B-141856, APRIL 27, 1960, 39 COMP. GEN. 731

B-141856, APRIL 27, 1960, 39 COMP. GEN. 731

MILITARY PERSONNEL - DEMOLITION DUTY PAY - UNDERWATER OBSTACLES THE LEGISLATIVE HISTORY OF SECTION 204 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 (A) (7), AUTHORIZING INCENTIVE PAY FOR DEMOLITION OF EXPLOSIVES, INDICATES THAT SUCH WAS AUTHORIZED PRIMARILY FOR UNDERWATER DEMOLITION TEAMS OF THE NAVY; THEREFORE, THE TERM "UNDERWATER" IN THE PHRASE "DEMOLISH BY THE USE OF EXPLOSIVES UNDERWATER OBJECTS, OBSTACLES, OR EXPLOSIVES" IN SECTION 9 (B), EXECUTIVE ORDER NO. 10152, AS AMENDED, MUST BE CONSTRUED AS MODIFYING NOT ONLY ,OBJECTS" BUT ALSO THE WORDS "OBSTACLES" AND "EXPLOSIVES.' MEMBERS OF THE UNIFORMED SERVICES WHO, IN CONNECTION WITH ASSIGNMENT TO VARIOUS MILITARY OCCUPATIONAL SPECIALTIES, ARE TAUGHT HOW TO SET UNDERWATER DEMOLITION CHARGES MAY NOT HAVE SUCH TRAINING DUTY REGARDED AS A PRIMARY DUTY INVOLVING DEMOLITION OF EXPLOSIVES TO BE ENTITLED TO INCENTIVE PAY FOR DEMOLITION DUTY, NOTWITHSTANDING THAT THE DUTY MAY BE PERFORMED UNDER EXTREMELY HAZARDOUS CONDITIONS.

TO THE SECRETARY OF DEFENSE, APRIL 27, 1960:

REFERENCE IS MADE TO LETTER OF JANUARY 27, 1960, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON CERTAIN QUESTIONS DISCUSSED IN COMMITTEE ACTION NO. 260 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. IN THE INTERPRETATION OF THE PHRASE "DEMOLISH BY THE USE OF EXPLOSIVES UNDERWATER OBJECTS, OBSTACLES, OR EXPLOSIVES," CONTAINED IN SECTION 9 (B) EXECUTIVE ORDER 10152, 17 AUGUST 1950, AS AMENDED BY SECTION 1, EXECUTIVE ORDER 10618, 28 JUNE 1955, DOES THE WORD "UNDER WATER" MODIFY THE WORD "OBJECTS" ONLY, OR DOES IT MODIFY THE THREE WORDS "OBJECTS," "OBSTACLES," AND "EXPLOSIVES?

2. CERTAIN MILITARY OCCUPATIONAL SPECIALTIES (E.G., PIONEER, COMBAT ENGINEER, QUARRYMAN, FIREFIGHTER, WELL DRILLER) INCLUDE, AS A PROFICIENCY REQUIREMENT, DEMOLITION ACTIVITIES THROUGH THE USE OF EXPLOSIVES. MAY MEMBERS OCCUPYING SUCH ASSIGNMENTS BE CONSIDERED AS PERFORMING DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES AS A "PRIMARY DUTY ASSIGNMENT" WITHIN THE MEANING OF SECTION 204 (A) (7), CAREER COMPENSATION ACT OF 1949 (63 STAT. 809, 810) AND SECTION 9 (B) EXECUTIVE ORDER 10152, AS AMENDED BY EXECUTIVE ORDER 10618, SUPRA?

IT IS STATED IN COMMITTEE ACTION NO. 260 THAT:

VARIOUS MILITARY OCCUPATIONAL SPECIALTIES INCLUDE, AS A PROFICIENCY REQUIREMENT, DEMOLITION ACTIVITIES THROUGH THE USE OF EXPLOSIVES. FOR EXAMPLE, THE FOLLOWING POSITIONS IN THE ARMY CORPS OF ENGINEERS INCLUDE SUCH A REQUIREMENT:

CHART

MOS TITLE

120---------------------------------1PIONEER

121---------------------------------1COMBAT ENGINEER

516---------------------------------1QUARRYMAN

525---------------------------------1FIREFIGHTER

614---------------------------------1WELL DRILLER

UPON ASSIGNMENT TO A UNIT, IN ONE OF THE MOS LISTED ABOVE, THE INDIVIDUAL MUST TRAIN IN THE USE OF EXPLOSIVES AS WELL AS IN OTHER SUBJECTS FOR THE MAINTENANCE OF PROFICIENCY IN THE ASSIGNED MOS. IT IS NORMAL IN ENGINEER UNIT TRAINING TO AUTHORIZE THE USE OF EQUIPMENT AND SKILLS IN THE CONSTRUCTION OF WORTHWHILE SEMI-PERMANENT OR PERMANENT PROJECTS. IN THE ACCOMPLISHMENT OF TRAINING PROJECTS, SUCH AS CONSTRUCTION OF ROADS, CONSTRUCTION OF AIRFIELDS, QUARRY OPERATIONS, TIMBER CLEARANCE OPERATIONS, PORT AND WHARF CONSTRUCTION, ETC., IT OFTEN BECOMES NECESSARY TO UTILIZE EXPLOSIVES. WHEN THE USE OF EXPLOSIVES IS NECESSARY, THE ENGINEER UNIT COMMANDER WILL ORDINARILY TAKE ADVANTAGE OF THE OPPORTUNITY FOR THE PURPOSE OF INSTRUCTING AUTHORIZED PERSONNEL IN THE USE OF EXPLOSIVES. THE PRINCIPLES APPLIED TO THE USE OF EXPLOSIVES FOR DEMOLITION PURPOSES ARE ESSENTIALLY THE SAME FOR UNDERWATER ACTIVITIES AS ELSEWHERE. FOR THE MAINTENANCE OF PROFICIENCY IN THE USE OF EXPLOSIVES, IT IS PREFERRED THAT THE TRAINING BE CONDUCTED ON DRY LAND UNDER THE SAFEST CONDITIONS POSSIBLE. PERSONNEL ARE TAUGHT HOW TO SET UNDERWATER DEMOLITION CHARGES. IT IS EXPECTED THAT IN ANY AMPHIBIOUS OPERATION, TO INCLUDE RIVER CROSSING, COMBAT ENGINEERS WILL UTILIZE EXPLOSIVES IN THE PREPARATION OR CLEARANCE OF LAND OBSTACLES ON BEACHES OR ELSEWHERE IN THE COMBAT ZONE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AS AMENDED, 37 U.S.C. 235 (A), 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 FOR SUCH DUTY;

EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10618, DATED JUNE 28, 1955, PROVIDES IN SECTION 9 (B) THAT:

(B) THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY ASSIGNMENT (1) DEMOLISH BY THE USE OF EXPLOSIVES UNDERWATER OBJECTS, OBSTACLES, OR EXPLOSIVES, OR RECOVER AND RENDER HARMLESS, BY DISARMING OR DEMOLITION, EXPLOSIVES WHICH HAVE FAILED TO FUNCTION AS INTENDED OR WHICH HAVE BECOME A POTENTIAL HAZARD; (2) PARTICIPATE AS STUDENTS OR INSTRUCTORS IN INSTRUCTIONAL TRAINING, INCLUDING THAT IN THE FIELD OR FLEET, FOR THE DUTIES DESCRIBED IN CLAUSE (1) HEREOF, PROVIDED THAT LIVE EXPLOSIVES ARE USED IN SUCH TRAINING; (3) PARTICIPATE IN PROFICIENCY TRAINING, INCLUDING THAT IN THE FIELD OR FLEET, FOR THE MAINTENANCE OF SKILL IN THE DUTIES, DESCRIBED IN CLAUSE (1) HEREOF, PROVIDED THAT LIVE EXPLOSIVES ARE USED IN SUCH TRAINING; OR (4) EXPERIMENT WITH OR DEVELOP TOOLS, EQUIPMENT, OR PROCEDURES FOR THE DEMOLITION AND RENDERING HARMLESS OF EXPLOSIVES, PROVIDED THAT LIVE EXPLOSIVES ARE USED.

ALSO, SEE PARAGRAPH 2-32, ARMY REGULATIONS 37-104; PARAGRAPH 1044112, VOLUME 4, NAVY COMPTROLLER MANUAL; AND PARAGRAPH 11182, AIR FORCE MANUAL 173-20.

THE LEGISLATIVE HISTORY OF SECTION 204 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 (A) (7), INDICATES THAT INCENTIVE PAY FOR DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES AS THERE AUTHORIZED WAS INTENDED PRIMARILY TO BENEFIT THE UNDERWATER DEMOLITION TEAMS OF THE NAVY. SEE IN THIS CONNECTION THE DISCUSSION APPEARING ON PAGE 1608 OF THE HEARINGS BEFORE THE SUBCOMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2553, WHICH IS QUOTED IN COMMITTEE ACTION NO. 260. VIEWED IN THAT LIGHT, THE PHRASE "DEMOLISH BY THE USE OF EXPLOSIVES UNDER-WATER OBJECTS, OBSTACLES, OR EXPLOSIVES" USED IN SECTION 9 (B) OF EXECUTIVE ORDER NO. 10618, MUST BE CONSTRUED AS MEANING THE DEMOLITION BY THE USE OF EXPLOSIVES OF UNDERWATER OBJECTS, UNDERWATER OBSTACLES, OR UNDERWATER EXPLOSIVES. IN OTHER WORDS, IT APPEARS THAT THE WORD "UNDER-WATER" MODIFIES NOT ONLY THE WORD "OBJECTS" BUT ALSO MODIFIES THE WORDS "OBSTACLES" AND "EXPLOSIVES.' QUESTION 1 IS ANSWERED ACCORDINGLY.

IT IS APPARENT FROM THE STATUTE AND THE REGULATIONS THAT INCENTIVE PAY FOR DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES IS NOT AUTHORIZED TO ALL MEMBERS OF THE UNIFORMED SERVICES WHO ACTUALLY HANDLE AND USE EXPLOSIVES. ON THE CONTRARY, SUCH PAY IS LIMITED TO THOSE ASSIGNED TO DUTY INVOLVING DEMOLITION OF EXPLOSIVES AND CERTAIN UNDERWATER OBJECTS IN ADDITION TO EXPLOSIVES, AND WHO PERFORM SUCH DUTY AS A PRIMARY DUTY OR ARE UNDERGOING TRAINING FOR SUCH DUTY. UNLESS ALL ESSENTIAL ELEMENTS PRESCRIBED BY THE LAW AND REGULATIONS ARE PRESENT, IT CANNOT BE SAID THAT INDIVIDUALS HANDLING EXPLOSIVE ORDNANCE, NO MATTER HOW HAZARDOUS THEIR SITUATION MAY BE, ARE PERFORMING DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS.

IT APPEARS THAT VARIOUS MILITARY OCCUPATIONAL SPECIALTIES INCLUDE, AS A PROFICIENCY REQUIREMENT, SOME DEMOLITION ACTIVITIES THROUGH THE USE OF EXPLOSIVES. FOR EXAMPLE, IT WOULD NOT SEEM TO BE UNUSUAL FOR SOME MEMBERS OF THE UNIFORMED SERVICES WHO ARE ASSIGNED TO DUTY WITH ENGINEER UNITS TO RECEIVE TRAINING IN SEVERAL SKILLS, INCLUDING THE USE AND HANDLING OF EXPLOSIVES. WHILE SUCH MEMBERS MAY PERFORM DUTY UNDER EXTREMELY HAZARDOUS CONDITIONS, IT DOES NOT NECESSARILY FOLLOW THAT IF, AS A PART OF SUCH TRAINING, THEY ARE TAUGHT HOW TO SET UNDERWATER DEMOLITION CHARGES, SUCH TRAINING DUTY IS A PRIMARY DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF THE LAW AND REGULATIONS. HENCE, IN THE ABSENCE OF A CLEAR SHOWING THAT THE INDIVIDUALS REFERRED TO IN COMMITTEE ACTION NO. 260 ACTUALLY PERFORM DUTY UNDER CONDITIONS MEETING ALL THE STIPULATED REQUIREMENTS OF THE LAW AND REGULATIONS, THEY MAY NOT BE REGARDED AS HAVING PERFORMED "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" AS A PRIMARY DUTY ASSIGNMENT. COMPARE 34 COMP. GEN. 173. QUESTION 2 IS ANSWERED ACCORDINGLY.