B-164309, JUNE 25, 1968, 47 COMP. GEN. 781

B-164309, JUNE 25, 1968, 47 COMP. GEN. 781

PAY - ADDITIONAL - HOSTILE FIRE PAY - CADETS AND MIDSHIPMEN CADETS AND MIDSHIPMEN OF THE ACADEMIES WHO ARE NOT MEMBERS OF THE UNIFORMED SERVICES WITHIN THE PURVIEW OF 37 U.S.C. 101 (23) AND WHO ARE PAID PURSUANT TO SECTION 201 (C) AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE 0-1 WITH 2 OR LESS YEARS OF SERVICE COMPUTED UNDER SECTION 205, IF SENT TO VIETNAM FOR ORIENTATION AND TRAINING WOULD NOT BE ENTITLED TO THE HOSTILE FIRE PAY PRESCRIBED BY SECTION 310 (A), THE RULE IN 30 COMP. GEN. 31 CONCERNING FLIGHT PAY TO THE EFFECT THAT SPECIAL PAY IS DEPENDENT UPON A STATUS OF ENTITLEMENT TO BASIC PAY, APPLYING EQUALLY TO HOSTILE FIRE PAY ENTITLEMENT.

TO THE SECRETARY OF DEFENSE, JUNE 25, 1968:

REFERENCE IS MADE TO LETTER OF MAY 7, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION WHETHER CADETS AND MIDSHIPMEN AT THE ACADEMIES WILL BE ENTITLED TO SPECIAL PAY FOR DUTY SUBJECT TO HOSTILE FIRE IF THEY ARE SENT TO VIETNAM THIS SUMMER FOR ORIENTATION AND TRAINING AND ARE OTHERWISE ENTITLED. A DISCUSSION PERTAINING TO THE MATTER IS CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 411.

SECTION 201 (C) OF TITLE 37, U.S. CODE, PROVIDES:

(C) A CADET AT THE UNITED STAT MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, OR THE COAST GUARD ACADEMY, OR A MIDSHIPMAN AT THE UNITED STATES NAVAL ACADEMY, IS ENTITLED TO MONTHLY PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE 0-1 WITH TWO OR LESS YEARS OF SERVICE COMPUTED UNDER SECTION 205 OF THIS TITLE.

SECTION 310 (A) OF TITLE 37, U.S. CODE, PROVIDES:

(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 DATE OF $65 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.

SECTION 101 (3) OF TITLE 37, U.S. CODE, PROVIDES:

(3) "UNIFORMED SERVICES" MEANS THE ARMY NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE;

SECTION 101 (23) OF TITLE 37, U.S. CODE, PROVIDES:

(23) "MEMBER" MEANS A PERSON APPOINTED OR ENLISTED IN, OR CONSCRIPTED INTO, A UNIFORMED SERVICE;

SECTION 3062 (C) OF TITLE 10, U.S. CODE, PROVIDES:

(C) THE ARMY CONSISTS OF---

(1) THE REGULAR ARMY, THE ARMY NATIONAL GUARD OF THE UNITED STATES, THE ARMY NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES AND THE ARMY RESERVE; AND

(2) ALL PERSONS APPOINTED OR ENLISTED IN, OR CONSCRIPTED INTO, THE ARMY WITHOUT COMPONENT. SIMILAR PROVISIONS ARE CONTAINED IN 10 U.S.C. 8062 (D) WITH RESPECT TO THE COMPOSITION OF THE AIR FORCE.

SUBSECTIONS 5001 (A) (1) AND (3) OF TITLE 10, U.S. CODE, PROVIDE:

(A) IN THIS SUBTITLE:

(1) "NAVY" MEANS THE UNITED STATES NAVY. IT INCLUDES THE REGULAR NAVY, THE FLEET RESERVE, AND THE NAVAL RESERVE.

(3) "MEMBER OF THE NAVAL SERVICE" MEANS A PERSON, MALE OR FEMALE, APPOINTED OR ENLISTED IN, OR INDUCTED OR CONSCRIPTED INTO, THE NAVY OR THE MARINE CORPS.

SECTION 3075 OF TITLE 10, U.S. CODE, PROVIDES:

(A) THE REGULAR ARMY IS THE COMPONENT OF THE ARMY THAT CONSISTS OF PERSONS WHOSE CONTINUOUS SERVICE ON ACTIVE DUTY IN BOTH PEACE AND WAR IS CONTEMPLATED BY LAW, AND OF RETIRED MEMBERS OF THE REGULAR ARMY.

(B) THE REGULAR ARMY INCLUDES---

(1) THE OFFICERS AND ENLISTED MEMBERS OF THE REGULAR ARMY;

(2) THE PROFESSORS, REGISTRAR, AND CADETS OF THE UNITED STATES MILITARY ACADEMY; AND

(3) THE RETIRED OFFICERS AND ENLISTED MEMBERS OF THE REGULAR ARMY. SIMILAR PROVISIONS ARE CONTAINED IN 10 U.S.C 8075 WITH RESPECT TO THE REGULAR AIR FORCE.

SECTION 5012 (A) OF TITLE 10, U.S. CODE, PROVIDES:

(A) THE NAVY, WITHIN THE DEPARTMENT OF THE NAVY, INCLUDES, IN GENERAL, NAVAL COMBAT AND SERVICE FORCES AND SUCH AVIATION AS MAY BE ORGANIC THEREIN. THE NAVY SHALL BE ORGANIZED, TRAINED, AND EQUIPPED PRIMARILY FOR PROMPT AND SUSTAINED COMBAT INCIDENT TO OPERATIONS AT SEA. IT IS RESPONSIBLE FOR THE PREPARATION OF NAVAL FORCES NECESSARY FOR THE EFFECTIVE PROSECUTION OF WAR EXCEPT AS OTHERWISE ASSIGNED AND IS GENERALLY RESPONSIBLE FOR NAVAL RECONNAISSANCE, ANTISUBMARINE WARFARE, AND PROTECTION OF SHIPPING.

SECTIONS 4342 (D), 9342 (D), AND 6953 OF TITLE 10, U.S. CODE, RESPECTIVELY, PROVIDE THAT CADETS AT THE UNITED STATES MILITARY ACADEMY AND THE UNITED STATES AIR FORCE ACADEMY, AND MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY, SHALL BE APPOINTED BY THE PRESIDENT. SECTIONS 4349 (B) AND 9349 (A) OF TITLE 10, U.S. CODE, PROVIDE THAT AN ARMY OR AIR FORCE CADET SHALL PERFORM DUTIES AT SUCH PLACES AND OF SUCH TYPE AS THE PRESIDENT MAY DIRECT. NO SPECIFIC SIMILAR PROVISION HAS BEEN FOUND WITH RESPECT TO MIDSHIPMEN AT THE NAVAL ACADEMY, ALTHOUGH THEY ARE REQUIRED TO AGREE THAT THEY WILL COMPLETE THE 4-YEAR COURSE OF INSTRUCTION AT THE NAVAL ACADEMY. SEE 10 U.S.C. 6959 (A) AND 6966.

FOR THE REASONS STATED IN DECISION OF JULY 28, 1950, 30 COMP. GEN. 31, WE HELD THAT MIDSHIPMEN OF THE U.S. NAVY ARE NOT ENTITLED TO INCREASED PAY FOR FLYING DUTY PERFORMED AFTER THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 802, NOR TO CONTINUE TO RECEIVE FLYING PAY UNDER THE SAVED PAY PROVISIONS OF SECTION 515 OF THAT ACT, 37 U.S.C. 315 (1958 ED.). SECTION 102 (B) OF THAT ACT, 37 U.S.C. 101 (23), DEFINED THE TERM "MEMBER" AS MEANING A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES. IN THAT DECISION WE SAID THAT THE SAVED PAY PROVISIONS OF SECTION 515 PERTAINED TO "MEMBERS" OF THE UNIFORMED SERVICES, NOTING THAT THE DEFINITION OF "MEMBERS" CONTAINED IN SECTION 102 (B) DID NOT INCLUDE MIDSHIPMEN, AND THAT:

* * * THER IS NO INTIMIDATION IN THE ACT OR IN ITS LEGISLATIVE HISTORY THAT THE WORD "MEMBER" AS USED IN THE SO-CALLED SAVED PAY PROVISIONS WAS INTENDED TO INCLUDE OTHER THAN THOSE DESIGNATIONS LISTED IN THE DEFINITION. IN THIS CONNECTION, SECTION 201 (A) OF THE ACT, 63 STAT. 805, PROVIDES BASIC PAY FOR "MEMBERS OF THE UNIFORMED SERVICES" LISTING MONTHLY RATES OF PAY FOR COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED PERSONS ONLY. THE PAY AND ALLOWANCES OF MIDSHIPMEN ARE FIXED IN A SEPARATE SECTION, NOT AS A "MEMBER" OF THE UNIFORMED SERVICES AS THAT TERM IS USED IN THE STATUTE. IN REFERENCE TO SECTION 201 (A) IT IS STATED, AT PAGE 15 OF SENATE REPORT 733, JULY 20, 1949, ON H.R. 5007--- WHICH BECAME THE CAREER COMPENSATION ACT OF 1949--- THAT, "THIS SUBSECTION PRESCRIBES PAY GRADE FOR ALL PERSONNEL OF ALL THE SERVICES INCLUDED IN THE BILL.' ALSO, ON FEBRUARY 9, 1950, MR. VINSON, CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, INTRODUCED H.R. 7246, 81ST CONGRESS, A BILL TO AMEND THE CAREER COMPENSATION ACT OF 1949, SO AS TO INCLUDE, INTER ALIA, THE WORD "MIDSHIPMEN" IN THE DEFINITION OF "MEMBER" IN SECTION 102 (B) OF THE SAID ACT.

THE COMMITTEE ACTION CONCLUDES THAT UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY WERE NOT "MEMBERS" OF THE UNIFORMED SERVICES ENTITLED TO BASIC PAY WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 201 (A) OF THAT ACT, WHICH PROVIDED BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES. IT POINTS OUT THAT THAT SECTION, ALONG WITH OTHER PROVISIONS OF THE CAREER COMPENSATION ACT, WAS REPLACED BY SECTION 1 OF THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, THE PURPOSE OF WHICH WAS TO CODIFY THE PROVISIONS OF THE CAREER COMPENSATION ACT AS TITLE 37, U.S.C. AND TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED BY THE CODIFICATION; THAT SECTION 203 (A) OF TITLE 37, WHICH REPLACED SECTION 201 (A) OF THE 1949 LAW, SETS FORTH IN TABULAR FORM RATES OF MONTHLY BASIC PAY FOR MEMBERS OF THE UNIFORMED SERVICES: COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED MEMBERS ONLY.

THE COMMITTEE ACTION ALSO SHOWS THAT THE DEFINITION OF THE TERM "MEMBER" IN SECTION 102 (B) OF THE OLD LAW AND 101 (23) OF THE NEW LAW INCLUDES COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON; AND THAT THERE IS NO SUGGESTION IN THE LEGISLATIVE HISTORY OF THE CODIFICATION OF TITLE 37 THAT ANY SUBSTANTIVE CHANGE WAS EFFECTED BY THAT CODIFICATION IN CONNECTION WITH THAT PROVISION OF LAW. IT MAY BE NOTED THAT SECTION 12 (A) OF PUBLIC LAW 87-649, 37 U.S.C PREC. 101 NOTE, STATES THAT "ITIS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED" BY SECTIONS 1-11 OF THAT ACT.

THE COMMITTEE ACTION STATES THAT IT WOULD SEEM REASONABLE TO CONCLUDE THAT THE REASONING IN 30 COMP. GEN. 31 WOULD APPLY WITH EQUAL FORCE TODAY IF A MIDSHIPMAN OF THE U.S. NAVAL ACADEMY SHOULD CLAIM ENTITLEMENT TO INCENTIVE PAY FOR DUTY INVOLVING FLIGHT UNDER 37 U.S.C. 301 (A) (1), SINCE ENTITLEMENT TO SUCH PAY IS DEPENDENT UPON A STATUS OF ENTITLEMENT TO BASIC PAY, AND THAT EQUIVALENT CONSIDERATIONS WOULD APPEAR TO BE INVOLVED IN THE QUESTION OF ENTITLEMENT TO HOSTILE FIRE PAY UNDER 37 U.S.C. 310.

WE AGREE WITH THE COMMITTEE ACTION CONCLUSION AND HENCE THE QUESTION POSED IS ANSWERED IN THE NEGATIVE. IN OUR OPINION NOTHING CONTAINED IN 10 U.S.C. 3075 OR 8075 REQUIRES OR SUGGESTS THAT ANY DIFFERENT ANSWER IS APPROPRIATE.