B-135973, JUL. 18, 1958

B-135973: Jul 18, 1958

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REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS AUTHORIZED ON MILITARY PAY ORDERS C- 116 AND C-125 COVERING INCENTIVE PAY FOR PARACHUTE JUMPING IN THE CASE OF MAJOR CHARLES M. MAJOR BUSBEE WAS RELIEVED FROM ASSIGNMENT TO HEADQUARTERS. HIS ORDERS WERE AMENDED TO INCLUDE FURTHER TEMPORARY DUTY OF APPROXIMATELY FOUR WEEKS AT THE COMMAND AND GENERAL STAFF COLLEGE. ORDERS WERE ISSUED BY HEADQUARTERS. YOU INDICATE THAT THE BASIS FOR YOUR SUBMISSION IS THAT DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT OF PARACHUTE PAY FOR THE PERIODS FROM AUGUST 1. THEREBY RENDERING IT QUESTIONABLE WHETHER PARACHUTE JUMPING DURING THOSE PERIODS WAS AN ESSENTIAL PART OF HIS MILITARY DUTY. THE TERM "DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO ARE NOT IN A FLYING-PAY STATUS AND WHO.

B-135973, JUL. 18, 1958

TO MAJOR R. PERKINS, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY THIRD INDORSEMENT DATED APRIL 23, 1958, THE CHIEF OF FINANCE FORWARDED HERE UNDER D.O. NUMBER 338 YOUR LETTER OF FEBRUARY 27, 1958, REQUESTING AN ADVANCE DECISION WHETHER PAYMENT IS AUTHORIZED ON MILITARY PAY ORDERS C- 116 AND C-125 COVERING INCENTIVE PAY FOR PARACHUTE JUMPING IN THE CASE OF MAJOR CHARLES M. BUSBEE, JR., 023950.

IT APPEARS THAT PURSUANT TO PARAGRAPH 5, SPECIAL ORDERS NO. 85, DATED APRIL 25, 1957, MAJOR BUSBEE WAS RELIEVED FROM ASSIGNMENT TO HEADQUARTERS, ALASKA COMMAND, APO 942, WITH TEMPORARY DUTY EN ROUTE AT THE COMMAND AND GENERAL STAFF COLLEGE, FORT LEAVENWORTH, KANSAS, FOR APPROXIMATELY 16 WEEKS WITH REPORTING DATE AUGUST 23, 1957, AND FURTHER ASSIGNED TO THE 82ND AIRBORNE DIVISION, FORT BRAGG, NORTH CAROLINA, AFTER COMPLETION OF THE COURSE. BY DEPARTMENT OF THE ARMY ORDERS DATED OCTOBER 24, 1957, HIS ORDERS WERE AMENDED TO INCLUDE FURTHER TEMPORARY DUTY OF APPROXIMATELY FOUR WEEKS AT THE COMMAND AND GENERAL STAFF COLLEGE, FORT LEAVENWORTH, BEGINNING JANUARY 6, 1958.

MAJOR BUSBEE REPORTED TO THE 82ND AIRBORNE DIVISION, FORT BRAGG, FROM A LEAVE STATUS ON JULY 29, 1957, COMPLETED REFRESHER AIRBORNE TRAINING ON JULY 30, 1957, MADE A PARACHUTE JUMP ON AUGUST 1, 1957, AND THEN REVERTED TO A LEAVE STATUS PRIOR TO REPORTING AT FORT LEAVENWORTH, KANSAS, FOR TEMPORARY DUTY AS DIRECTED.

UPON COMPLETION OF TEMPORARY DUTY, MAJOR BUSBEE RETURNED TO FORT BRAGG, REPORTED FOR DUTY WITH THE 82ND AIRBORNE DIVISION ON JANUARY 30, 1958, AND MADE A PARACHUTE JUMP ON FEBRUARY 12, 1958. ORDERS WERE ISSUED BY HEADQUARTERS, 82ND AIRBORNE DIVISION, ON FEBRUARY 3, 1958, CONFIRMING VERBAL ORDERS PLACING MAJOR BUSBEE ON PARACHUTE STATUS EFFECTIVE AUGUST 1, 1957.

YOU STATE THAT YOUR OFFICE HAS CREDITED AND PAID SO MUCH OF MILITARY PAY ORDER 0-116 AS COVERS PARACHUTE PAY FOR MAJOR BUSBEE FROM JANUARY 30, 1958, DATE HE REPORTED TO THE 82ND AIRBORNE DIVISION AFTER COMPLETION OF TEMPORARY DUTY. ALSO, YOU INDICATE THAT THE BASIS FOR YOUR SUBMISSION IS THAT DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT OF PARACHUTE PAY FOR THE PERIODS FROM AUGUST 1, 1957, THROUGH OCTOBER 31, 1957, AND FROM DECEMBER 1, 1957, THROUGH JANUARY 29, 1958, BECAUSE THE CHANGE OF STATION ORDERS, AS AMENDED, DID NOT REQUIRE OR CONTEMPLATE THE PERFORMANCE OF ANY DUTY BY MAJOR BUSBEE WITH HIS ASSIGNED (AIRBORNE) UNIT PRIOR TO JANUARY 30, 1958, THEREBY RENDERING IT QUESTIONABLE WHETHER PARACHUTE JUMPING DURING THOSE PERIODS WAS AN ESSENTIAL PART OF HIS MILITARY DUTY.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235, PROVIDES:

"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:

"/5) DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY; * * *"

SECTION 8 (A) OF EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950, PROVIDES, IN PART, AS FOLLOWS:

"AS USED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, THE TERM "DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO ARE NOT IN A FLYING-PAY STATUS AND WHO, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, HAVE RECEIVED A RATING AS A PARACHUTIST OR PARACHUTE RIGGER, OR ARE UNDERGOING TRAINING FOR SUCH A RATING, AND WHO ARE REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING FROM AN AIRCRAFT IN AERIAL FLIGHT.'

PARAGRAPH 3B (2), ARMY REGULATIONS 35-1250, OCTOBER 10, 1956, PROVIDES:

"B. AUTHORITY TO ISSUE ORDERS FOR ANY SERVICE MEMBER FOR DUTY TO BE PERFORMED WHILE ASSIGNED OR ATTACHED TO AN AIRBORNE OR PARACHUTE UNIT * * * IS DELEGATED TO THE FOLLOWING:

"/2) COMMANDING OFFICERS OF PARACHUTE OR AIRBORNE UNITS * * *.'

PARAGRAPH 7 (A) REPEATS THE PROVISIONS OF PARAGRAPH 8 (A), EXECUTIVE ORDER 10152, AND SUBPARAGRAPHS B (1) AND C THEREOF PROVIDE AS FOLLOWS:

"B. PARACHUTE DUTY IS DESIGNATED AS---

(1) DUTY BY A QUALIFIED PARACHUTIST ASSIGNED TO A TOE POSITION IN A PARACHUTE OR AIRBORNE UNIT WHICH CARRIES A PARACHUTIST OCCUPATIONAL SPECIALIST CLASSIFICATION (MOS, INDICATED BY THE PREFIX DIGIT "7" FOR OFFICERS AND SUFFIX DIGIT "7" FOR ENLISTED PERSONNEL). (PERSONNEL WHO POSSESS A PARACHUTIST MOS CLASSIFICATION WILL NOT BE ENTITLED TO INCENTIVE PAY FOR PARACHUTE DUTY UNLESS THEY ACTUALLY OCCUPY A PARACHUTIST'S TOE POSITION IN A PARACHUTE OR AIRBORNE UNIT OR UNLESS THEY ARE ASSIGNED AS PART OF AN AUTHORIZED OVERSTRENGTH TO SIMILAR POSITIONS.)

"C. PARACHUTE JUMPS MUST BE PERFORMED WHILE THE MEMBER IS ON DUTY AS SET FORTH IN B ABOVE. PARACHUTE JUMPS PERFORMED WHILE A MEMBER IS ON LEAVE, PERMANENT CHANGE OF STATION, OR TEMPORARY DUTY WITH A UNIT OTHER THAN THOSE LISTED IN B ABOVE MAY NOT BE CONSIDERED AS QUALIFYING JUMPS IN DETERMINING A MEMBER'S ENTITLEMENT TO PARACHUTE PAY (SEE MS COMP. GEN. B- 112720, 3 FEB 1953.). PERFORMANCE OF PARACHUTE JUMPS FOR PROFICIENCY PURPOSES IS NOT CONSIDERED PARACHUTE DUTY IN DETERMINING ENTITLEMENT TO PARACHUTE PAY.'

PARAGRAPH 11 OF THOSE REGULATIONS PROVIDES THAT IF A MEMBER IS ON PARACHUTE DUTY, PERFORMS THE REQUIRED JUMPS IN A DUTY STATUS--- OTHER THAN WHILE ON LEAVE--- DURING ANY THREE CONSECUTIVE MONTHS, AND IS OTHERWISE ENTITLED TO INCENTIVE PAY FOR PARACHUTE DUTY, HIS ELIGIBILITY FOR SUCH PAY FOR THE THREE MONTHS FOR WHICH HE IS QUALIFIED WILL NOT BE AFFECTED BY THE FACT THAT HE IS SICK IN THE LINE OF DUTY, IS ON LEAVE IN A PAY STATUS, IS ON TEMPORARY DUTY OTHER THAN PARACHUTE DUTY, OR IS ON AUTHORIZED CHANGE OF STATION.

SUBPARAGRAPH C THEREOF PROVIDES:

"C.TEMPORARY DUTY. THE ONLY MEMBERS WHO ARE ELIGIBLE TO RECEIVE PARACHUTE PAY WHILE ON TEMPORARY DUTY ARE---

"/1) QUALIFIED PARACHUTISTS ASSIGNED TO A TOE POSITION IN A PARACHUTE OR AIRBORNE UNIT WHICH CARRIES A PARACHUTIST OCCUPATIONAL SPECIALIST CLASSIFICATION (MOS, INDICATED BY THE PREFIX DIGIT ,7" FOR OFFICERS AND SUFFIX DIGIT "7" FOR ENLISTED PERSONNEL).

"/2) PARACHUTISTS WHO OCCUPIED POSITIONS WHICH REQUIRED PARACHUTE JUMPING AS AN ESSENTIAL AND INHERENT PART OF SUCH POSITIONS IMMEDIATELY PRECEDING TEMPORARY DUTY OTHER THAN PARACHUTE DUTY, PROVIDED THEY REMAIN ON PARACHUTE DUTY WHILE ON TEMPORARY DUTY.'

IT DOES NOT APPEAR THAT MAJOR BUSBEE WAS ON PARACHUTE DUTY WHILE IN ALASKA OR THAT HE OCCUPIED A POSITION WHILE THERE WHICH REQUIRED PARACHUTE JUMPING AS AN ESSENTIAL PART OF HIS POSITION IMMEDIATELY PRECEDING THE TEMPORARY DUTY DIRECTED IN HIS ORDERS OF APRIL 25, 1957. THUS, UNDER THE CITED LAW AND REGULATIONS, IT DOES NOT APPEAR THAT HE WOULD BECOME ELIGIBLE FOR INCENTIVE PAY FOR PARACHUTE DUTY UNTIL SUCH TIME AS HE WAS REQUIRED TO REPORT AND DID REPORT AT HIS NEW PERMANENT DUTY STATION AND ENTERED UPON A STATUS WHICH REQUIRED PARACHUTE JUMPING AS AN ESSENTIAL PART OF HIS DUTY AND THEREAFTER QUALIFIED FOR SUCH PAY BY PERFORMING THE REQUIRED JUMPS.

NO PROVISION OF THE REGULATIONS INDICATES THAT A MEMBER MAY QUALIFY FOR SUCH PAY BY HIS OWN ACTION IN REPORTING TO HIS PROSPECTIVE NEW STATION PRIOR TO THE TIME HIS ORDERS REQUIRED HIM TO REPORT THERE AFTER HIS LEAVE AND TEMPORARY DUTY EN ROUTE. SUCH VERBAL ORDERS AS WERE GIVEN HIM TO PLACE HIM ON A PARACHUTE STATUS EFFECTIVE AUGUST 1, 1957, AND LATER CONFIRMED BY ORDERS DATED FEBRUARY 3, 1958, APPARENTLY WERE MERELY PERMISSIVE ORDERS AND THEREFORE WERE INEFFECTIVE TO PLACE HIM IN A STATUS ENTITLING HIM TO PARACHUTE PAY FOR ANY PERIOD PRIOR TO JANUARY 30, 1958, THE DATE HE WAS REQUIRED TO REPORT AND DID REPORT UNDER HIS CHANGE OF STATION ORDERS. PRIOR TO THAT DATE IT DOES NOT APPEAR THAT PARACHUTE JUMPING WAS AN ESSENTIAL PART OF HIS MILITARY DUTY.

ACCORDINGLY, PAYMENT ON THE MILITARY PAY ORDERS TRANSMITTED WITH YOUR LETTER IS NOT AUTHORIZED AND THOSE ORDERS ARE RETAINED HERE.