B-153331, APRIL 6, 1964, 43 COMP. GEN. 667

B-153331, APRIL 6, 1964, 43 COMP. GEN. 667

PAY - AVIATION DUTY - DOUBLE INCENTIVE PAY - DUTY REQUIREMENTS. PAY - AVIATION DUTY - DOUBLE INCENTIVE PAY - EFFECTIVE DATE AN EXPERIENCED PILOT AND PARACHUTIST OF THE UNIFORMED SERVICES TRAINING FOR OR FULFILLING THE POSITION OF FORWARD AIR CONTROLLER, WHOSE DUTIES DO NOT QUALIFY HIM FOR FLYING PAY OR REQUIRE THE PERFORMANCE OF PARACHUTE JUMPS TO CARRY OUT ASSIGNED DUTIES, MAY NOT BE PAID THE DUAL INCENTIVE PAY AUTHORIZED BY THE ACT OF OCTOBER 2, 1963 (PUBLIC LAW 88-132), EXECUTIVE ORDER NO. 11120 LIMITING DUAL PAYMENTS OF INCENTIVE PAY TO THOSE MEMBERS REQUIRED BY COMPETENT ORDERS TO PERFORM SPECIFIC HAZARDOUS DUTIES IN ORDER TO CARRY OUT THEIR ASSIGNED MISSIONS; THEREFORE, THE FACT THAT A MEMBER IS QUALIFIED TO PERFORM A HAZARDOUS DUTY IS NOT THE CRITERION FOR ENTITLEMENT TO DUAL INCENTIVE PAY, BUT RATHER THAT TWO OR MORE HAZARDOUS DUTIES ARE PERFORMED INDEPENDENTLY AND SIMULTANEOUSLY, OR IN RAPID SUCCESSION, IN THE ACCOMPLISHMENT OF THE ASSIGNED MISSION OF THE CONTROL PARTY OPERATING WITH AN AIRBORNE UNIT. IF A MEMBER PURSUANT TO COMPETENT ORDERS IN EFFECT BEFORE OCTOBER 1, 1963 PARTICIPATES FREQUENTLY AND REGULARLY IN BOTH FLYING AND PARACHUTE DUTIES, A JUMP PERFORMED PRIOR TO OCTOBER 1, 1963 DOES NOT QUALIFY HIM FOR THE DUAL INCENTIVE PAY AUTHORIZED BY THE ACT OF OCTOBER 2, 1963 (PUBLIC LAW 88 -132), EXECUTIVE ORDER NO. 11120, IMPLEMENTING THE ACT, INDICATING NO INTENT THAT THE PERFORMANCE OF DUAL HAZARDOUS DUTY THAT QUALIFIES A MEMBER FOR DUAL INCENTIVE PAY COULD BE PERFORMED PRIOR TO THE EFFECTIVE DATE OF THE LAW AND ORDER, AND, IN THE ABSENCE OF A CLEAR SHOWING IN THE ORDER ITSELF THAT SUCH DUTY WOULD MEET THE QUALIFICATION REQUIREMENTS FOR DUAL INCENTIVE PAY, PARACHUTE JUMPS PERFORMED BEFORE OCTOBER 1, 1963 DO NOT QUALIFY A MEMBER FOR DUAL INCENTIVE PAY.

TO THE SECRETARY OF DEFENSE, APRIL 6, 1964:

BY LETTER DATED JANUARY 20, 1964, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) TRANSMITTED COMMITTEE ACTION NO. 337 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, PRESENTING FOR DECISION THE FOLLOWING QUESTIONS: QUESTION: 1.

ARE MILITARY MEMBERS TRAINING FOR OR FULFILLING THE POSITION OF FORWARD AIR CONTROLLER ENTITLED TO DUAL INCENTIVE PAYMENTS FOR PERIODS DURING WHICH THEY MEET THE MINIMUM REQUIREMENTS OF EXECUTIVE ORDER 10152, AS AMENDED, FOR BOTH FLYING AND PARACHUTE DUTY? QUESTION: 2.

IF A MEMBER WAS REQUIRED BY COMPETENT ORDERS IN EFFECT BEFORE 1 OCT 1963 TO PARTICIPATE FREQUENTLY AND REGULARLY IN BOTH FLYING AND PARACHUTE DUTY, WOULD A JUMP PERFORMED BEFORE 1 OCT 1963 QUALIFY HIM FOR DUAL INCENTIVE PAY FOR OCTOBER 1963, OR FOR OCTOBER AND NOVEMBER, IF APPROPRIATE?

UNDER THE PROVISIONS OF SUBSECTION (E) OF 37 U.S.C. 301, IN EFFECT PRIOR TO OCTOBER 1, 1963, A MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED TO BE PAID ONLY ONE INCENTIVE PAY FOR HAZARDOUS DUTY, AUTHORIZED BY THAT SECTION, FOR ANY PERIOD OF TIME DURING WHICH HE MET THE QUALIFICATIONS FOR MORE THAN ONE INCENTIVE PAY. BY SECTION 8 OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 216, SUBSECTION (E) WAS AMENDED TO ALLOW NOT MORE THAN TWO PAYMENTS OF HAZARDOUS DUTY INCENTIVE PAY FOR A PERIOD OF TIME DURING WHICH A MEMBER QUALIFIES FOR MORE THAN ONE PAYMENT OF THAT PAY.

THE LANGUAGE OF PUBLIC LAW 88-132 DOES NOT DISCLOSE THE LEGISLATIVE INTENT IN CHANGING SUBSECTION (E) BUT THE LEGISLATIVE HISTORY SHOWS THAT MEMBERS OF THE COMMITTEES CONSIDERING THE BILL WHICH BECAME THAT ACT EXPRESSED CONCERN THAT THE PROPOSED LEGISLATION COULD BE ABUSED AND THAT ASSURANCES WERE GIVEN BY A REPRESENTATIVE TESTIFYING FOR THE DEPARTMENT OF DEFENSE THAT THE PROVISION IN QUESTION WOULD BE IMPLEMENTED BY REGULATION IN SUCH A WAY AS TO PREVENT ANY POSSIBLE ABUSES.

THE FOLLOWING STATEMENT APPEARS ON PAGE 1691 OF THE HEARINGS ON H.R. 3006 (SUPERSEDED BY H.R. 5555), BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON ARMED SERVICES:

COLONEL BEN ADE. I CAN APPRECIATE YOUR CONCERN. I DO WANT TO ASSURE THAT IN THIS CASE THE DESIRES OF THE INDIVIDUAL ARE NOT A CONSIDERATION AT ALL. IT IS THE MILITARY MISSION, AND THE MEMBERS THAT WE ENVISION RECEIVING THIS NOT MORE THAN TWO PAYMENTS ARE THOSE MEMBERS WHO ARE ASSIGNED TO UNITS WHERE THE ACTUAL PERFORMANCE OF THE MISSION OF THE UNIT REQUIRES THE CONCURRENT PERFORMANCE OF THESE DUTIES. AND IN ALL CASES THEY WILL NOT ONLY MEET THE MINIMUM REQUIREMENT BUT I AM SURE WILL EXCEED IT IN ACTUAL PRACTICE.

AS AN EXAMPLE OF TWO HAZARDOUS DUTIES WHICH WOULD GIVE A RIGHT TO DUAL INCENTIVE PAY, THE COMMITTEES WERE REFERRED TO THE DUTIES AND MISSIONS PERFORMED BY "SEAL (SEA-AIR-LAND) TEAMS.' THEIR ATTENTION WAS DIRECTED TO THE PARTICULAR TYPE OF MULTIPLE HAZARDOUS DUTY PERFORMED BY THOSE TEAMS AND IT IS CLEAR THAT THE CONSIDERATION OF THE COMMITTEES WAS FOCUSED ON THE FACT THAT THE TWO OR MORE HAZARDOUS DUTIES PERFORMED BY MEMBERS OF THOSE TEAMS ARE PERFORMED INTERDEPENDENTLY AND SIMULTANEOUSLY OR IN RAPID SUCCESSION IN CARRYING OUT THEIR MISSIONS.

CONSIDERED IN THE LIGHT OF THE FOREGOING, IT WOULD SEEM THAT THE VIEWS OF THE COMMITTEES WHICH CONSIDERED H.R. 5555 (H.REPT. NO. 208, APRIL 11, 1963, PAGE 21, AND S.REPT. NO. 387, AUGUST 5, 1963, PAGE 45) TO THE EFFECT THAT ONLY THOSE MEMBERS WHO ARE REQUIRED TO PERFORM MULTIPLE HAZARDOUS DUTIES "TO CARRY OUT THE MISSION OF THE UNIT WOULD BE CERTIFIED FOR AND RECEIVE" TWO HAZARDOUS DUTY PAYMENTS, EXPRESS THE UNDERSTANDING OF SUCH COMMITTEES THAT BOTH HAZARDOUS DUTIES ACTUALLY WOULD BE ACCOMPLISHED WHILE THE MEMBER WAS PERFORMING THE DUTIES ASSIGNED HIM IN CARRYING OUT THE MISSION OF THE UNIT INVOLVED.

WE BELIEVE THAT SECTION 12 OF EXECUTIVE ORDER NO. 11120, WHICH AMENDED PRIOR EXECUTIVE ORDERS CONTAINING REGULATIONS RELATING TO INCENTIVE PAY, WAS ISSUED FOR THE PURPOSE OF CARRYING OUT THAT LEGISLATIVE INTENT. SUCH SECTION IS AS FOLLOWS:

SEC. 12. UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, A MEMBER WHO PERFORMS MULTIPLE HAZARDOUS DUTIES UNDER COMPETENT ORDERS MAY BE PAID NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY FOR A PERIOD OF TIME DURING WHICH HE QUALIFIES FOR MORE THAN ONE SUCH PAYMENT. DUAL PAYMENTS OF INCENTIVE PAY SHALL BE LIMITED TO THOSE MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM SPECIFIC MULTIPLE HAZARDOUS DUTIES IN ORDER TO CARRY OUT THEIR ASSIGNED MISSIONS.

WE UNDERSTAND THAT THE REGULATIONS AUTHORIZED BY EXECUTIVE ORDER NO. 11120 HAVE NOT BEEN PROMULGATED. SINCE NEITHER THE LAW NOR THE EXECUTIVE ORDER FIXED WHEN, IN AN OTHERWISE PROPER CASE, DUAL INCENTIVE PAY SHOULD COMMENCE, WHEN IT SHOULD TERMINATE, THE AMOUNT OF THE REQUIRED DUAL HAZARDOUS DUTY THAT MUST BE PERFORMED IN CARRYING "OUT THEIR ASSIGNED MISSIONS," THE TYPE OF ORDERS REQUIRING SUCH DUAL HAZARDOUS DUTY AND WHO MAY ISSUE THEM, ETC., THE ABSENCE OF EXPLICIT AND COMPREHENSIVE ADMINISTRATIVE REGULATIONS LEAVES UNCERTAIN MANY BASIC MATTERS WHICH NECESSARILY WOULD BE FOR CONSIDERATION IN ACTING ON ANY CLAIM FOR DUAL INCENTIVE PAY.

IN A MEMORANDUM DATED DECEMBER 19, 1963, OF THE DEPUTY ASSISTANT SECRETARY OF DEFENSE, RELATING TO THE POLICY TO BE FOLLOWED IN IMPLEMENTING DUAL PAYMENTS OF INCENTIVE PAY, IT IS STATED IN PART THAT:

* * * IT IS APPARENT THAT PERFORMANCE OF TWO OR MORE HAZARDOUS DUTIES MUST BE ESSENTIAL TO THE SUCCESSFUL ACCOMPLISHMENT OF THE MISSION OF THE UNIT. THE FACT THAT A MEMBER IS QUALIFIED TO PERFORM A HAZARDOUS DUTY IS NOT THE CRITERION; THE FACT THAT A MEMBER ACTUALLY PERFORMS TWO OR MORE HAZARDOUS DUTIES TO ACCOMPLISH THE MISSION IS THE CRITERION. THE CONGRESS DURING THE HEARINGS ON THE MILITARY PAY BILL WAS GREATLY CONCERNED THAT THIS PARTICULAR PROVISION SHOULD NOT BE ABUSED. THE CONGRESS WAS ASSURED THAT THIS PROVISION WOULD BE IMPLEMENTED UNDER VERY CAREFUL REGULATIONS TO PREVENT ANY POSSIBLE ABUSE.

AS A MATTER OF POLICY, ENTITLEMENT TO DOUBLE INCENTIVE PAYS FOR HAZARDOUS DUTY WILL BE LIMITED TO THOSE MEMBERS WHO ARE REQUIRED TO ACTUALLY PERFORM TWO OR MORE INTERDEPENDENT HAZARDOUS DUTIES IN ORDER TO CARRY OUT THE MISSION OF THE UNIT. IN ALL CASES MEMBERS MUST MEET MINIMUM REQUIREMENTS FOR EACH OF THE HAZARDOUS DUTY PAYS AS IS NOW REQUIRED FOR ENTITLEMENT TO A SINGLE HAZARDOUS DUTY PAY. QUALIFICATION AND PROFICIENCY IN ANOTHER TYPE OF HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS AUTHORIZED WILL NOT BE A BASIS FOR ENTITLEMENT TO DOUBLE INCENTIVE PAY WHEN THE PERFORMANCE OF SUCH HAZARDOUS DUTY IS NOT REQUIRED TO SUCCESSFULLY ACCOMPLISH THE ASSIGNED MISSION. MEMBERS IN FLIGHT WAIVER STATUS UNDER AUTHORITY OF SECTION 514 OF THE DOD APPROPRIATION ACT WILL NOT BE ELIGIBLE FOR DUAL HAZARD/INCENTIVE PAY WHEN FLYING IS ONE OF THE HAZARDOUS DUTIES.

QUALIFIED MEMBERS OF A FORWARD AIR CONTROL PARTY OPERATING WITH AN AIRBORNE UNIT MUST BE QUALIFIED PARACHUTIST AND MUST PERFORM PARACHUTE JUMPING IN ORDER TO ACCOMPLISH THEIR MISSION. THIS MEMBER IS ALSO REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT. FORWARD AIR CONTROLLER QUALIFIES FOR BOTH PAYS BECAUSE HIS DUTY AS A FORWARD AIR CONTROLLER IS INTERDEPENDENT ON HIS QUALIFICATION AS A PILOT. (IF, AS UNDERSTOOD, THERE IS A RESERVATION CONCERNING THE LEGALITY OF THIS PARTICULAR POLICY PROVISION, THE COMMITTEE MAY WISH TO OBTAIN A DECISION FROM THE COMPTROLLER GENERAL BEFORE ENTITLEMENTS ARE AUTHORIZED FOR DUAL INCENTIVE PAY IN THIS CASE.)

IT IS DISCLOSED IN COMMITTEE ACTION NO. 337 THAT AN AIR FORCE FORWARD AIR CONTROLLER IS AN OFFICER (AVIATOR) MEMBER OF A TACTICAL AIR CONTROL PARTY/AIR CONTROL TEAM WHO, FROM A FORWARD AIR POSITION, CONTROLS AIRCRAFT ENGAGED IN CLOSE AIR SUPPORT OF GROUND TROOPS. THESE OFFICERS ALSO ARE QUALIFIED PARACHUTISTS. IT IS STATED THAT THEY ACTUALLY HAVE BEEN MEETING REQUIREMENTS FOR BOTH FLYING AND PARACHUTE DUTY UNDER ORDERS REQUIRING SUCH DUTY, BUT WERE DRAWING FLIGHT PAY ONLY PRIOR TO OCTOBER 1, 1963, AS ONLY ONE PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY WAS AUTHORIZED. IS ALSO STATED THAT MARINE CORPS AVIATORS ASSIGNED TO AN AIR AND NAVAL GUNFIRE LIAISON COMPANY (ANGLICO), UNITED STATES MARINE CORPS, AS FORWARD AIR CONTROLLERS, ARE REQUIRED TO BE QUALIFIED AS PARACHUTISTS AND MUST PERFORM PARACHUTE JUMPING TO CARRY OUT THEIR ASSIGNED MISSIONS. THEY MUST FLY IN ORDER TO MAINTAIN THEIR FLIGHT PROFICIENCY AND KEEP ABREAST OF DEVELOPMENTS IN AVIATION. THE COMMITTEE ACTION ALSO SETS FORTH IN DETAIL THE DUTIES OF A FORWARD AIR CONTROLLER OF AN AIR AND NAVAL GUNFIRE LIAISON COMPANY WHICH INDICATES THAT THE SKILLS AND EXPERIENCE OF BOTH A PILOT AND A PARACHUTIST ARE NECESSARY IN ORDER TO EFFECTIVELY ACCOMPLISH HIS ASSIGNED MISSION.

UNDER THE LAW AND EXECUTIVE ORDER FLYING PAY IS NOT AUTHORIZED UNLESS THE MEMBER IS REQUIRED BY COMPETENT ORDERS TO PERFORM FREQUENT AND REGULAR AERIAL FLIGHTS. AND PARACHUTE PAY IS NOT AUTHORIZED UNLESS PARACHUTE JUMPING IS REQUIRED BY ORDERS AS AN ESSENTIAL PART OF MILITARY DUTY. APPARENTLY, HOWEVER, A MEMBER MAY QUALIFY FOR FLYING PAY OR PARACHUTE PAY UNDER THAT CRITERIA BUT STILL NOT PERFORM THE FLIGHTS OR JUMPS IN CARRYING "OUT THEIR ASSIGNED MISSIONS," AS THOSE WORDS ARE USED IN SECTION 12 OF THE ORDER. IN OTHER WORDS, NOTWITHSTANDING THE FACT THAT FLIGHTS OR JUMPS FOR FLYING PAY OR PARACHUTE PAY ARE DIRECTED BY COMPETENT ORDERS (AND IN THE CASE OF JUMPS SPECIFICALLY MUST BE AN ESSENTIAL PART OF THE MEMBER'S MILITARY DUTY) SUCH FLIGHTS AND JUMPS WITHOUT SOMETHING MORE DO NOT QUALIFY THE MEMBER FOR DUAL INCENTIVE PAY BECAUSE THE SECOND SENTENCE OF SECTION 12 OF THE EXECUTIVE ORDER EXPRESSLY PROVIDES A LIMITATION ON THE PAYMENT OF SUCH DUAL PAYS.

WE AGREE WITH THE VIEW EXPRESSED BY THE DEPUTY ASSISTANT SECRETARY OF DEFENSE THAT:

PERFORMANCE OF TWO OR MORE HAZARDOUS DUTIES MUST BE ESSENTIAL TO THE SUCCESSFUL ACCOMPLISHMENT OF THE MISSION OF THE UNIT. THE FACT THAT THE MEMBER IS QUALIFIED TO PERFORM A HAZARDOUS DUTY IS NOT THE CRITERION; THE FACT THAT A MEMBER ACTUALLY PERFORMS TWO OR MORE HAZARDOUS DUTIES TO ACCOMPLISH THE MISSION IS THE CRITERION.

WE DISAGREE WITH HIS CONCLUSION THAT A FORWARD AIR CONTROLLER QUALIFIES FOR BOTH PAYS BECAUSE ,MEMBERS OF A FORWARD AIR CONTROL PARTY OPERATING WITH AN AIRBORNE UNIT * * * MUST PERFORM PARACHUTE JUMPING IN ORDER TO ACCOMPLISH THEIR MISSION" AND A MEMBER'S "DUTY AS A FORWARD AIR CONTROLLER IS INTERDEPENDENT ON HIS QUALIFICATION AS A PILOT.' WHILE THE MEMBER'S QUALIFICATIONS AS A PILOT MAY MAKE HIM A MORE EFFECTIVE FORWARD AIR CONTROLLER, UNLESS THE DUTIES PERFORMED IN THE CAPACITY OF FORWARD AIR CONTROLLER ARE SUCH THAT THEY MIGHT SERVE AS A BASIS FOR QUALIFYING FOR FLYING PAY, IT IS OUR VIEW THAT HE MAY NOT BE PAID DUAL INCENTIVE PAY AS A FORWARD AIR CONTROLLER.

WHILE IT IS REPORTED THAT AVIATORS ASSIGNED TO AN AIR AND NAVAL GUNFIRE LIAISON COMPANY AS FORWARD AIR CONTROLLERS MUST PERFORM PARACHUTE JUMPS TO CARRY OUT THEIR ASSIGNED MISSIONS, IT IS INDICATED THAT AN AIR FORCE FORWARD AIR CONTROLLER PERFORMS HIS DUTIES FROM A "FORWARD AIR POSITION.' NO EXPLANATION HAS BEEN FURNISHED AS TO HOW PARACHUTE JUMPING IS NECESSARY TO MAINTAIN A FORWARD AIR POSITION. ASIDE FROM A POSSIBLE INFERENCE DERIVED FROM THE SPECIALTY CLASSIFICATION OF AIR FORCE FORWARD AIR CONTROLLERS AS "PILOT, TACTICAL FIGHTER, AIR FORCE SPECIALTY CODE 1115," WE FIND NOTHING IN THE REQUEST FOR DECISION WHICH SHOWS THAT AN AVIATOR OR PILOT ASSIGNED AS A FORWARD AIR CONTROLLER TO A FORWARD AIR CONTROL PARTY OPERATING WITH AN AIRBORNE UNIT PERFORMS DUTY WHICH WOULD QUALIFY HIM FOR FLYING PAY WHILE HE IS IN FLIGHT AS A MEMBER OF THAT UNIT. PRESUMABLY, HIS DUTIES AT THAT TIME DO NOT INVOLVE FLYING THE PLANE ON WHICH HE IS BEING TRANSPORTED.

ACCORDINGLY, ON THE PRESENT RECORD, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO THE SECOND QUESTION, WE FIND NOTHING IN THE EXECUTIVE ORDER FROM WHICH IT MAY BE CONCLUDED THAT THE PERFORMANCE OF DUAL HAZARDOUS DUTY WHICH WOULD QUALIFY A MEMBER TO DUAL INCENTIVE PAY COULD BE PERFORMED PRIOR TO THE EFFECTIVE DATE OF THE LAW AND ORDER. IN THE ABSENCE OF A CLEAR SHOWING IN THE ORDER ITSELF THAT SUCH DUTY WOULD MEET THE QUALIFICATION REQUIREMENTS FOR DUAL INCENTIVE PAY, QUESTION 2 MUST BE ANSWERED IN THE NEGATIVE.