B-156088, MAR. 5, 1965, 44 COMP. GEN. 532

B-156088, MAR. 5, 1965, 44 COMP. GEN. 532

PAY - ADDITIONAL - HOSTILE FIRE - MISSING, INTERNED, ETC. TO PAY HOSTILE FIRE PAY UNDER 37 U.S.C. 310 TO MEMBERS OF THE UNIFORMED SERVICES CAPTURED OR MISSING AS A RESULT OF HOSTILE ACTION, EVEN THOUGH THE MEMBERS HAD NOT OTHERWISE QUALIFIED FOR SUCH SPECIAL PAY IMMEDIATELY PRIOR TO THAT TIME, WHEN THE LEGISLATIVE HISTORY OF THE STATUTE CLEARLY ESTABLISHES THAT CONGRESS INTENDED THAT THE SPECIAL PAY SHOULD NOT BE PAID TO MEMBERS IN A CAPTURED OR MISSING STATUS, WOULD NOT BE PROPER AND WOULD THEREFORE REQUIRE OBJECTION.

TO THE SECRETARY OF DEFENSE, MARCH 5, 1965:

REFERENCE IS MADE TO LETTER OF FEBRUARY 3, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO A PROPOSED AMENDMENT TO DEPARTMENT OF DEFENSE INSTRUCTION 1340.6, DATED AUGUST 20, 1964, SO AS TO AUTHORIZE PAYMENT OF SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE TO MEMBERS OF A UNIFORMED SERVICE CAPTURED OR MISSING AS A RESULT OF HOSTILE ACTION, EVEN THOUGH THEY HAD NOT OTHERWISE QUALIFIED FOR SUCH PAY IMMEDIATELY PRIOR TO THAT TIME.

THE ASSISTANT SECRETARY STATES THAT THE LANGUAGE OF 37 U.S.C. 310 APPEARS TO BE BROAD ENOUGH TO AUTHORIZE THE PAYMENT OF THIS SPECIAL PAY UNDER THE CIRCUMSTANCES REFERRED TO ABOVE, BUT THAT THE LEGISLATION AS ORIGINALLY PROPOSED CONTAINING AN EXPRESS PROVISION SPECIFICALLY AUTHORIZING PAYMENT IN SUCH CIRCUMSTANCES WAS ELIMINATED BY THE HOUSE ARMED SERVICES COMMITTEE.

SECTION 310 OF TITLE 37, U.S.C. WAS ADDED BY SECTION 9 (A) (1) OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, 77 STAT. 210, 216, TO ESTABLISH A NEW SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE AND READS IN PERTINENT PART AS FOLLOWS:

(A) EXCEPT IN TIME OF WAR DECLARED BY CONGRESS, AND UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE, A MEMBER OF A UNIFORMED SERVICE MAY BE PAID SPECIAL PAY AT THE RATE OF $55 A MONTH FOR ANY MONTH IN WHICH HE WAS ENTITLED TO BASIC PAY AND IN WHICH HE--

(1) WAS SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES;

(2) WAS ON DUTY IN AN AREA IN WHICH HE WAS IN IMMINENT DANGER OF BEING EXPOSED TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES AND IN WHICH, DURING THE PERIOD HE WAS ON DUTY IN THAT AREA, OTHER MEMBERS OF THE UNIFORMED SERVICES WERE SUBJECT TO HOSTILE FIRE OR EXPLOSION OF HOSTILE MINES; OR

(3) WAS KILLED, INJURED, OR WOUNDED BY HOSTILE FIRE, EXPLOSION OF A HOSTILE MINE, OR ANY OTHER HOSTILE ACTION. A MEMBER COVERED BY CLAUSE (3) WHO IS HOSPITALIZED FOR THE TREATMENT OF HIS INJURY OR WOUND MAY BE PAID SPECIAL PAY UNDER THIS SECTION FOR NOT MORE THAN THREE ADDITIONAL MONTHS DURING WHICH HE IS SO HOSPITALIZED.

THE ORIGINAL BILL, H.R. 3006, 88TH CONGRESS, CONTAINED AN ADDITIONAL SUBPARAGRAPH READING AS FOLLOWS:

(4) WAS CAPTURED BY A HOSTILE FORCE OR BECAME MISSING UNDER CIRCUMSTANCES THAT INDICATES HOSTILE ACTION WAS INVOLVED.

IN THE COURSE OF THE HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, THE HONORABLE CHARLES E. BENNETT OBJECTED TO INCLUDING SUBPARAGRAPH (4) ON THE GROUND THAT IT WOULD BE AGAINST THE PUBLIC INTEREST AND CONTRARY TO PUBLIC POLICY "TO ESTABLISH IN ADVANCE OF CAPTURE * * * THAT YOU ARE GOING TO PAY HIM SO MUCH FOR BEING CAPTURED," THAT IS,"THAT IF YOU SET UP A PREMIUM FOR CAPTURE IT ENCOURAGES AN INDIVIDUAL TO BE CAPTURED" AND "IT WOULD ENCOURAGE HIM TO GET LOST SOMEWHERE," EVEN THOUGH IT MIGHT BE POSSIBLE TO "WEED OUT THOSE DEFECTING.' SEE PP. 1460, 1715, 1718-1719, 1728-1729 OF THE HEARINGS OF THAT SUBCOMMITTEE, WHICH VOTED TO ELIMINATE THE QUESTIONED SUBPARAGRAPH (4). H.R. 4696, 88TH CONGRESS, WHICH SUPERSEDED H.R. 3006, CONTAINED THE TEXT OF THE PROVISION COVERING SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE AS ADOPTED BY THE SUBCOMMITTEE (WITHOUT SUBPARAGRAPH (4/). THE BILL H.R. 5555, 88TH CONGRESS, WHICH SUPERSEDED H.R. 4696, AS REPORTED BY THE COMMITTEE ON ARMED SERVICES, AND WHICH BECAME THE UNIFORMED SERVICES PAY ACT OF 1963, OMITTED THE AUTHORIZATION OF SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE, HAVING BEEN "REMOVED BY A CLOSE VOTE IN THE FULL COMMITTEE.' SEE REPRESENTATIVE BENNETT'S STATEMENT AT PAGE 67 OF H.REPT. 208. REPRESENTATIVE BENNETT THEN OFFERED AN AMENDMENT ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES TO INCLUDE THE PROVISION FOR SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE AS IT APPEARED IN H.R. 4696 AND LATER IN THE UNIFORMED SERVICES PAY ACT OF 1963, WHICH WAS ADOPTED BY THAT BODY. SEE 109 CONG.REC. 8078-8081.

IN VIEW OF THE FACT THAT THE PROVISIONS IN SUBPARAGRAPH (4) OF THE ORIGINAL BILL (H.R. 3006) WAS REMOVED AT THE INSISTENCE OF REPRESENTATIVE BENNETT AND THE ENTIRE SECTION RELATING TO SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE WAS RESTORED TO THE BILL ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES PURSUANT TO AN AMENDMENT OF THE BILL (H.R. 5555) BY REPRESENTATIVE BENNETT, IT IS OUR OPINION THAT THE BASIS STATED IN THE HEARINGS FOR REMOVAL OF SUBPARAGRAPH (4) CLEARLY ESTABLISHES THE LEGISLATIVE INTENT WITH RESPECT TO THIS MATTER AND THAT THE CONGRESS INTENDED THAT THE SPECIAL PAY SHOULD NOT BE PAID IN THE CIRCUMSTANCES UNDER WHICH IT WOULD HAVE BEEN AUTHORIZED BY THAT SUBPARAGRAPH. YOUR QUESTION IS ANSWERED BY SAYING THAT THIS OFFICE WOULD BE REQUIRED TO OBJECT TO PAYMENTS OF SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE TO MEMBERS CAPTURED OR MISSING AS A RESULT OF HOSTILE ACTION UNDER THE CONDITIONS STATED IN THE QUESTION.