B-155191, JAN. 27, 1965, 44 COMP. GEN. 426

B-155191, JAN. 27, 1965, 44 COMP. GEN. 426

PAY - ADDITIONAL - HAZARDOUS DUTY GENERALLY - MORE THAN ONE DUTY A MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS TWO TYPES OF HAZARDOUS DUTIES (1) IN A LOW PRESSURE CHAMBER AND (2) IN AERIAL FLIGHTS IN CONNECTION WITH THE TESTING AND EVALUATION OF AIRCREW SAFETY EQUIPMENT BUT WHO PERFORMS EACH ONE OF THE DUTIES SEPARATE AND DISTINCT FROM THE OTHER AND AT TIMES SEPARATED BY DAYS OR WEEKS MAY NOT BY REASON OF THE FACT THAT HE IS QUALIFIED AND DOES PERFORM BOTH HAZARDOUS DUTIES BE REGARDED AS ENTITLED TO DUAL INCENTIVE PAYMENTS UNDER 37 U.S.C. 301 AND, THEREFORE, ALTHOUGH THE TESTING AND EVALUATION OF EQUIPMENT IS A COMMON FACTOR TO BOTH DUTIES, THEY ARE SEPARATE AND DISTINCT DUTIES SO THAT THE MEMBER IS NOT ENTITLED TO DUAL INCENTIVE PAYMENTS.

TO W. E. GUY, UNITED STATES MARINE CORPS, JANUARY 27, 1965:

IN LETTER OF JULY 29, 1964, YOU REQUESTED AN ADVANCE DECISION WHETHER, IN THE CIRCUMSTANCES RELATED BELOW, DUAL INCENTIVE PAY IS AUTHORIZED TO BE PAID TO GUNNERY SERGEANT CLYDE E. POWERS, 601405, USMC. YOUR REQUEST, WITH ENCLOSURES, WAS FORWARDED HERE FROM HEADQUARTERS UNITED STATES MARINE CORPS, SEPTEMBER 16, 1964, UNDER CONTROL NO. DO-N-805 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT SERGEANT POWERS IS IN RECEIPT OF AVIATION (FLIGHT) PAY AS A CREW MEMBER. THE ISSUE PRESENTED IS WHETHER HE MAY ALSO BE PAID ADDITIONAL INCENTIVE PAY FOR DUTY INSIDE A LOW-PRESSURE CHAMBER.

THE STATUTORY PROVISIONS GOVERNING PAYMENT OF INCENTIVE PAY FOR HAZARDOUS DUTY PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES ARE SET FORTH IN SECTION 301, TITLE 37, U.S. CODE, PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 461-463. SUBSECTION (A) OF SECTION 301 PROVIDES:

SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY, IN THE AMOUNT SET FORTH IN SUBSECTION (B) OR (C) OF THIS SECTION, FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS. FOR THE PURPOSES OF THIS SUBSECTION,"HAZARDOUS DUTY" MEANS DUTY---

(1) AS A CREW MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT;

(9) INSIDE A HIGH- OR LOW-PRESSURE CHAMBER (AS AMENDED BY SECTION 7, PUB.L. 88-132, OCTOBER 2, 1963, 77 STAT. 216).

SUBSECTION (E) OF SECTION 301, AS AMENDED BY SECTION 8, PUBLIC LAW 88- 132, PROVIDES AS FOLLOWS:

A MEMBER IS ENTITLED TO NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY, AUTHORIZED BY THIS SECTION, FOR A PERIOD OF TIME DURING WHICH HE QUALIFIES FOR MORE THAN ONE PAYMENT OF THAT PAY.

SECTION 112, EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, 29 F.R. 7976, PROVIDES THAT:

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.

IN PARAGRAPH 044082, NAVY COMPTROLLER MANUAL, VOLUME 4, CHAPTER 4, CH. 127, JUNE 24, 1964, IT IS PROVIDED:

A MEMBER WHO QUALIFIES FOR INCENTIVE PAY FOR MORE THAN ONE TYPE OF HAZARDOUS DUTY WILL BE PAID NOT MORE THAN TWO PAYMENTS FOR THE SAME PERIOD OF TIME PROVIDED THAT HE IS REQUIRED BY COMPETENT ORDERS TO PERFORM CONCURRENTLY THE MULTIPLE HAZARDOUS DUTIES IN ORDER TO CARRY OUT THE ASSIGNED MISSION OF THE UNIT IN ACCORDANCE WITH THE POLICIES SET FORTH IN BUREAU OF NAVAL PERSONNEL AND MARINE CORPS DIRECTIVES AND MEETS THE PERFORMANCE REQUIREMENTS FOR THE TWO TYPES. A MEMBER WHO IS CREDITED SPECIAL PAY FOR DIVING DUTY WILL NOT RECEIVE INCENTIVE PAY FOR HAZARDOUS DUTY IN ADDITION THERETO.

THE POLICY OF THE DEPARTMENT OF THE NAVY CONCERNING MULTIPLE PAYMENTS OF INCENTIVE PAY AS SET FORTH IN BUPERS NOTICE 7220 (PERS A212-11A), APRIL 28, 1964, CITED IN YOUR LETTER, STATES, GENERALLY, THAT THE PURPOSE OF THE LEGISLATION AUTHORIZING TWO PAYMENTS OF INCENTIVE PAY "IS TO RECOGNIZE MILITARY REQUIREMENTS FOR CERTAIN MEMBERS TO BE TRAINED IN, AND TO PERFORM, MULTIPLE-HAZARDOUS DUTIES.' THE STATEMENT OF POLICY ADDS THAT THIS PROVISION OF LAW "WAS INTENDED TO INVOLVE A LIMITED NUMBER OF PERSONNEL AND IT IS APPLICABLE ONLY TO THOSE MEMBERS WHO ARE REQUIRED TO PERFORM MULTIPLE-HAZARDOUS DUTIES TO CARRY OUT THE MISSION OF THE UNIT.' ALSO, IT IS FURTHER STATED THAT ISSUANCE OF ORDERS UPON WHICH MULTIPLE- HAZARDOUS DUTY PAY MAY BE BASED WILL BE LIMITED TO THOSE MEMBERS "WHO ARE ACTUALLY REQUIRED TO PERFORM TWO OR MORE INTERDEPENDENT HAZARDOUS DUTIES IN ORDER TO CARRY OUT THE MISSION OF THEIR UNIT" AND THAT 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.' THE STATEMENT OF POLICY PROVIDES THAT 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 FOR SUCCESSFUL ACCOMPLISHMENT OF THE ASSIGNED MISSION.'

IN THE INSTANT CASE, SERGEANT POWERS IS REPORTED TO BE ASSIGNED AS NONCOMMISSIONED OFFICER IN CHARGE OF THE AERO MEDICAL SHOP, SERVICE TEST DIVISION, NAVAL AIR TEST CENTER, PATUXENT RIVER, MARYLAND. HE IS REQUIRED TO PERFORM THE FOLLOWING TASKS:

A. AS A LOW PRESSURE CHAMBER INSIDE OBSERVER, HE INDOCTRINATES PERSONNEL IN THE COMPRESSION CHAMBER ON HIGH ALTITUDE BREATHING AND THE USE OF OXYGEN SYSTEMS.

B. AFTER CHECKING NEW AND PROSPECTIVE AIRCREW SAFETY EQUIPMENT (E.G., FLIGHT HELMETS, FLIGHT SUITS, PRESSURE SUITS, FLIGHT BOATS, OXYGEN MINIATURE REGULATORS AND OXYGEN SYSTEMS) INSIDE THE PRESSURE CHAMBER, HE IS REQUIRED TO EVALUATE THIS SAME EQUIPMENT IN AERIAL FLIGHT. HE IS REQUIRED TO FLY NUMEROUS HOURS ON EACH ASSIGNED PROJECT.

SERGEANT POWERS' DUTIES AS OUTLINED ABOVE, COME WITHIN THE SCOPE OF THE FUNCTIONS OF THE SERVICE TEST DIVISION WHICH, TOGETHER WITH OTHER FUNCTIONS, INCLUDES THE MAINTENANCE OF AN AVIATION MEDICAL FACILITY (THE AERO MEDICAL BRANCH) TO FACILITATE THE EVALUATION AND CONDUCT OF DEVELOPMENTAL WORK ON AVIATOR'S EQUIPMENT AND INDOCTRINATION OF AVIATION PERSONNEL IN THE USE OF STANDARD AND EXPERIMENTAL AIRCREW EQUIPMENT. PARTICULAR, THE AERO MEDICAL BRANCH PLANS, CONDUCTS, AND REPORTS THE EVALUATION OF AVIATION SAFETY, PROTECTIVE AND SURVIVAL EQUIPMENT, EVALUATES AIRCRAFT OXYGEN AND ESCAPE SYSTEMS AND CONDUCTS AVIATION PHYSIOLOGICAL TRAINING, SAFETY SURVIVAL TRAINING, LOW PRESSURE CHAMBER AND EJECTION SEAT INDOCTRINATIONS.

IN DECISION OF APRIL 6, 1964, B-153331, 43 COMP. GEN. 667, IT WAS HELD THAT MEMBERS OF THE UNIFORMED SERVICES TRAINING FOR OR FULFILLING THE POSITION OF FORWARD AIR CONTROLLER ARE NOT ENTITLED TO DUAL INCENTIVE PAYMENTS FOR BOTH FLYING (AVIATION) AND PARACHUTE DUTY. IT WAS THERE STATED THAT:

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.

THAT CONCLUSION RESTED ON THE EXPRESS LIMITATION CONTAINED IN THE LAST SENTENCE OF NEW SECTION 12 THAT WAS ADDED BY EXECUTIVE ORDER NO. 11120, OCTOBER 2, 1963, 28 F.R. 10631, TO EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, 15 F.R. 5489 (NOW RESTATED IN SECTION 112, EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, QUOTED ABOVE) AND THE VIEW EXPRESSED BY THE DEPUTY ASSISTANT SECRETARY OF DEFENSE IN A MEMORANDUM DATED DECEMBER 19, 1963, 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.

ON PAGE 2 OF OUR DECISION OF APRIL 6, 1964, WE QUOTED THE STATEMENT OF COLONEL BENADE (SEE 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 BENADE, ADDRESSING THE SUBCOMMITTEE, STATED:

I CAN APPRECIATE YOUR CONCERN. I DO WANT TO ASSURE YOU 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.

AFTER REFERRING IN OUR DECISION OF APRIL 6, 1964, TO THE DUTIES AND MISSIONS PERFORMED BY "SEAL (SEA-AIR-LAND) TEAMS" AS ILLUSTRATIVE OF THE TYPE OF TWO HAZARDOUS DUTIES WHICH WOULD GIVE A RIGHT TO RECEIVE DUAL INCENTIVE PAY, WE POINTED OUT THAT:

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 (EITHER SIMULTANEOUSLY OR IN RAPID SUCCESSION) WHILE THE MEMBER WAS PERFORMING THE DUTIES ASSIGNED HIM IN CARRYING OUT THE MISSION OF THE UNIT INVOLVED.

IT SEEMS CLEAR THAT IN ENACTING THE LEGISLATION AUTHORIZING DUAL INCENTIVE PAYMENTS CONGRESS AND THE ARMED FORCES TOGETHER WERE IN FULL AGREEMENT THAT THE QUALIFICATION, PROFICIENCY, AND PERFORMANCE BY AN INDIVIDUAL OF MORE THAN ONE HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS AUTHORIZED WOULD NOT BE CONSIDERED AS ESTABLISHING A BASIS FOR ENTITLEMENT TO DOUBLE INCENTIVE PAY UNLESS THE PERFORMANCE OF SPECIFIC MULTIPLE HAZARDOUS DUTIES CONCURRENTLY OR IN RAPID SUCCESSION ACTUALLY IS REQUIRED UNDER COMPETENT ORDERS IN ORDER TO CARRY OUT THE ASSIGNED MISSION. IN THE PRESENT CASE THE TWO TYPES OF HAZARDOUS DUTIES INVOLVED ARE (1) FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT, AND (2) DUTY INSIDE A HIGH- OR LOW-PRESSURE CHAMBER. WE DO NOT UNDERSTAND THAT THE DUAL INCENTIVE PAY QUESTION PRESENTED IN THIS CASE IS BASED ON A CONTENTION THAT THE PERFORMANCE OF DUTY IN A HIGH- OR LOW-PRESSURE CHAMBER IS PERFORMED CONCURRENTLY WHILE ON AVIATION (FLIGHT) DUTY. ACTUALLY, THE FACTS RELATED SHOW THAT THE PERFORMANCE OF EITHER ONE OF THESE HAZARDOUS DUTIES IS QUITE A SEPARATE AND DISTINCT FUNCTION FROM PERFORMANCE OF THE OTHER AND MAY BE SEPARATED IN POINT OF TIME BY DAYS OR WEEKS. HENCE, THE FACT THAT SERGEANT POWERS IS QUALIFIED TO PERFORM AND DOES PERFORM BOTH OF THESE HAZARDOUS DUTIES IS NOT DETERMINATIVE OF HIS RIGHTS. THE PRESIDENTIAL AND DEPARTMENTAL REGULATIONS IMPLEMENTING THE PROVISIONS OF 37 U.S.C. 301 (E), AS AMENDED BY SECTION 8 OF PUBLIC LAW 88-132, OCTOBER 2, 1963, 77 STAT. 216, FOR DUAL INCENTIVE PAYMENTS, DO NOT CONTEMPLATE THE PERFORMANCE AT SEPARATE TIMES OF TWO OR MORE TYPES OF HAZARDOUS DUTIES. ACCORDINGLY, IT IS OUR VIEW THAT WHILE THE TESTING AND EVALUATION OF AIRCREW SAFETY EQUIPMENT IS A COMMON FACTOR UNDERLYING SERGEANT POWERS' HAZARDOUS DUTIES, FIRST IN A LOW-PRESSURE CHAMBER AND THEN IN AERIAL FLIGHT, THE PERFORMANCE OF SUCH DUTIES DOES NOT PROVIDE A BASIS FOR THE PAYMENT OF DUAL INCENTIVE PAY. IN THE CIRCUMSTANCES STATED, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.