B-145760, MAY 25, 1961, 40 COMP. GEN. 642

B-145760: May 25, 1961

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PARTICULARLY WHEN SUCH PAY IS AUTHORIZED ONLY UPON COMPLIANCE WITH SPECIFIC PROVISIONS OF LAW OR REGULATION. 1961: REFERENCE IS MADE TO YOUR 3D ENDORSEMENT DATED APRIL 5. THE REQUEST WAS FORWARDED TO OUR OFFICE BY 4TH ENDORSEMENT DATED MAY 1. IT IS STATED THAT CHIEF WARRANT OFFICER HARVEY WAS PAID DEMOLITION PAY AT THE RATE OF $110 PER MONTH FOR THE PERIOD FROM NOVEMBER 1959 THROUGH SEPTEMBER 1960 IN ACCORDANCE WITH ORDERS ISSUED BY HEADQUARTERS. SINCE THE ORDERS ARE NOT CONSIDERED COMPETENT ORDERS AS DEFINED IN PARAGRAPH 2-33. 000 WAS CREATED AND THAT THE INDEBTEDNESS CURRENTLY IS BEING COLLECTED AT THE RATE OF $50 PER MONTH. IT IS ADMINISTRATIVELY INDICATED THAT. THERE IS NOTHING TO SUGGEST THAT THE OFFICER DID NOT BELIEVE THAT THE HAZARDOUS DUTY WAS BEING PERFORMED UNDER VALID ORDERS.

B-145760, MAY 25, 1961, 40 COMP. GEN. 642

MILITARY PERSONNEL - ADDITIONAL PAY - RETENTION UNDER DE FACTO RULE - DEMOLITION DUTY THE DE FACTO RULE WHICH PERMITS RETENTION OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES RECEIVED BY MEMBERS OF THE UNIFORMED SERVICES IN GOOD FAITH WHILE IN A DE FACTO STATUS MAY NOT BE EXTENDED TO PERMIT RETENTION OF ADDITIONAL OF SPECIAL PAY RECEIVED IN GOOD FAITH BUT CONTRARY TO THE REQUIREMENTS OF STATUTORY REGULATIONS, PARTICULARLY WHEN SUCH PAY IS AUTHORIZED ONLY UPON COMPLIANCE WITH SPECIFIC PROVISIONS OF LAW OR REGULATION; THEREFORE, DEMOLITION DUTY PAY RECEIVED IN GOOD FAITH BUT NOT PURSUANT TO COMPETENT ORDERS ASSIGNING THE MEMBER TO DEMOLITION DUTY, AS REQUIRED BY THE REGULATIONS ISSUED PURSUANT TO SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235, MAY NOT BE RETAINED UNDER THE DE FACTO RULE.

TO MAJOR R. E. O-BANNON, DEPARTMENT OF THE ARMY, MAY 25, 1961:

REFERENCE IS MADE TO YOUR 3D ENDORSEMENT DATED APRIL 5, 1961, TCTTC/FINAL -EXAM (2 DEC. 60), REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER FORWARDED THEREWITH STATED IN FAVOR OF CHIEF WARRANT OFFICER KENNETH L. HARVEY, W2145059, IN THE AMOUNT OF $300, REPRESENTING DEDUCTIONS OF $50 PER MONTH MADE FROM HIS PAY FROM OCTOBER 1960 THROUGH MARCH 1961, AND APPLIED IN PARTIAL LIQUIDATION OF AN INDEBTEDNESS RESULTING FROM ERRONEOUS PAYMENTS OF DEMOLITION PAY FOR THE PERIOD FROM NOVEMBER 1959 THROUGH SEPTEMBER 1960. THE REQUEST WAS FORWARDED TO OUR OFFICE BY 4TH ENDORSEMENT DATED MAY 1, 1961, HAVING BEEN ALLOCATED D.O. NO. A-575 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT CHIEF WARRANT OFFICER HARVEY WAS PAID DEMOLITION PAY AT THE RATE OF $110 PER MONTH FOR THE PERIOD FROM NOVEMBER 1959 THROUGH SEPTEMBER 1960 IN ACCORDANCE WITH ORDERS ISSUED BY HEADQUARTERS, 159TH TRANSPORTATION BATTALION, FORT EUSTIS, VIRGINIA, AND THAT, SINCE THE ORDERS ARE NOT CONSIDERED COMPETENT ORDERS AS DEFINED IN PARAGRAPH 2-33, ARMY REGULATIONS NO. 37-104, AN INDEBTEDNESS OF $1,000 WAS CREATED AND THAT THE INDEBTEDNESS CURRENTLY IS BEING COLLECTED AT THE RATE OF $50 PER MONTH, THE TOTAL COLLECTED DURING THE PERIOD FROM OCTOBER 1960 THROUGH MARCH 1961 AMOUNTING TO $300. IT IS ADMINISTRATIVELY INDICATED THAT, FROM THE INFORMATION FURNISHED, THERE IS NOTHING TO SUGGEST THAT THE OFFICER DID NOT BELIEVE THAT THE HAZARDOUS DUTY WAS BEING PERFORMED UNDER VALID ORDERS, AND THAT IT APPEARS THAT THE MEMBER RECEIVED PAYMENT FOR THE DEMOLITION DUTY IN GOOD FAITH. ON SUCH BASIS, DECISION IS REQUESTED AS TO WHETHER OR NOT THE MEMBER PERFORMED THE HAZARDOUS DUTY IN A DE FACTO STATUS AND WOULD BE ENTITLED TO A REFUND OF THE AMOUNTS COLLECTED AND TO SUSPENSION OF THE UNCOLLECTED BALANCE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810, AS AMENDED, 37 U.S.C. 235, READS IN PERTINENT PARTS AS FOLLOWS:

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:

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 UNDER- WATER 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.

SECTION 12 OF EXECUTIVE ORDER NO. 10152 PROVIDES:

THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORMED FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.

THE APPLICABLE REGULATIONS RELATING TO "1ORDERS" ARE CONTAINED IN PARAGRAPH 2-33 OF ARMY REGULATIONS NO. 37-104, AS AMENDED BY CHANGE NO. 7, DATED OCTOBER 31, 1958, AND PROVIDE IN PERTINENT PART AS FOLLOWS:

A. COMPETENT ORDERS. THE TERM "COMPETENT ORDERS" WILL MEAN ORDERS ISSUED BY THE SECRETARY CONCERNED OR SUCH OFFICER OR OFFICERS AS THE SECRETARY MAY DESIGNATE, TO MEMBERS OF THEIR RESPECTIVE SERVICES, OR TO MEMBERS OF OTHER SERVICES WHEN SUCH LATTER MEMBERS ARE PERFORMING DUTY WITH A SERVICE OTHER THAN THEIR OWN.

B. DELEGATION OF AUTHORITY TO ISSUE ORDERS. AUTHORITY TO ISSUE ORDERS REQUIRING A MEMBER TO PERFORM DEMOLITION DUTY, INCLUDING TRAINING FOR SUCH DUTY, IS DELEGATED TO THE FOLLOWING:

2. COMMANDERS OF MAJOR COMMANDS; CHIEF OF ENGINEERS; CHIEF OF ORDNANCE; CHIEF CHEMICAL FFICER; CHIEF OF TRANSPORTATION; COMMANDANTS OF THE SCHOOLS OF THE RESPECTIVE SERVICES; COMMANDING OFFICERS OF INSTALLATION WHERE SUCH SCHOOLS ARE LOCATED.

IT APPEARS THAT SUCH REGULATIONS, WITHOUT CHANGE, ARE IN EFFECT AT THE PRESENT TIME.

THE CITED STATUTORY PROVISIONS, THE EXECUTIVE ORDERS AND THE ARMY REGULATIONS DO NOT AUTHORIZE INCENTIVE PAY FOR DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES TO ALL MEMBERS OF THE UNIFORMED SERVICES WHO ACTUALLY HANDLED EXPLOSIVES. ON THE CONTRARY, SUCH PAY MAY BE PAID ONLY TO THOSE ASSIGNED TO DEMOLITION DUTY BY COMPETENT ORDERS AND WHO PERFORM SUCH DUTY AS A PRIMARY DUTY, OR ARE UNDERGOING TRAINING FOR SUCH DUTY EITHER AS INSTRUCTORS OR STUDENTS AS A PART OF A RECOGNIZED COURSE OF INSTRUCTIONS IN SUCH DUTY. THUS, ONE OF THE CONDITIONS FOR THE LAWFUL PAYMENT OF SUCH INCENTIVE PAY IS THAT THE MEMBER WAS "REQUIRED BY COMPONENT ORDERS" TO PERFORM THE DUTY INVOLVED. IT SEEMS ADMITTED THAT "COMPETENT ORDERS" WERE NOT ISSUED IN THE PRESENT CASE. HENCE, THE PAYMENTS WERE IMPROPER.

WE HAVE RECOGNIZED IN CERTAIN INSTANCES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO PAY AND ALLOWANCES AND OTHER BENEFITS INCIDENT TO A DE FACTO STATUS. SEE, GENERALLY, 31 COMP. GEN. 335; 33 ID. 475; AND 34 ID. 132, 263 AND 266. IT IS OUR VIEW, HOWEVER, THAT THERE IS NO BASIS FOR THE EXTENSION OF THE DE FACTO RULE TO INCLUDE THE PAYMENT OF ADDITIONAL PAY OR SPECIAL PAY, PARTICULARLY WHEN THE PAYMENT OF SUCH PAY IS AUTHORIZED ONLY WHEN COMPLIANCE WITH CERTAIN SPECIFIC PROVISIONS OF LAW OR REGULATIONS WHICH HAVE THE EFFECT OF LAW IS ESTABLISHED. COMPARE 32 COMP. GEN. 397. THE REGULATIONS INVOLVED THE THE PRESENT CASE WERE ISSUE PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949 (SEE 31 COMP. GEN. 436, 437) AND THE REQUIREMENTS OF THOSE REGULATIONS HAVE NOT BEEN MADE.

ACCORDINGLY, THE PROPOSES PAYMENT IS NOT AUTHORIZED AND THE VOUCHER, TOGETHER WITH ACCOMPANYING ENDORSEMENTS AND ENCLOSURES, WILL BE RETAINED HERE.