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B-160435, NOV. 25, 1968

B-160435 Nov 25, 1968
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SECRETARY: REFERENCE IS MADE TO LETTER OF OCTOBER 30. WHICH WAS THE SUBJECT OF OUR DECISION OF AUGUST 21. WAS UNAUTHORIZED DUE TO THE ABSENCE OF SPECIFIED REQUIREMENTS FOR THE AWARD IN THAT INSTRUCTION AND FURTHER THAT THE PAYMENT OF PROFICIENCY PAY TO PERSONNEL ON THE ENLISTED ADVANCEMENT ELIGIBILITY LIST. WAS NOT CONSISTENT WITH THE LANGUAGE AND SPIRIT OF THE PROFICIENCY PAY LAW. PROVIDES THAT AN ENLISTED MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY AND IS DESIGNATED AS BEING SPECIALLY PROFICIENT "IN A MILITARY SKILL OF THE UNIFORMED SERVICE CONCERNED" MAY BE PAID PROFICIENCY PAY. THOSE SKILLS WITHIN EACH UNIFORMED SERVICE UNDER HIS JURISDICTION FOR WHICH PROFICIENCY PAY IS AUTHORIZED.

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B-160435, NOV. 25, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF OCTOBER 30, 1968, FROM THE ACTING COMMANDANT, UNITED STATES COAST GUARD, FILE REFERENCE (PE-1), FORWARDING FOR OUR CONSIDERATION AND CONCURRENCE A COPY OF PROPOSED COMMANDANT INSTRUCTION 1430.1D, SUBJECT "ENLISTED PROFICIENCY PAY PROGRAM," TO BE EFFECTIVE NOVEMBER 1, 1968, AND TO SUPERSEDE COMMANDANT INSTRUCTION 1430.1C, DATED JUNE 6, 1968, WHICH WAS THE SUBJECT OF OUR DECISION OF AUGUST 21, 1968, B-160435, 48 COMP. GEN. -- .

WE HELD IN THE DECISION OF AUGUST 21, 1968, THAT THE PAYMENT OF PROFICIENCY PAY TO COAST GUARD PERSONNEL IN CATEGORY J, COMMANDANT'S SPECIAL AWARD, WAS UNAUTHORIZED DUE TO THE ABSENCE OF SPECIFIED REQUIREMENTS FOR THE AWARD IN THAT INSTRUCTION AND FURTHER THAT THE PAYMENT OF PROFICIENCY PAY TO PERSONNEL ON THE ENLISTED ADVANCEMENT ELIGIBILITY LIST, CATEGORY H, WAS NOT CONSISTENT WITH THE LANGUAGE AND SPIRIT OF THE PROFICIENCY PAY LAW. THE ACTING COMMANDANT SAYS THAT IN ORDER TO OBVIATE OUR OBJECTIONS THE REVISED INSTRUCTION DELETES CATEGORY H AND PRESCRIBES REQUIREMENTS FOR THE PAYMENT OF CATEGORY J AWARDS.

THE GOVERNING LAW, 37 U.S.C. 307, PROVIDES THAT AN ENLISTED MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY AND IS DESIGNATED AS BEING SPECIALLY PROFICIENT "IN A MILITARY SKILL OF THE UNIFORMED SERVICE CONCERNED" MAY BE PAID PROFICIENCY PAY. IT FURTHER PROVIDES THAT THE SECRETARY CONCERNED SHALL DESIGNATE, FROM TIME TO TIME, THOSE SKILLS WITHIN EACH UNIFORMED SERVICE UNDER HIS JURISDICTION FOR WHICH PROFICIENCY PAY IS AUTHORIZED, AND SHALL PRESCRIBE THE CRITERIA UNDER WHICH MEMBERS OF THE UNIFORMED SERVICE ARE ELIGIBLE FOR A PROFICIENCY RATING IN EACH SKILL.

AS POINTED OUT IN THE DECISION OF AUGUST 21, 1968, 37 U.S.C. 1001 (B) PROVIDES THAT REGULATIONS OF THE SECRETARY CONCERNED RELATING TO PAY MATTERS FOR MEMBERS OF THE COAST GUARD SHALL, AS FAR AS PRACTICABLE, CONFORM TO REGULATIONS APPROVED UNDER SUBSECTION (A) FOR THE MILITARY DEPARTMENTS.

IN THIS REGARD DEPARTMENT OF DEFENSE DIRECTIVE NO. 1304.10, DATED AUGUST 15, 1968, PROVIDES FOR AWARDS OF PROFICIENCY PAY (SPECIALTY) AND PROVIDES IN PARAGRAPHS IV A, IV D-2 AND V A-4 THAT PROFICIENCY PAY (SUPERIOR PERFORMANCE) IS PAYABLE TO MEMBERS FOR SUPERIOR DUTY PERFORMANCE IN SPECIALTIES NOT DESIGNATED FOR THE AWARD OF PROFICIENCY PAY (SPECIALTY). ALSO, PARAGRAPH 10803 (B), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT:

"PROFICIENCY PAY (SUPERIOR PERFORMANCE). THIS TYPE PROVIDES AN INCENTIVE FOR MEMBERS NOT OTHERWISE RECEIVING PROFICIENCY PAY, TO ACHIEVE SUPERIOR PERFORMANCE ON THE JOB. IT IS NOT A SUBSTITUTE FOR THE NORMAL INCENTIVE OF PROMOTION OPPORTUNITY. ELIGIBLE MEMBERS ARE THOSE WHO DEMONSTRATE SUPERIOR PERFORMANCE IN THE SPECIALTY AND GRADE IN WHICH THEY ARE SERVING.'

THE PROVISIONS OF THE PROPOSED COMMANDANT INSTRUCTION 1430.1D APPEAR TO BE IN SUBSTANTIAL AGREEMENT WITH THOSE PROVISIONS, IT BEING STATED IN PARAGRAPH 3.A. THAT--

"* * * PROFICIENCY IN A MILITARY SKILL INCLUDES RATINGS WHICH REQUIRE RELATIVELY LONG AND COSTLY TRAINING, FOR WHICH THE PROFICIENCY PAYMENT IS BASED ON THE SPECIALTY OF THE RATING; AND CERTAIN OTHER MILITARY OCCUPATIONAL DUTY ASSIGNMENTS IN WHICH THE INDIVIDUAL IS REQUIRED TO ACHIEVE SUPERIOR PERFORMANCE ON THE JOB.'

THE VARIOUS SPECIALTIES AND MILITARY OCCUPATIONAL DUTY ASSIGNMENTS FOR WHICH PROFICIENCY PAY WILL BE AUTHORIZED UNDER THE PROPOSED INSTRUCTION ARE SET OUT IN THE ENCLOSURES TO THE INSTRUCTION. THESE ENCLOSURES WILL ESTABLISH VARIOUS CATEGORIES FOR THE AWARD OF PROFICIENCY AY; CATEGORIES A, B AND C COVERING CRITICAL OPERATIONS RATES (SPECIALTY), CATEGORIES D THROUGH H WHERE IMPLEMENTED, COVERING OPERATIONS DUTY ASSIGNMENTS (SUPERIOR PERFORMANCE) AND CATEGORY J COVERING, WITHOUT REFERENCE TO RATE OR OPERATIONS DUTY, THE COMMANDANT'S SPECIAL AWARD.

AS RECOGNIZED BY THE REGULATIONS, UNDER THE GOVERNING LAW PROFICIENCY PAY MAY BE AUTHORIZED FOR PERSONNEL SERVING IN RATINGS REQUIRING SPECIALIZED TRAINING IN A MILITARY SKILL OF THE SERVICE CONCERNED AND FOR SUPERIOR PERFORMANCE WHILE SERVING IN OTHER MILITARY OCCUPATIONAL DUTY ASSIGNMENTS INVOLVING A MILITARY SKILL OF THAT SERVICE FOR WHICH SPECIALTY PROFICIENCY PAY HAS NOT BEEN AUTHORIZED. WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY, HOWEVER, WHICH SUPPORTS A CONCLUSION THAT PROFICIENCY PAY MAY BE AUTHORIZED FOR DUTY ASSIGNMENTS WHICH DO NOT INVOLVE ANY MILITARY GRADE SPECIALTY OR MILITARY OCCUPATION OF THE SERVICE.

THE ELIGIBILITY CRITERIA FOR THE COMMANDANT'S SPECIAL AWARD, CATEGORY J, AS SET FORTH IN ENCLOSURE NINE TO THE PROPOSED COMMANDANT INSTRUCTION 1430.1D ARE:

"1. PERFORMANCE REQUIREMENTS. MUST HAVE DEMONSTRATED SUPERIOR PERFORMANCE OF DUTY IN THE ASSIGNMENT DESCRIBED BELOW FOR A MINIMUM PERIOD OF 6 MONTHS IMMEDIATELY PRECEDING AWARD OF THE PROFICIENCY RATING.

"2. DUTY ASSIGNMENTS AND PROFICIENCY RATING AUTHORIZED.

A. PERSONNEL SELECTED AND ASSIGNED TO THE PERSONAL STAFF OF THE SECRETARY OF TRANSPORTATION - PROFICIENCY RATING J-2.

B. PERSONNEL SELECTED AND ASSIGNED TO THE PERSONAL STAFF OF THE COMMANDANT - PROFICIENCY RATING J-2.

C. PERSONNEL (NOT EXCEEDING TWO) SELECTED AND ASSIGNED TO THE PERSONAL STAFF OF EACH DISTRICT COMMANDER OF FLAG RANK - PROFICIENCY RATING J-2.

D. PERSONNEL SELECTED AND ASSIGNED TO THE U.S. MILITARY MISSION TO LIBERIA - PROFICIENCY RATING J-2.'

SUCH PROVISIONS PURPORTING TO AUTHORIZE PROFICIENCY PAY FOR THE NAMED ASSIGNMENTS SIGNATED,"COMMANDANT'S SPECIAL AWARD," UNLIKE THE IMPLEMENTED PROVISIONS OF ENCLOSURES ONE THROUGH EIGHT, DO NOT RELATE THE AWARD TO EITHER SERVICE IN A CRITICAL OPERATION RATE OR A MILITARY OCCUPATION OF THE COAST GUARD. AND THERE IS NOTHING OTHERWISE OF RECORD WHICH SUGGESTS THAT SUCH ASSIGNMENTS INVOLVE SPECIAL MILITARY SKILLS OR THAT CRITERIA FOR PROFICIENCY RATINGS OF THE KIND CONTEMPLATED BY THE STATUTE HAVE BEEN PRESCRIBED IN CONNECTION WITH THE CATEGORY J PERSONNEL.

ACCORDINGLY, WHILE ENCLOSURE NINE ESTABLISHES CERTAIN PERFORMANCE STANDARDS FOR THE CATEGORY J ASSIGNEES, THE DUTIES OF SUCH ASSIGNEES DO NOT, ON THE PRESENT RECORD, MEET THE MILITARY SKILL REQUIREMENTS OF 37 U.S.C. 307. HENCE, THE PROPOSED COMMANDANT INSTRUCTION 1430.1D AFFORDS NO BASIS FOR ANY CHANGE IN THE CONCLUSION REACHED IN THE DECISION OF AUGUST 21, 1968, THAT PROFICIENCY PAY FOR PERSONNEL IN CATEGORY J, COMMANDANT'S SPECIAL AWARD, IS NOT AUTHORIZED.

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