B-18661, JULY 17, 1941, 21 COMP. GEN. 43

B-18661: Jul 17, 1941

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A PROPOSED REGULATION WHICH LEAVES SUCH DESIGNATION TO COMMANDING OFFICERS CONSTITUTES AN UNAUTHORIZED DELEGATION OF AUTHORITY AND IS NOT A COMPLIANCE WITH THE STATUTE. THEIR RIGHT TO PAY UNDER THAT RATING WILL NOT BE QUESTIONED IF THE OTHER REQUIREMENTS OF THE STATUTE ARE MET. 1941: I HAVE YOUR LETTER OF JULY 8. OR MARINE CORPS OF THE UNITED STATES NOT IN FLYING-PAY STATUS WHO IS ASSIGNED OR ATTACHED AS A MEMBER OF A PARACHUTE UNIT. INCLUDING PARACHUTE-JUMPING IS AN ESSENTIAL PART OF HIS MILITARY DUTY AND WHO. HAS RECEIVED A RATING AS A PARACHUTIST OR IS UNDERGOING TRAINING FOR SUCH A RATING SHALL RECEIVE. THERE IS FORWARDED HEREWITH A LETTER FROM THE BUREAU OF NAVIGATION. YOUR DECISION IS REQUESTED AS TO WHETHER PAYMENTS OF ADDITIONAL PAY AT THE RATE OF $50 PER MONTH FOR ENLISTED MEN OF THE NAVAL SERVICE FOR WHOM PARACHUTE JUMPING IS AN ESSENTIAL PART OF THEIR MILITARY DUTY.

B-18661, JULY 17, 1941, 21 COMP. GEN. 43

PAY - ADDITIONAL - PARACHUTE DUTY SINCE THE ACT OF JUNE 3, 1941, PROVIDING ADDITIONAL PAY FOR PARACHUTE DUTY, REQUIRES THE HEAD OF THE DEPARTMENT TO DESIGNATE THE DUTY WHICH SHALL CONSTITUTE PARACHUTE DUTY, A PROPOSED REGULATION WHICH LEAVES SUCH DESIGNATION TO COMMANDING OFFICERS CONSTITUTES AN UNAUTHORIZED DELEGATION OF AUTHORITY AND IS NOT A COMPLIANCE WITH THE STATUTE. IF THE REGULATIONS TO BE ISSUED BY THE SECRETARY OF THE NAVY UNDER THE ACT OF JUNE 3, 1941, AUTHORIZING ADDITIONAL PAY FOR PARACHUTE DUTY, SHALL PROVIDE FOR GRANTING THE RATING OF PARACHUTIST TO NAVY ENLISTED MEN ON DUTY WITH MARINE CORPS PARACHUTE TROOPS, THEIR RIGHT TO PAY UNDER THAT RATING WILL NOT BE QUESTIONED IF THE OTHER REQUIREMENTS OF THE STATUTE ARE MET. UNDER THE ACT OF JUNE 3, 1941, PROVIDING FOR ADDITIONAL PAY FOR PARACHUTE DUTY, A PARACHUTE MATERIEL SCHOOL STUDENT WHOSE COURSE OF INSTRUCTION INCLUDES PARACHUTE JUMPING MAY BE CONSIDERED AS UNDERGOING TRAINING FOR THE RATING OF PARACHUTIST AND, THEREFORE, ENTITLED TO THE ADDITIONAL PAY, IF THE REGULATIONS TO BE ISSUED BY THE HEAD OF THE DEPARTMENT PROVIDE FOR GIVING SUCH A RATING UPON SUCCESSFUL COMPLETION OF TRAINING AT SUCH A SCHOOL.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 17, 1941:

I HAVE YOUR LETTER OF JULY 8, 1941, AS FOLLOWS:

THE ACT APPROVED JUNE 3, 1941 ( PUBLIC LAW 98, 77TH CONGRESS), "TO PROVIDE INCREASED PAY FOR CERTAIN MILITARY PERSONNEL WHILE ENGAGED ON PARACHUTE DUTY," READS AS FOLLOWS:

"THAT HEREAFTER ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES NOT IN FLYING-PAY STATUS WHO IS ASSIGNED OR ATTACHED AS A MEMBER OF A PARACHUTE UNIT, INCLUDING PARACHUTE-JUMPING IS AN ESSENTIAL PART OF HIS MILITARY DUTY AND WHO, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, HAS RECEIVED A RATING AS A PARACHUTIST OR IS UNDERGOING TRAINING FOR SUCH A RATING SHALL RECEIVE, WHILE ENGAGED UPON DUTY DESIGNATED BY THE HEAD OF THE DEPARTMENT CONCERNED AS PARACHUTE DUTY, ADDITIONAL PAY AT THE RATE OF $100 PER MONTH IN THE CASE OF ANY SUCH OFFICER OR WARRANT OFFICER, AND ADDITIONAL PAY AT THE RATE OF $50 PER MONTH IN THE CASE OF ANY SUCH ENLISTED MAN.'

IN CONNECTION WITH THE FOREGOING, THERE IS FORWARDED HEREWITH A LETTER FROM THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, DATED JULY 2, 1941, WITH ENCLOSURE OF A PROPOSED CHANGE IN ARTICLE D-5326, BUREAU OF NAVIGATION MANUAL, SETTING FORTH REGULATIONS AS TO THE CONDITIONS UNDER WHICH ENLISTED MEN OF THE NAVY MAY BE ENTITLED TO PARACHUTE PAY WHILE ENGAGED IN THE PERFORMANCE OF PARACHUTE DUTY AS AUTHORIZED IN THE SAID ACT OF JUNE 3, 1941.

YOUR DECISION IS REQUESTED AS TO WHETHER PAYMENTS OF ADDITIONAL PAY AT THE RATE OF $50 PER MONTH FOR ENLISTED MEN OF THE NAVAL SERVICE FOR WHOM PARACHUTE JUMPING IS AN ESSENTIAL PART OF THEIR MILITARY DUTY, WILL BE PASSED IN THE AUDIT, WHERE SUCH PAYMENTS ARE MADE ON THE BASIS OF THE ENCLOSED PROPOSED REGULATIONS TO BE ISSUED ON THIS SUBJECT, AND FURTHER,

(A) WHETHER OR NOT THE TERM "PARACHUTIST" AS USED IN THE ACT OF JUNE 3, 1941, MAY BE CONSTRUED TO INCLUDE NAVAL ENLISTED PERSONNEL, WHILE ON DUTY WITH MARINE CORPS PARACHUTE TROOPS WHO ARE REQUIRED TO JUMP WITH THESE TROOPS, SO AS TO ENTITLE SUCH NAVAL ENLISTED PERSONNEL TO ADDITIONAL PAY AS PROVIDED IN THE ACT OF JUNE 3, 1941; AND

(B) WHETHER OR NOT THE PHRASE "UNDERGOING TRAINING" AS USED IN THE ACT OF JUNE 3, 1941, MAY BE HELD AND CONSIDERED TO APPLY TO PARACHUTE MATERIEL STUDENTS, DURING WHOSE PERIOD OF TRAINING PARACHUTE JUMPING IS A PRESCRIBED DUTY, SO AS TO ENTITLE SUCH PARACHUTE MATERIEL STUDENTS TO THE ADDITIONAL PAY AUTHORIZED BY THE ACT OF JUNE 3, 1941, FOR PERSONNEL ENGAGED IN THE PERFORMANCE OF PARACHUTE DUTY.

THE PARAGRAPH PROPOSED TO BE ADDED TO ARTICLE D-5326, BUREAU OF NAVIGATION MANUAL, READS AS FOLLOWS:

(6) AN ENLISTED MAN, NOT IN FLYING PAY STATUS, WHO IS ASSIGNED OR ATTACHED AS A MEMBER OF A PARACHUTE UNIT, INCLUDING PARACHUTE JUMPING SCHOOLS, AND FOR WHOM PARACHUTE JUMPING IS AN ESSENTIAL PART OF HIS MILITARY DUTY AND WHO, UNDER SUCH REGULATIONS AS PRESCRIBED HEREINAFTER, HAS RECEIVED A DESIGNATION AS A PARACHUTIST OR IS UNDERGOING TRAINING FOR SUCH A DESIGNATION SHALL RECEIVE, WHILE ENGAGED UPON DUTY DESIGNATED BY HIS COMMANDING OFFICER AS PARACHUTE DUTY, ADDITIONAL PAY AT THE RATE OF FIFTY DOLLARS ($50) PER MONTH:

(A) TO BE DESIGNATED AS A PARACHUTIST A MAN MUST:

(1) BE A STUDENT UNDERGOING INSTRUCTION AT A PARACHUTE MATERIEL SCHOOL, WHERE PARACHUTE JUMPING IS PART OF THE APPROVED CURRICULUM OF THE SCHOOL.

(2) BE A STUDENT UNDERGOING INSTRUCTION AT A PARACHUTE JUMPING SCHOOL.

(B) TO RETAIN THE DESIGNATION OF A PARACHUTIST A MAN MUST HAVE SUCCESSFULLY COMPLETED A COURSE OF INSTRUCTION AT A PARACHUTE TRAINING SCHOOL, AND BE ASSIGNED DUTY WITH A UNIT OR ACTIVITY WHERE PARACHUTE JUMPING IS AN ESSENTIAL PART OF HIS MILITARY DUTIES.

THE ACT OF JUNE 3, 1941, QUOTED IN YOUR LETTER, PROVIDES FIVE CONDITIONS WHICH MUST EXIST TO ENTITLE PERSONNEL OF THE SPECIFIED CLASSES TO ADDITIONAL PAY FOR PARACHUTE DUTY. THESE CONDITIONS ARE AS FOLLOWS:

(1) THE OFFICER OR MAN MUST NOT BE IN A FLYING-PAY STATUS.

(2) HE MUST BE ASSIGNED OR ATTACHED AS A MEMBER OF A PARACHUTE UNIT (INCLUDING PARACHUTE-JUMPING SCHOOLS).

(3) PARACHUTE JUMPING MUST BE AN ESSENTIAL PART OF HIS MILITARY DUTY.

(4) HE MUST HAVE RECEIVED A RATING AS A PARACHUTIST OR MUST BE UNDERGOING TRAINING FOR SUCH A RATING UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY.

(5) HE MUST BE ENGAGED UPON DUTY DESIGNATED AS PARACHUTE DUTY BY THE HEAD OF THE DEPARTMENT CONCERNED.

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

IN ANSWER TO QUESTION DESIGNATED (A) IN YOUR LETTER THE TERM "PARACHUTIST" IS USED BUT ONCE IN THE ACT; IT IS SO USED TO DESIGNATE THE RATING, AND THAT RATING IS TO BE CONFERRED "UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY.' THE REGULATIONS TO BE ISSUED BY THE SECRETARY OF THE NAVY FOR THE GRANTING OF THE RATING OF PARACHUTIST SHALL PROVIDE FOR SUCH A RATING TO ENLISTED MEN OF THE NAVY ON DUTY WITH MARINE CORPS PARACHUTE TROOPS, THIS OFFICE WILL NOT QUESTION THEIR RIGHT TO PAY UNDER THAT RATING IF THE OTHER REQUIREMENTS OF THE STATUTE ARE MET.

AS TO QUESTION DESIGNATED (B) IN YOUR LETTER THE STATUTE PROVIDES THAT PARACHUTE-DUTY PAY MAY BE PAID UNDER THE STATED CONDITIONS TO ONE OF THE CLASSES OF PERSONNEL MENTIONED IF HE HAS RECEIVED A ,RATING AS A PARACHUTIST OR IS UNDERGOING TRAINING FOR SUCH A RATING.' IT IS PROPOSED TO PROVIDE IN THE AMENDMENT OF ARTICLE D-5326 OF THE BUREAU OF NAVIGATION MANUAL THAT STUDENTS AT PARACHUTE MATERIEL SCHOOLS (WHERE PARACHUTE JUMPING IS PART OF THE APPROVED CURRICULUM OF THE SCHOOL) MAY BE DESIGNATED PARACHUTISTS. YOU ASK WHETHER THE PHRASE "UNDERGOING TRAINING" MAY BE CONSIDERED TO APPLY TO PARACHUTE MATERIEL STUDENTS. IF TRAINING AT A PARACHUTE MATERIEL SCHOOL INCLUDES PARACHUTE JUMPING, THE STUDENT UNDERGOING SUCH INSTRUCTION, ALTHOUGH NOT PREVIOUSLY ENGAGED IN TRAINING FOR THE RATING OF PARACHUTIST, IS ENGAGED IN DUTY REQUIRING PARACHUTE JUMPING AS AN ESSENTIAL PART OF HIS MILITARY DUTY, AND REASONABLY, WITHIN THE STATUTE, MAY BE CONSIDERED AS UNDERGOING TRAINING FOR THE RATING OF PARACHUTIST IF THE REGULATIONS TO BE ISSUED BY THE SECRETARY OF THE NAVY PROVIDE FOR THE GIVING OF SUCH A RATING UPON SUCCESSFUL COMPLETION OF TRAINING AT A PARACHUTE MATERIEL SCHOOL.