B-147915, FEB. 19, 1962

B-147915: Feb 19, 1962

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PINTO: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. YOU WERE GRANTED 30 DAYS COMPASSIONATE LEAVE TO THE CONTINENTAL UNITED STATES EFFECTIVE JULY 12. IT APPEARS THAT WHILE YOU WERE ON LEAVE YOU APPLIED FOR AND OBTAINED A 30-DAY EXTENSION OF LEAVE. YOU WERE TRANSFERRED FROM THE 33RD ORDNANCE COMPANY (C AND C) AT YOUR OVERSEAS STATION AND REASSIGNED TO THE 69TH ORDNANCE DETACHMENT (ED). AT WHICH STATION YOU THEN APPARENTLY WERE TEMPORARILY ATTACHED. THE RECORD INDICATES FURTHER THAT YOU PERFORMED DEMOLITION DUTY IN JULY 1961 AT YOUR PERMANENT DUTY STATION PRIOR TO DEPARTURE ON LEAVE AND THAT YOU WERE PAID DEMOLITION PAY FOR THAT MONTH. IT APPEARS THAT WHILE YOU WERE ON EXTENDED LEAVE YOU REPORTED AT THE 60TH ORDNANCE DETACHMENT.

B-147915, FEB. 19, 1962

TO DAVID B. PINTO:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1961, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 20, 1961, WHICH DISALLOWED YOUR CLAIM FOR DEMOLITION PAY FOR THE MONTHS OF AUGUST AND SEPTEMBER 1961.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 124, JULY 11, 1961, 8TH ORDNANCE BATTALION (M AND S), APO 165, YOU WERE GRANTED 30 DAYS COMPASSIONATE LEAVE TO THE CONTINENTAL UNITED STATES EFFECTIVE JULY 12, 1961, WITH LEAVE ADDRESS IN PHILADELPHIA, PENNSYLVANIA. IT APPEARS THAT WHILE YOU WERE ON LEAVE YOU APPLIED FOR AND OBTAINED A 30-DAY EXTENSION OF LEAVE, LATER EXTENDED FOR AN ADDITIONAL 15 DAYS. BY SPECIAL ORDERS NO. 188, OCTOBER 3, 1961, HEADQUARTERS, 8TH ORDNANCE BATTALION, YOU WERE TRANSFERRED FROM THE 33RD ORDNANCE COMPANY (C AND C) AT YOUR OVERSEAS STATION AND REASSIGNED TO THE 69TH ORDNANCE DETACHMENT (ED), VALLEY FORGE GENERAL HOSPITAL, PHOENIXVILLE, PENNSYLVANIA, AT WHICH STATION YOU THEN APPARENTLY WERE TEMPORARILY ATTACHED. THE RECORD INDICATES FURTHER THAT YOU PERFORMED DEMOLITION DUTY IN JULY 1961 AT YOUR PERMANENT DUTY STATION PRIOR TO DEPARTURE ON LEAVE AND THAT YOU WERE PAID DEMOLITION PAY FOR THAT MONTH. IT APPEARS THAT WHILE YOU WERE ON EXTENDED LEAVE YOU REPORTED AT THE 60TH ORDNANCE DETACHMENT, FORT DIX, NEW JERSEY, TO QUALIFY FOR DEMOLITION DUTY PAY DURING THE MONTHS OF AUGUST AND SEPTEMBER 1961. YOUR CLAIM FOR DEMOLITION PAY FOR THESE MONTHS WAS DISALLOWED FOR THE REASON THAT UPON A PERMANENT CHANGE OF STATION OR EN ROUTE TO OR RETURNING FROM FOREIGN SERVICE, ENTITLEMENT TO INCENTIVE PAY CONTINUES ONLY THROUGH DATE OF DEPARTURE FROM THE OLD STATION AND THAT ENTITLEMENT AT THE NEW STATION IS DEPENDENT UPON ORDERS ISSUED AND DUTIES PERFORMED AT THE NEW STATION.

IN YOUR LETTER YOU STATE THAT YOU DEPARTED YOUR OVERSEAS STATION, WHERE YOU WERE UNDER ORDERS AUTHORIZING DEMOLITION DUTY PAY, IN A COMPASSIONATE LEAVE STATUS WITH RETURN TO YOUR UNIT CONTEMPLATED, AND THAT YOU HAD TO REQUEST EXTENSION OF SUCH LEAVE UNTIL SEPTEMBER 26, 1961. ALSO, YOU STATE THAT UPON REPORTING TO FORT DIX, NEW JERSEY, ON SEPTEMBER 27, 1961, APPARENTLY WHILE EN ROUTE TO YOUR OVERSEAS STATION, YOU RECEIVED A TWX MESSAGE WHICH REASSIGNED YOU TO YOUR PRESENT STATION. YOU BELIEVE THAT SINCE YOU PERFORMED DEMOLITION DUTY IN THE UNITED STATES WHILE IN A LEAVE STATUS AND WHILE STILL ATTACHED TO YOUR OLD STATION, YOU QUALIFIED FOR DEMOLITION PAY IN ACCORDANCE WITH APPLICABLE REGULATIONS.

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

"/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, 15 F.R. 5489, AS AMENDED BY EXECUTIVE ORDER NO. 10618, DATED JUNE 28, 1955, 20 F.R. 4671, PROVIDES IN SECTION 2 THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, ANY MEMBER OF THE UNIFORMED SERVICES, INCLUDING MEMBERS ASSIGNED TO SPECIAL, ADMINISTRATIVE, OR SCHOOL DUTIES, MAY BE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY. SECTION 9 (B) PROVIDES IN PART THAT THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSIDERED TO MEAN DUTY OF THE SEVERAL TYPES THEREIN DESIGNATED PERFORMED BY MEMBERS "PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY ASSIGNMENT.' SECTION 11 PROVIDES THAT MEMBERS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY SHALL, UPON COMPLIANCE WITH THE REQUIREMENTS OF THE REGULATIONS, BE ENTITLED TO RECEIVE INCENTIVE PAY DURING AUTHORIZED LEAVES OF ABSENCE, AND SECTION 12 AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUPPLEMENTAL REGULATIONS NOT INCONSISTENT WITH THE REGULATIONS SET FORTH IN THE EXECUTIVE ORDER AS DEEMED NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PURSUANT THERETO, PARAGRAPH 2-37, ARMY REGULATIONS 37-104, PROVIDES THAT IF A MEMBER IS OTHERWISE ENTITLED TO INCENTIVE PAY FOR DEMOLITION DUTY AND ACTUALLY PERFORMS SUCH DUTY DURING A PORTION OF A MONTH INVOLVED, CONDITIONS SUCH AS LEAVE WHILE IN A PAY STATUS WILL NOT AFFECT HIS ELIGIBILITY FOR SUCH PAY FOR THAT MONTH. IT PROVIDES FURTHER THAT UPON PERMANENT CHANGE OF STATION EN ROUTE TO OR RETURNING FROM FOREIGN SERVICE, A MEMBER'S ENTITLEMENT CONTINUES ONLY TO DATE OF DEPARTURE FROM THE OLD STATION, AND THAT ENTITLEMENT AT THE NEW STATION IS DEPENDENT UPON ORDERS ISSUED AND DUTY PERFORMED AT THE NEW STATION.

THE COURTS HAVE DEFINED LEAVE AS A PERIOD OF RESPITE FROM MILITARY DUTIES GRANTED FOR THE MEMBER'S SOLE ACCOMMODATION, DURING WHICH TIME HE IS FREE TO TRAVEL WHERE HE CHOOSES, EMPLOY HIS TIME AS HE PLEASES, OR SURRENDER HIS LEAVE AS HE SO DESIRES, THE ONLY REQUIREMENT BEING THAT HE REPORT AT HIS PROPER STATION AT THE EXPIRATION OF HIS LEAVE. SEE 36 COMP. GEN. 257 AND CASES CITED THEREIN. THE EXECUTIVE ORDER REFERRED TO ABOVE PROVIDES THAT MEMBERS MAY BE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND THAT FOR PURPOSES OF QUALIFICATION FOR DEMOLITION PAY DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES SHALL BE CONSTRUED AS DUTY PERFORMED BY MEMBERS PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY ASSIGNMENT. SINCE, DURING THE TIME YOU WERE ON LEAVE OF ABSENCE FROM YOUR OVERSEAS STATION WHILE YOU WERE IN THE UNITED STATES, YOU WERE FREE TO EMPLOY YOUR TIME AS YOU PLEASED AND YOU WERE NOT SUBJECT TO ANY RESPONSIBILITIES INVOLVING THE PERFORMANCE OF DEMOLITION DUTY, THE DEMOLITION DUTY WITH THE 60TH ORDNANCE DETACHMENT STATION APPEARS TO HAVE BEEN PERFORMED BY YOU AS A VOLUNTEER RATHER THAN IN THE EXERCISE OF YOUR PRIMARY DUTY ASSIGNMENT WHICH, UNTIL THE EFFECTIVE DATE OF THE ORDERS OF OCTOBER 3, 1961, WAS WITH THE 33RD ORDNANCE COMPANY (C AND C) AND MAY NOT BE CONSIDERED AS DUTY PERFORMED AS A PRIMARY DUTY PURSUANT TO COMPETENT ORDERS WITHIN THE PURVIEW OF THE EXECUTIVE ORDER REFERRED TO ABOVE.

SINCE YOU DID NOT PERFORM DEMOLITION DUTY AS A PRIMARY DUTY ASSIGNMENT PURSUANT TO COMPETENT ORDERS DURING THE MONTHS OF AUGUST AND SEPTEMBER 1961, YOU WERE NOT ENTITLED TO DEMOLITION PAY FOR THESE MONTHS. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.