B-166980, NOV. 10, 1969

B-166980, NOV. 10, 1969

PAY--ADDITIONAL--PARACHUTE DUTY--ACTIVE DUTY FOR TRAINING STATUS CONCERNING CLAIM FOR PARACHUTE PAY BY NONAIRBORNE RESERVIST ORDERED TO ACTIVE DUTY FOR TRAINING IN OTHER THAN "PARACHUTE POSITION" REQUIRED BY PAR. 2-2D, ARMY REGULATION 37-125, ALTHOUGH BOTH INACTIVE AND ANNUAL ACTIVE DUTY JUMPS WERE MADE, PREVIOUS DISALLOWANCE OF PARACHUTE PAY DURING ACTIVE DUTY IS SUSTAINED SINCE RULE 4, TABLE 2-3-5, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES MANUAL, APPLIES TO QUALIFYING MEMBERS REASSIGNED ON PERMANENT CHANGE OF STATION INVOLVING PARACHUTE DUTY, AND EXAMPLES IN MANUAL PAR. 20312 REFER TO "PARACHUTE POSITION" MEMBERS ASSIGNED TO TEMPORARY DUTY.

TO LIEUTENANT COLONEL THEODORE N. CANAS, USAR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1969, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR DECISION OF JULY 14, 1969, B-166980, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR PARACHUTE PAY.

WITH YOUR LETTER YOU FURNISHED A COPY OF ORDERS DATED JUNE 11, 1968, SHOWING THAT YOU WERE ORDERED TO "ANNUAL ACTIVE DUTY FOR TRAINING" WITH YOUR RESERVE UNIT AT CAMP DRUM, WATERTOWN, NEW YORK, DURING THE PERIOD OCTOBER 5 TO 19, 1968. DURING THIS PERIOD YOU PERFORMED A PARACHUTE JUMP ON OCTOBER 12, 1968. AS PREVIOUSLY NOTED, YOU PERFORMED TWO OTHER JUMPS WITH YOUR RESERVE UNIT ON JULY 6, 1968, AND SEPTEMBER 7, 1968, WHILE IN AN INACTIVE DUTY TRAINING STATUS.

IN YOUR LETTER YOU SAY THAT IT IS IMMATERIAL WHAT "POSITION" YOU OCCUPIED WHILE ON ACTIVE DUTY FOR TRAINING AT THE PENTAGON. YOU STATE THAT YOUR CLAIM IS BASED ON "AUTHORIZED PARACHUTE JUMPS MADE DURING PERIODS OF INACTIVE DUTY FOR TRAINING OR, PERIODS OF ANACDUTRA" (ANNUAL ACTIVE DUTY FOR TRAINING) AND PARAGRAPH 80314 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. YOU REFER TO THE EXAMPLES IN PARAGRAPH 20312 OF THE MANUAL AND ENCLOSED A COPY OF TABLE 2-3-5 OF THE MANUAL IN SUPPORT OF YOUR CLAIM. IN THE EVENT THE DENIAL OF YOUR CLAIM IS SUSTAINED, YOU ASK WHAT ADMINISTRATIVE OR JUDICIAL APPEAL IS OPEN TO YOU.

IN OUR DECISION OF JULY 14, 1969, WE CONSIDERED THE PROVISIONS OF PARAGRAPHS 20312, 80231D AND 80314 OF THE PAY ENTITLEMENTS MANUAL AND WE SAID THAT WHILE UNDER THOSE REGULATIONS PARACHUTE JUMPS PERFORMED DURING THE PERIODS OF INACTIVE DUTY TRAINING OR ACTIVE DUTY FOR TRAINING MAY BE USED TO QUALIFY A MEMBER FOR PARACHUTE PAY FOR EITHER TYPE OF TRAINING DUTY, PARAGRAPH 2-2D, ARMY REGULATION 37-125, CLEARLY REQUIRES THAT DUTY BY A PARACHUTIST IN A NONAIRBORNE UNIT MUST BE DESIGNATED AS A "PARACHUTE POSITION" WITH PARACHUTE JUMPING BEING DETERMINED TO BE AN INHERENT AND ESSENTIAL PART OF THE DUTIES OF THE POSITION IN ORDER FOR THE PERSON CONCERNED TO BE VIEWED AS BEING IN A "PARACHUTE DUTY" STATUS AS THAT TERM IS USED IN THE REGULATIONS. WE CONCLUDED THAT IN THE ABSENCE OF ORDERS DESIGNATING YOUR ACTIVE DUTY FOR TRAINING AT THE PENTAGON AS DUTY IN A ,PARACHUTE POSITION" AS CONTEMPLATED BY THE REGULATIONS, YOUR INACTIVE DUTY PARACHUTE JUMPS WHICH YOU PERFORMED BETWEEN PERIODS OF YOUR ACTIVE DUTY AT THE PENTAGON DID NOT ENTITLE YOU TO PARACHUTE PAY DURING SUCH ACTIVE DUTY.

EXCEPT FOR A COPY OF YOUR ORDERS OF JULY 11, 1968, YOUR LETTER PRESENTS NO NEW RELEVANT MATERIAL NOT PREVIOUSLY CONSIDERED BY US. UNDER RULE 4 OF TABLE 2-3-5 OF THE MANUAL, TO WHICH YOU CALL OUR ATTENTION, ENTITLEMENT TO INCENTIVE PAY FOR PARACHUTE DUTY IS NOT AFFECTED WHERE A MEMBER IS ,REASSIGNED" ON PCS (PERMANENT CHANGE OF STATION) INVOLVING PARACHUTE DUTY AND OTHERWISE MEETS THE JUMP REQUIREMENTS. WE DO NOT UNDERSTAND HOW THIS RULE AFFECTS YOUR SITUATION SINCE THERE IS NOTHING IN YOUR ORDERS TO ACTIVE DUTY FOR TRAINING AT THE PENTAGON TO INDICATE THAT YOU WERE ,REASSIGNED" UNDER PERMANENT CHANGE OF STATION ORDERS WITHIN THE MEANING OF RULE 4 AND NO PARACHUTE DUTY WAS REQUIRED AT THAT PLACE.

THE EXAMPLES IN PARAGRAPH 20312 OF THE MANUAL, TO WHICH YOU REFER, SEEM TO APPLY TO A MEMBER WHO IS ASSIGNED TO A POSITION REQUIRING PARACHUTE JUMPING AS AN ESSENTIAL AND INHERENT PART OF HIS MILITARY DUTY AND WHO, WHILE ON TEMPORARY DUTY NOT INVOLVING PARACHUTE JUMPING AND AWAY FROM HIS PERMANENT UNIT OF ASSIGNMENT, PERFORMED A JUMP WHILE ON SUCH TEMPORARY DUTY. YOUR DESIGNATED POST OF DUTY -- PERMANENT DUTY STATION -- UNDER YOUR SEVERAL ORDERS WAS AT THE PENTAGON. SINCE THOSE ORDERS DID NOT DESIGNATE YOUR DUTY ASSIGNMENT AS A "PARACHUTE POSITION" AND SINCE SUCH DUTY ASSIGNMENT DID NOT REQUIRE PARACHUTE JUMPING AS AN ESSENTIAL AND INHERENT PART OF THAT DUTY, WE FIND NO AUTHORITY FOR PAYMENT OF PARACHUTE PAY FOR THOSE PERIODS OF ACTIVE DUTY TRAINING WHILE AT THE PENTAGON.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST AS TO WHAT ADMINISTRATIVE OR JUDICIAL APPEAL IS OPEN TO YOU, YOU ARE ADVISED THAT UNDER 31 U.S.C. 74 THE DECISIONS OF THE COMPTROLLER GENERAL ON CLAIMS SUCH AS YOURS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT IF SUIT IS FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.