B-150823, MAR. 18, 1963

B-150823, MAR. 18, 1963

TO SERGEANT WILLIAM A. HUBBARD, RA 13 293 044:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29, 1963, CONCERNING YOUR CLAIM FOR PAYMENT OF PROFICIENCY PAY BELIEVED TO BE DUE YOU FOR THE PERIOD JUNE 12, 1961, THROUGH NOVEMBER 1961. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT WAS NOT SUPPORTED BY ORDERS SHOWING YOUR QUALIFICATION FOR PROFICIENCY PAY AS PROVIDED IN PARAGRAPH 6A OF ARMY REGULATIONS 611-208.

IN CORRESPONDENCE SUBMITTED WITH YOUR ORIGINAL CLAIM YOU STATED THAT YOU INITIALLY WERE AWARDED PROFICIENCY PAY (P-1) IN MOS (MILITARY OCCUPATIONAL SPECIALTY) 716.1 AS A RESULT OF TESTS TAKEN IN MAY 1960; THAT DURING THE MONTH OF JUNE 1961 YOU REQUESTED IN WRITING THAT YOUR PRIMARY MOS 716.1 BE CHANGED TO MOS 717.1. YOUR P-1 PROFICIENCY RATING WAS WITHDRAWN BY SPECIAL ORDER NO. 99 DATED JUNE 12, 1961, HEADQUARTERS, 519TH MILITARY INTELLIGENCE BATTALION (FIELD ARMY), FORT BRAGG, NORTH CAROLINA. YOU STATED FURTHER THAT IN MAY 1961 YOU WERE AGAIN TESTED IN MOS 716.1 AND IN AUGUST OF THAT YEAR YOU WERE TESTED IN MOS 717.1; THAT SUCCESSFUL RESULTS OF THE MAY TESTING (716.1) WERE RECEIVED BY YOUR PERSONNEL SECTION IN SEPTEMBER 1961 AND RESULTS OF THE 717.1 TESTING WERE RECEIVED IN NOVEMBER 1961. YOUR CLAIM COVERS THE PERIOD BETWEEN DISCONTINUANCE OF PROFICIENCY PAY IN JUNE 1961 AND NOVEMBER 1961.

YOU STATE FURTHER THAT PROFICIENCY PAY IS INTENDED TO PROVIDE RECOGNITION FOR THOSE INDIVIDUALS WHO HAVE DISPLAYED SPECIAL PROFICIENCY IN A MILITARY SKILL AND "NOT AS A SUBSTITUTE FOR APPOINTMENT; " THAT IN VIEW OF THE OBJECTIVES OF THE PROFICIENCY PAY PROGRAM AND SINCE YOUR CHANGE OF MOS IN JUNE 1961 WAS AN ENDEAVOR "TO RELIEVE COMPRESSION IN AN OVERAGE MOS (716) AND REDUCE THE SHORTAGE IN MOS 717" AS WAS INDICATED IN THE DEPARTMENT OF THE ARMY CIRCULAR 611 15, YOU FEEL THAT BEING FORCED TO WAIVE PROFICIENCY PAY (YOU STATE THAT MISINTERPRETATION OF THE REGULATIONS WAS THE REASON FOR WAIVER) DEFEATS THE PURPOSE AND INTENT OF THE PROGRAM. YOU STATE FURTHER THAT ON AUGUST 1, 1961, YOU WERE EVALUATED IN MOS 717.1 AND THE RESULTS WERE AVAILABLE IN NOVEMBER 1961, AND THAT YOUR QUESTION IS WHETHER YOU SHOULD NOT HAVE CONTINUED TO RECEIVE PROFICIENCY PAY AS A RESULT OF PASSING THE TEST IN MOS 716.1 UNTIL THE TIME THE RESULTS OF THE AUGUST 1, 1961, EVALUATION IN MOS 717.1 WERE RELEASED.

PAYMENT OF PROFICIENCY PAY TO AN ENLISTED MEMBER OF THE UNIFORMED SERVICES IS AUTHORIZED BY SECTION 209 OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY THE ACT OF MAY 20, 1958, 72 STAT. 125, 37 U.S.C. 240 (NOW 37 U.S.C. 307), WHICH PROVIDES THAT THE SECTION SHALL BE ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE. DEPARTMENT OF DEFENSE DIRECTIVE NO. 1340.2, DATED SEPTEMBER 27, 1958, PROVIDES AT SUBSECTION 6.4, AS FOLLOWS:

"6. MAINTENANCE AND TERMINATION OF PROFICIENCY PAY---

"D. IF A MEMBER RECEIVING PROFICIENCY PAY IS RECLASSIFIED TO A DIFFERENT MILITARY SKILL, HIS PROFICIENCY PAY WILL BE TERMINATED UNLESS; (1) THE RECLASSIFICATION IS A PROMOTION UNDER PARAGRAPH F; OR (2) HE IS IMMEDIATELY DESIGNATED AS ELIGIBLE FOR SUCH PAY IN THAT SKILL. HE MAY BE SO DESIGNATED UNDER CLAUSE (2) WHILE HE IS ATTENDING A COURSE OF INSTRUCTION IN THE NEW SKILL, IF THAT SKILL IS A CRITICAL MILITARY SKILL AND THE RECLASSIFICATION IS IN THE INTEREST OF THE SERVICE CONCERNED.'

SUBSECTION 1 OF SECTION VI, OF THAT DIRECTIVE, PROVIDES:

"VI. RESPONSIBILITY

1. THE SECRETARY OF EACH MILITARY DEPARTMENT IS RESPONSIBLE FOR THE ADMINISTRATION OF THE PROFICIENCY PAY PROGRAM FOR THE SERVICES UNDER HIS JURISDICTION.'

PURSUANT TO SUCH AUTHORITY THE SECRETARY OF THE ARMY PROMULGATED PARAGRAPH 7B (4) OF ARMY REGULATIONS 611-208, DATED AUGUST 22, 1960, AS FOLLOWS:

"B. WITHDRAWAL. WITHDRAWAL OF P1 OR P2 PROFICIENCY RATINGS TERMINATES THE INDIVIDUAL'S ELIGIBILITY TO RECEIVE PROFICIENCY PAY UNTIL THE INDIVIDUAL REQUALIFIES DURING A SUBSEQUENT EVALUATION PERIOD. PROFICIENCY RATINGS WILL NOT BE AWARDED TO INDIVIDUALS WHEN P2 RATINGS ARE WITHDRAWN. PROFICIENCY RATINGS WILL BE WITHDRAWN BY AN AWARDING AUTHORITY WHEN ANY OF THE FOLLOWING CONDITIONS APPLY:

"/4) THE INDIVIDUAL WAIVES HIS PROFICIENCY RATING IN WRITING. * * *.'

IT WILL BE SEEN THAT THE RIGHT TO RECEIVE PROFICIENCY PAY IS DEPENDENT UPON WHETHER A MEMBER CONTINUES TO BE DESIGNATED AND ASSIGNED A PROFICIENCY RATING OR IS AGAIN DESIGNATED AS HAVING SPECIAL PROFICIENCY IN THE SAME OR ANOTHER MILITARY SKILL AND IS AGAIN ASSIGNED TO A PROFICIENCY RATING, SUBJECT, OF COURSE, TO THE PROVISIONS OF APPLICABLE REGULATIONS.

APPARENTLY YOUR ENTITLEMENT TO PROFICIENCY PAY WAS TERMINATED PURSUANT TO THE ABOVE DIRECTIVE AND REGULATIONS BECAUSE OF A CHANGE IN YOUR MILITARY OCCUPATIONAL SPECIALTY AND YOUR HAVING WAIVED SUCH PAY IN WRITING. TECHNICAL QUALIFICATION FOR PROFICIENCY PAY REQUIRES, IN ADDITION TO PASSING THE APPLICABLE SKILL TESTS, AN OFFICIAL DESIGNATION AS SUCH. WHEN YOUR DESIGNATION WAS WITHDRAWN IN JUNE 1961 THE REQUIREMENTS OF THE REGULATION WERE NOT MET AND NO RIGHT TO PAYMENT OF PROFICIENCY PAY UNDER THE LAW ACCRUED TO YOU UNLESS YOU WERE AGAIN DESIGNATED TO RECEIVE SUCH PAY.

YOUR RIGHT TO RECEIVE PROFICIENCY PAY MUST BE DETERMINED ON THE BASIS OF THE PROVISIONS OF LAW AND REGULATIONS APPLICABLE TO YOUR CLAIM AND PAYMENT ON A BASIS NOT RECOGNIZED BY THOSE PROVISIONS IS NOT AUTHORIZED.