SUPRA, ALLOW "INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" PRESCRIBED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, TO BE PRESUMED IN ALL CASES WHERE ANY DUTY IS PERFORMED INCIDENT TO ASSIGNMENT BY COMPETENT ORDERS TO A LEPROSARIUM FOR THE REQUIRED PERIOD?

3. IF A SHOWING OF "INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY" IS REQUIRED, DOES ACTUAL PHYSICAL HANDLING OF THE BODIES OF SUCH PERSONS HAVE TO TAKE PLACE?

4. IF QUESTION 3 IS ANSWERED IN THE NEGATIVE, WOULD MEMBERS PROPERLY ASSIGNED TO A LEPROSARIUM FOR THE PERFORMANCE OF THE FOLLOWING TYPES OF DUTY NOT INVOLVING BODILY CONTACT WITH LEPERS QUALIFY FOR INCENTIVE PAY:

A. MEMBERS PERFORMING LABORATORY ANALYSES OF BODY FLUIDS, ETC., OF PERSONS AFFLICTED WITH LEPROSY?

B. MEMBERS HANDLING PERSONAL EFFECTS SUCH AS LAUNDRY, FOOD CONTAINERS, ETC., OF THESE PERSONS?

C. MEMBERS PERFORMING MAINTENANCE DUTIES ON BUILDINGS COMPRISING THE LEPROSARIUM?

D. MEMBERS PERFORMING ROUTINE INSPECTIONS OF THE LEPROSARIUM.

THE DISCUSSION IN COMMITTEE ACTION NO. 161 RELATING TO THESE QUESTIONS INDICATES UNCERTAINTY AS TO WHAT TYPE OF FACILITY MAY BE VIEWED AS CONSTITUTING A "LEPROSARIUM" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 9 (A), EXECUTIVE ORDER NO. 10152. THE ISSUE ACTUALLY RAISED IS WHETHER A FACILITY UTILIZED FOR HOUSING AND CARING OF LEPERS, IF MEDICALLY RECOGNIZED AS A "LEPROSARIUM" BUT NOT OFFICIALLY DESIGNATED AS SUCH, WOULD CONSTITUTE A "LEPROSARIUM" WITHIN THE PURVIEW OF SECTION 9 (A), EXECUTIVE ORDER NO. 10152.

THE TERM "LEPROSARIUM" AS USED IN SECTION 9 (A), EXECUTIVE ORDER NO. 10152, IS NOT REQUIRED TO BE CONSTRUED IN SO LITERAL AND NARROW A SENSE AS WILL RESULT IN THE INTRODUCTION OF LIMITATIONS OR OTHER RESTRICTIONS THAT ARE NOT CLEARLY AND REASONABLY REQUIRED FROM THE LANGUAGE OF THE LAW. WHETHER A PARTICULAR FACILITY ACTUALLY BEING UTILIZED FOR THE HOUSING AND CARE OF LEPERS IS OR IS NOT A "LEPROSARIUM" IS A QUESTION OF FACT AND IS NOT DEPENDENT ENTIRELY UPON AN OFFICIAL DESIGNATION OF THE FACILITY AS SUCH. GENERALLY, IT IS TO BE ANTICIPATED THAT SUCH A FACILITY WILL HAVE BEEN OFFICIALLY DESIGNATED AS A "LEPROSARIUM" BUT, NOTWITHSTANDING THE ABSENCE OF ANY SUCH OFFICIAL DESIGNATION, WHERE THE FACTS CLEARLY ESTABLISH THAT THE PARTICULAR FACILITY IN QUESTION IS MEDICALLY RECOGNIZED AND THUS IN FACT CONSTITUTES AN ASYLUM OR HOSPITAL FOR LEPERS, DUTY PERFORMED THEREAT UNDER COMPETENT ORDERS WOULD PLACE THE MEMBER CONCERNED WITHIN THE PURVIEW OF SECTION 9 (A) OF EXECUTIVE ORDER NO. 10152 AND, HENCE, ALSO WITHIN THE SCOPE OF THE INCENTIVE PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949. QUESTION 1 IS ANSWERED AFFIRMATIVELY.

QUESTIONS 2 AND 3 ARE ANSWERED IN THE NEGATIVE. SEE THE ANSWERS TO QUESTION 4 BELOW.

LEPROSY IS A DREADED, INFECTIOUS DISEASE AND THE ISOLATION OF PATIENTS INFECTED WITH IT IS USUALLY REQUIRED. SEE SECTIONS 255, 256, AND 264, TITLE 42, U.S.C. HENCE, IT SEEMS REASONABLE TO CONCLUDE THAT THE SITUATION OF THE MEMBERS DESCRIBED IN QUESTIONS 4A AND 4B IS WITHIN THE SCOPE OF SECTION 204 (A) (6) OF THE CAREER COMPENSATION ACT AND THE EXECUTIVE ORDER ISSUED PURSUANT TO THAT SECTION. THOSE QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.

HOWEVER, NO CLOSE OR PERSONAL AND INTIMATE CONTACT WITH LEPERS WOULD APPEAR TO BE REQUIRED, GENERALLY, WITH RESPECT TO PERSONS PERFORMING GENERAL MAINTENANCE DUTIES ON BUILDINGS COMPRISING A ,LEPROSARIUM" FACILITY (QUESTION 4C) OR IN THE CONDUCT OF ROUTINE INSPECTIONS OF A LEPROSARIUM (QUESTION 4D). THEREFORE, IN THE ABSENCE OF A CLEAR AND DEFINITE SHOWING IN ANY PARTICULAR CASE THAT THE MEMBER CONCERNED WHILE PERFORMING MAINTENANCE DUTIES ON BUILDINGS COMPRISING A LEPROSARIUM OR IN THE CONDUCT OF A ROUTINE INSPECTIONS THEREOF WAS REQUIRED TO COME INTO INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY, OR IN DIRECT CONTACT WITH ARTICLES OF PERSONAL POSSESSIONS OR OTHER PROPERTY USED BY PATIENTS HAVING LEPROSY WHICH WOULD BE MEDICALLY CONSIDERED AS FURNISHING, OR AS APT TO FURNISH, A METHOD OF TRANSMISSION OF THE DISEASE, NO PROPER BASIS WOULD BE PRESENTED TO CONSIDER THAT THE NATURE OF SUCH GENERAL MAINTENANCE OR INSPECTION DUTIES WOULD SERVE TO QUALIFY THE MEMBER CONCERNED FOR INCENTIVE PAY. QUESTIONS 4C AND 4D ARE ANSWERED ACCORDINGLY.