B-133551, OCT. 29, 1957

B-133551: Oct 29, 1957

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IN THE EVENT APPROVAL IS GRANTED FOR PAYMENT TO THE ABOVE-NAMED PERSONNEL. IT IS RELATED THAT. - "* * * VARIOUS DEPARTMENTS OF THE MEDICAL SCIENCES DIVISION OF THE SCHOOL OF AVIATION MEDICINE (UNITED STATES AIR FORCE) HAVE A CONTINUING NEED FOR THE USE OF MEDICAL LABORATORY SPECIALISTS (AFSC 904XO) AND RESEARCH AND DEVELOPMENT OFFICER PERSONNEL (AFSC'S X-915X-X. INDIVIDUALS WITH THE AFSC'S NOTED ABOVE ARE REQUIRED TO SERVE AS INSIDE OBSERVERS DURING ACCOMPLISHMENT OF RESEARCH STUDIES IN WHICH ANIMALS ARE EXPOSED TO SIMULATED ALTITUDE STRESSES WITHIN A LOW PRESSURE CHAMBER. THESE LABORATORY SPECIALISTS WILL BE SUBJECT TO APPROXIMATELY 187 1/2 TO 312 1/2 ALTITUDE EXPOSURE UNITS EACH MONTH.

B-133551, OCT. 29, 1957

TO CAPTAIN ROBERT BODDIE, FINANCE OFFICER, RANDOLPH AIR FORCE BASE, TEXAS:

BY LETTER DATED AUGUST 12, 1957, THE ACTING VICE COMMANDER, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR LETTER OF MAY 17, 1957, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY AS LOW PRESSURE CHAMBER INSIDE OBSERVER MAY BE MADE TO FIRST LIEUTENANT WILLIAM E. HARRIS, AND AIRMEN MARTIN W. NISSLEY AND RICHARD G. BRANSBY ON THE BASIS OF ATTACHED SPECIAL ORDERS AND CERTIFICATE FOR PERFORMANCE OF HAZARDOUS DUTY, IN THE CIRCUMSTANCES SHOWN. YOU ALSO ASK, IN THE EVENT APPROVAL IS GRANTED FOR PAYMENT TO THE ABOVE-NAMED PERSONNEL, IF FUTURE PAYMENTS OF INCENTIVE PAY MAY BE MADE TO PERSONNEL UNDER THE AUTHORITY OF THE SAME TYPE OF ORDERS AND CERTIFICATE.

IT IS RELATED THAT---

"* * * VARIOUS DEPARTMENTS OF THE MEDICAL SCIENCES DIVISION OF THE SCHOOL OF AVIATION MEDICINE (UNITED STATES AIR FORCE) HAVE A CONTINUING NEED FOR THE USE OF MEDICAL LABORATORY SPECIALISTS (AFSC 904XO) AND RESEARCH AND DEVELOPMENT OFFICER PERSONNEL (AFSC'S X-915X-X, 858X AND 869X) TO ACCOMPLISH RESEARCH STUDIES WHICH REQUIRE CONTINUED AND FREQUENT EXPOSURE TO SIMULATED ALTITUDE IN LOW PRESSURE CHAMBERS. INDIVIDUALS WITH THE AFSC'S NOTED ABOVE ARE REQUIRED TO SERVE AS INSIDE OBSERVERS DURING ACCOMPLISHMENT OF RESEARCH STUDIES IN WHICH ANIMALS ARE EXPOSED TO SIMULATED ALTITUDE STRESSES WITHIN A LOW PRESSURE CHAMBER. THESE LABORATORY SPECIALISTS WILL BE SUBJECT TO APPROXIMATELY 187 1/2 TO 312 1/2 ALTITUDE EXPOSURE UNITS EACH MONTH. FURTHER, BECAUSE OF THE HIGHLY SPECIALIZED NATURE OF THESE STUDIES, REGULAR "INSIDE OBSERVER CHAMBER TECHNICIANS' AFSC 901X2, CANNOT PERFORM THE REQUIRED TASKS.'

IT IS FURTHER RELATED THAT FURTHER RESEARCH TASKS WHICH REQUIRE THE USE OF INSIDE OBSERVER TECHNICIANS ARE BEING ACCOMPLISHED OR ARE IN THE PLANNING STAGE. THESE EXPERIMENTS ARE CONTINUING IN SCOPE AND IT IS STATED THAT:

"THE SCHOOL OF AVIATION MEDICINE WILL EXPERIENCE A CONTINUING REQUIREMENT FOR THE USE OF NON-INSTRUCTOR OBSERVER PERSONNEL TO CONDUCT EXPERIMENTAL WORK IN VARIOUS MEDICAL AND SCIENTIFIC SPECIALTIES (AFSC'S OTHER THAN 901X2) WITHIN LOW PRESSURE CHAMBERS. THE NUMBER OF SUCH PERSONNEL AND THEIR SPECIFIC AFSC'S WILL VARY FROM YEAR TO YEAR, DEPENDING ON THE PARTICULAR NATURE OF THE STUDIES UNDERGOING ACCOMPLISHMENT.'

IN THE INSTANT CASE, BY SPECIAL ORDERS NO. 77, DATED APRIL 15, 1957, HEADQUARTERS, SCHOOL OF AVIATION MEDICINE, USAF, RANDOLPH AIR FORCE BASE, TEXAS, LIEUTENANT HARRIS AND AIRMEN NISSLEY AND BRANSBY, AMONG OTHERS, WERE "REQUIRED TO ENGAGE IN DUTY AS LOW PRESSURE CHAMBER INSIDE OBSERVERS. AUTH: AFM 173-20.' ACCORDING TO THE DD FORM 122, CERTIFICATE FOR PERFORMANCE OF HAZARDOUS DUTY, WHICH WAS FORWARDED WITH YOUR REQUEST FOR ADVANCE DECISION, THE ABOVE-NAMED INDIVIDUALS ACCUMULATED 120 ALTITUDE EXPOSURE UNITS EACH FOR THE PERIOD APRIL 15 THROUGH APRIL 30, 1957. YOU EXPRESS DOUBT AS TO VALIDITY OF PAYMENT OF INCENTIVE PAY TO THESE MEN IN VIEW OF PARAGRAPH 11192, AIR FORCE MANUAL 173-20, WHICH DEFINES "DUTY AS LOW PRESSURE CHAMBER INSIDE OBSERVER" AS "DUTY PERFORMED WITHIN LOW- PRESSURE CHAMBERS AT AVIATION PHYSIOLOGICAL TRAINING FACILITIES, BY MEMBERS ASSIGNED TO THAT DUTY AS INSTRUCTOR-OBSERVERS. (SEE E.O. 10152, 17 AUG 1950, AS AMENDED BY E.O. 10618, 28 JUNE 1955.)" NOTHING IN THE RECORD BEFORE US SHOWS THAT THE SUBJECT INDIVIDUALS WERE ASSIGNED TO LOW PRESSURE CHAMBER DUTY AS INSTRUCTOR-OBSERVERS.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AS AMENDED, 37 U.S.C. 235, AUTHORIZES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING DUTY AS LOW PRESSURE CHAMBER INSIDE OBSERVER. REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY OF SECTIONS 204 AND 501 (D) OF THE ABOVE-CITED 1949 ACT ARE CONTAINED IN EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10618, JUNE 28, 1955, AND PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"/9) (E) THE TERM "DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED WITHIN LOW-PRESSURE CHAMBERS AT AVIATION PHYSIOLOGICAL TRAINING FACILITIES BY MEMBERS ASSIGNED TO THAT DUTY AS INSTRUCTOR-OBSERVERS.'

THE PROVISIONS OF PARAGRAPH 11192, AIR FORCE MANUAL 173-20, ARE IDENTICAL WITH THE ABOVE-CITED PROVISION OF THE EXECUTIVE ORDER IN REQUIRING AN "INSTRUCTOR-OBSERVER" STATUS FOR PAYMENT OF INCENTIVE PAY FOR LOW-PRESSURE CHAMBER DUTY. IN THAT CONNECTION, IN CONSIDERING THE BILL H.R. 4720, 84TH CONGRESS, 1ST SESSION, WHICH BECAME THE CAREER INCENTIVE ACT OF 1955, PARTICULARLY THAT PART RELATING TO THE PAYMENT OF INCENTIVE PAY FOR DUTY IN A LOW-PRESSURE CHAMBER, IT WAS STATED IN SENATE REPORT NO. 125, AT PAGE 12, THAT "THIS DUTY REFERS TO THE OFFICER OR ENLISTED MAN WHO IS ASSIGNED AS INSIDE INSTRUCTOR IN A LOW PRESSURE CHAMBER.' IT APPEARS THAT NEITHER LIEUTENANT HARRIS NOR AIRMEN NISSLEY AND BRANSBY HAD THE STATUS OF "INSTRUCTOR-OBSERVER" OR WERE ASSIGNED TO LOW PRESSURE CHAMBER DUTY IN SUCH CAPACITY. UNLESS ALL ESSENTIAL ELEMENTS PRESCRIBED BY THE STATUTE INVOLVED, EXECUTIVE ORDER, AND REGULATION ARE PRESENT, IT CANNOT BE SAID THAT THE INVOLVED INDIVIDUALS, NO MATTER HOW HAZARDOUS THEIR DUTY ASSIGNMENTS MAY BE, ARE PERFORMING DUTY WITHIN THE CONTEMPLATION OF THE AFORE-CITED AUTHORITIES.

ACCORDINGLY, SUCH INDIVIDUALS MAY NOT BE DEEMED TO HAVE PERFORMED HAZARDOUS DUTY AS DEFINED IN SECTION 9 (E) OF THE EXECUTIVE ORDER, AS AMENDED, AND HENCE HAVE NOT MET THE REQUIREMENTS FOR THE INCENTIVE PAY AUTHORIZED FOR DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER. SEE OUR DECISION OF OCTOBER 21, 1957, B-133537, 37 COMP. GEN. - , A COPY OF WHICH IS ENCLOSED.