B-141836, FEBRUARY 24, 1960, 39 COMP. GEN. 601

B-141836, FEBRUARY 24, 1960, 39 COMP. GEN. 601

MILITARY PERSONNEL - HAZARDOUS DUTY - ASTRONAUTS - INJURY - RATE OF PAY ALTHOUGH MEMBERS OF THE UNIFORMED SERVICES IN A FLIGHT STATUS WHO ALSO QUALIFY FOR INCENTIVE PAY FOR HAZARDOUS DUTY AS SUBJECTS IN THERMAL STRESS, ACCELERATION, OR DECELERATION EXPERIMENTS AND WHO ARE INJURED OR INCAPACITATED AS A RESULT OF THE ADDITIONAL HAZARDOUS DUTY NOT AS THE RESULT OF AN AVIATION ACCIDENT ARE NOT ENTITLED TO INCENTIVE PAY AT THE RATE FOR AVIATION DUTY FOR A 3-MONTH GRACE PERIOD, THEY ARE ENTITLED TO INCENTIVE PAY AT THE RATE FOR THE SPECIFIC TYPE OF HAZARDOUS DUTY BEING PERFORMED WHEN THE INCAPACITY WAS INCURRED, FOR A PERIOD NOT TO EXCEED 3 MONTHS; HOWEVER, NO RIGHT TO INCENTIVE PAY WOULD ACCRUE TO A MEMBER WHO IS INJURED WHILE ASSIGNED TO DUTY AS A SUBJECT, AS DISTINGUISHED FROM DUTY AS AN INSTRUCTOR-OBSERVOR, IN LOW-PRESSURE CHAMBER EXPERIMENTS.

TO THE SECRETARY OF DEFENSE, FEBRUARY 24, 1960:

REFERENCE IS MADE TO LETTER OF JANUARY 23, 1960, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON A QUESTION DISCUSSED IN COMMITTEE ACTION NO. 258 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTION IS AS FOLLOWS:

A MEMBER UNDER COMPETENT ORDERS TO DUTY INVOLVING FLYING RECEIVING INCENTIVE PAY FOR HAZARDOUS DUTY BY REASON OF PERFORMANCE OF FLYING DUTY IS ALSO UNDER COMPETENT ADDITIONAL DUTY ORDERS REQUIRING THE PERFORMANCE OF HAZARDOUS DUTY AS A SUBJECT IN THERMAL STRESS, ACCELERATION/DECELERATION AND LOW PRESSURE CHAMBER EXPERIMENTS. WOULD SUCH MEMBER BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY FOR A THREE MONTH GRACE PERIOD, IF INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF PERFORMANCE OF ONE OF THE ADDITIONAL HAZARDOUS DUTIES, PROVIDED THE PEFORMANCE REQUIREMENTS FOR SUCH TEMPORARY HAZARDOUS DUTY HAD BEEN MET? IF THE ANSWER TO THE ABOVE IS AFFIRMATIVE, IS IT ASSUMED THAT THE CREDIT OF INCENTIVE PAY SHOULD BE BASED UPON THE INCENTIVE PAY RATE FOR FLYING DUTY.

IT IS STATED IN COMMITTEE ACTION NO. 258 THAT "THE ADVENT OF "ASTRONAUTS" HAS NECESSITATED THE ASSIGNMENT OF PERSONNEL, WHO ARE UNDER COMPETENT ORDERS TO DUTY INVOLVING FLYING, TO ADDITIONAL DUTY AS SUBJECTS IN EXPERIMENTS INVOLVING OTHER TYPES OF HAZARDOUS DUTY, INCLUDING ACCELERATION/DECELERATION, LOW PRESSURE CHAMBER, AND THERMAL STRESS.'

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 235 (A), AUTHORIZES, SUBJECT TO SUCH REGULATIONS THAT MAY BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER, DUTY AS HUMAN ACCELERATION OR DECELERATION EXPERIMENTAL SUBJECT, AND DUTY AS HUMAN TEST SUBJECT IN THERMAL STRESS EXPERIMENTS. SECTION 204 (E) OF THE 1949 ACT, AS AMENDED, 37 U.S.C. 235 (E), PROVIDES THAT 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. REGULATIONS PROMULGATED PUSUANT TO THE AUTHORITY OF SECTIONS 204 AND 501 (D), 37 U.S.C. 301, OF THE CAREER COMPENSATION ACT OF 1949, ARE CONTAINED IN EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10618, JUNE 28, 1955, AND FURTHER AMENDED BY EXECUTIVE ORDER NO. 10739, NOVEMBER 15, 1957. PERTINENT PROVISIONS OF EXECUTIVE ORDER NO. 10152, AS AMENDED, ARE AS FOLLOWS:

(1) (C) THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH A MEMBER WHO IS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IS INJURED OR OTHERWISE INCAPACITATED AS A RESULT, AS ATTESTED BY THE APPROPRIATE MEDICAL AUTHORITY OF THE UNIFORMED SERVICE CONCERNED, OF (1) JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OF AUXILIARY THEREEOF, OR(2) PARTICIPATION IN ANY DULY AUTHORIZED AERIAL FLIGHT OR OTHER AIRCRAFT OR GLIDER OPERATIONS.

(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.

(F) THE TERM "DUTY AS HUMAN ACCELERATION OR DECELERATION EXPERIMENTAL SUBJECT" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS EXPOSED AS HUMAN ACCELERATION OR DECELERATION EXPERIMENTAL SUBJECTS UTILIZING EXPERIMENTAL ACCELERATION OR DECELERATION DEVICES.

(H) THE TERM "DUTY AS HUMAN TEST SUBJECT IN THERMAL STRESS EXPERIMENTS" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS EXPOSED AS HUMAN THERMAL EXPERIMENTAL SUBJECTS IN THERMAL STRESS EXPERIMENTS CONDUCTED UNDER THE SUPERVISION OF ANY LABORATORY DESIGNATED BY THE SECRETARY CONCERNED.

SEC. 10. ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED 3 MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.

EXECUTIVE ORDER NO. 10152, AS AMENDED, NOT ONLY PRESCRIBES REGULATIONS RELATIVE TO THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF AVIATION DUTY, BUT ALSO PRESCRIBES REGULATIONS FOR THE PAYMENT OF INCENTIVE PAY FOR THE OTHER TYPES OF HAZARDOUS DUTY FOR WHICH SUCH PAY IS AUTHORIZED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. HENCE, SECTION 10 OF THE EXECUTIVE ORDER WOULD SEEM TO HAVE BROADER APPLICATION THAN THE CORRESPONDING PROVISION IN PRIOR EXECUTIVE ORDERS SUCH AS SECTION 10 OF EXECUTIVE ORDER NO. 9195, JULY 7, 1942, WHICH RELATED ONLY TO THE PAYMENT OF ADDITIONAL PAY FOR THE PERFORMANCE OF AVIATION DUTY. THE PERSONS COVERED BY SECTION 10 WHO ARE DEEMED TO HAVE FULFILLED THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY WHILE INJURED OR OTHERWISE INCAPACITATED ARE DESCRIBED AS MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO ARE INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF "SUCH DUTY," THAT IS, THE HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. COMPARE 32 COMP. GEN. 530.

A MEMBER WHO QUALIFIES FOR INCENTIVE PAY FOR HAZARDOUS DUTY BY REASON OF THE PERFORMANCE OF AVIATION DUTY AND WHO IS INJURED OR OTHERWISE INCAPACITATED IN AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS DEFINED IN EXECUTIVE ORDER NO. 10152, AS AMENDED, IS ENTITLED TO SUCH INCENTIVE PAY AT THE RATE PRESCRIBED FOR AVIATION DUTY FOR A GRACE PERIOD OF NOT TO EXCEED 3 MONTHS AS AUTHORIZED IN SECTION 10, EXECUTIVE ORDER NO. 10152. IF SUCH MEMBER, HOWEVER, IS NOT INJURED IN AN AVIATION ACCIDENT BUT IS INJURED OR OTHERWISE INCAPACITATED AS THE RESULT OF THE PERFORMANCE UNDER COMPETENT ORDERS OF HAZARDOUS DUTY AS A SUJBECT IN THERMAL STRESS, OR ACCELERATION OR DECELERATION, HE WOULD BE ENTITLED, IF OTHERWISE QUALIFIED, TO INCENTIVE PAY AT THE RATE PRESCRIBED FOR THE PARTICULAR TYPE OF HAZARDOUS DUTY THEN BEING PERFORMED. HOWEVER, NO RIGHT TO SUCH PAY CAN ACCRUE TO A MEMBER WHO IS ASSIGNED TO DUTY AS A SUBJECT, AS DISTINGUISHED FROM DUTY AS AN INSTRUCTOR-OBSERVER, IN LOW PRESSURE CHAMBER EXPERIMENTS. SEE 37 COMP. GEN. 265, AND DECISION OF OCTOBER 29, 1957, B-133551.

WITH THE EXCEPTIONS NOTED ABOVE AND FOR THE REASONS THERE STATED, IT IS CONCLUDED THAT A MEMBER WHO IS INJURED OR OTHERWISE INCAPACITATED AS THE RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY, IN THE CIRCUMSTANCES DESCRIBED IN COMMITTEE ACTION NO. 258, WOULD BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY AT THE RATE PRESCRIBED FOR THE SPECIFIC TYPE OF HAZARDOUS DUTY INVOLVED FOR A GRACE PERIOD OF NOT TO EXCEED 3 MONTHS. SUCH MEMBER, HOWEVER, WOULD NOT BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY AT THE RATE PRESCRIBED FOR AVIATION DUTY. 37 COMP. GEN. 265. YOUR QUESTION IS ANSWERED ACCORDINGLY.