B-151266, MAY 8, 1963

B-151266, MAY 8, 1963

TO MR. PETER J. SNAKE:

REFERENCE IS MADE TO A LETTER WRITTEN ON YOUR BEHALF BY MR. FRANK J. BATES, VETERANS SERVICE OFFICER, FREEBORN COUNTY, MINNESOTA, REQUESTING RECONSIDERATION OF THAT PART OF OUR SETTLEMENT OF DECEMBER 29, 1961, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR DEMOLITION DUTY FOR THE MONTHS OF NOVEMBER 1950 AND FEBRUARY 1951 THROUGH JULY 1951, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE ARMY.

IT IS REPORTED BY THE DEPARTMENT OF THE ARMY THAT THE MORNING REPORTS AND SPECIAL ORDERS OF THE ORGANIZATIONS TO WHICH YOU WERE ATTACHED DO NOT SHOW YOUR ASSIGNMENT TO DEMOLITION DUTY AND THAT NO OTHER RECORD IS AVAILABLE TO SUBSTANTIATE YOUR CLAIM FOR INCENTIVE PAY FOR SUCH DUTY.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 809, PROVIDES THAT, 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 INVOLVING THE DEMOLITION OF EXPLOSIVES AS A PRIMARY DUTY, INCLUDING TRAINING FOR SUCH DUTY, WHEN SUCH DUTY IS REQUIRED BY COMPETENT ORDERS. THE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT TO SUCH STATUTORY AUTHORITY ARE CONTAINED IN EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950. SECTION 9 (B) OF THE EXECUTIVE ORDER PROVIDES:

"/B) THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS, INCLUDING MEMBERS IN TRAINING FOR SUCH DUTIES, WHO, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY, DEMOLISH BY THE USE OF EXPLOSIVES UNDER-WATER OBJECTS, OBSTACLES, OR EXPLOSIVES, OR RECOVER AND RENDER HARMLESS, BY DISARMING OR DEMOLITION, EXPLOSIVES WHICH, HAVING BEEN PROJECTED, LAUNCHED, DROPPED, OR LAID IN A NORMAL MANNER, HAVE FAILED TO EXPLODE AS INTENDED.'

SECTION 12 OF THE EXECUTIVE ORDER PROVIDES THAT THE SECRETARIES CONCERNED ARE AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT WITH THE EXECUTIVE ORDER AS THEY MAY DEEM NECESSARY OR DESIRABLE. PARAGRAPH 2 OF THE ARMY REGULATIONS ISSUED UNDER AUTHORITY OF THE EXECUTIVE ORDER, AR 35-1260, DATED JANUARY 22, 1951, AND STATED TO BE EFFECTIVE FROM OCTOBER 1949, PROVIDES THAT THE TERM "COMPETENT ORDERS" SHALL MEAN ORDERS ISSUED BY THE SECRETARY CONCERNED "OR SUCH OFFICER OR OFFICERS AS THE SECRETARY MAY DESIGNATE.' PARAGRAPH 3 OF AR 35-1260, RELATIVE TO THE DESIGNATIONS OF AUTHORITY TO ISSUE ORDERS, READS AS FOLLOWS:

"DELEGATION OF AUTHORITY TO ISSUE ORDERS.---

"AUTHORITY TO ISSUE ORDERS REQUIRING AN INDIVIDUAL TO PERFORM DEMOLITION DUTY, INCLUDING TRAINING FOR SUCH DUTY, IS DELEGATED TO THE FOLLOWING:

"COMMANDERS OF MAJOR COMMANDS; CHIEF OF ENGINEERS; CHIEF OF ORDNANCE; CHIEF CHEMICAL OFFICER; AND COMMANDANTS OF THE SCHOOLS OF THE RESPECTIVE SERVICES.'

NO PERTINENT CHANGE WAS MADE IN THOSE PROVISIONS DURING THE PERIOD OF YOUR CLAIM.

THE CITED STATUTORY PROVISIONS, THE EXECUTIVE ORDER 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 HANDLE 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 WHO ARE UNDERGOING TRAINING FOR SUCH DUTIES EITHER AS INSTRUCTORS OR STUDENTS AS A PART OF A RECOGNIZED COURSE OF INSTRUCTION IN SUCH DUTIES. THUS, ONE OF THE CONDITIONS FOR THE LAWFUL PAYMENT OF INCENTIVE PAY IS THAT THE MEMBER WAS "REQUIRED BY COMPETENT ORDERS" TO PERFORM THE DUTY INVOLVED AS HIS PRIMARY DUTY.

THE STATEMENT FURNISHED BY THE FORMER COMPANY COMMANDER OF COMPANY C, 453D ENGINEER CONSTRUCTION BATTALION, THAT YOU WERE ASSIGNED TO AND DID PERFORM DEMOLITION DUTY DURING NOVEMBER 1950 AND FROM FEBRUARY 1951 TO JUNE 1951, WAS SENT TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA. A REPORT DATED APRIL 5, 1963, IT WAS REPORTED THAT THE CLAIM WAS NOT CONSIDERED PAYABLE ON THE BASIS THEREOF. SUCH STATEMENT DOES NOT MEET THE REQUIREMENT OF COMPETENT ORDERS AND SINCE IT SEEMS CLEAR THAT NO OTHER ORDERS WERE ISSUED IT IS NOT ESTABLISHED THAT COMPETENT ORDERS WERE ISSUED IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE EXECUTIVE ORDER AND ARMY REGULATIONS.