B-153331, DEC. 11, 1964

B-153331, DEC. 11, 1964

TO THE HONORABLE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 19, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) FORWARDING FOR DECISION, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 354, THE FOLLOWING QUESTION:

"IS A FORWARD AIR CONTROLLER ON FLYING STATUS AND ENTITLED TO FLYING PAY, INJURED AS A RESULT OF A PARACHUTE ACCIDENT WHILE PERFORMING DUTIES AS A PARACHUTIST, ENTITLED TO FLYING PAY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH THE INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY?

INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY UNDER COMPETENT ORDERS IS AUTHORIZED IN 37 U.S.C. 301 SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT. SUBSECTION (E) WAS AMENDED BY SECTION 8 OF THE ACT OF OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 216, TO AUTHORIZE NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY FOR ANY PERIOD OF TIME DURING WHICH THE MEMBER QUALIFIES FOR MORE THAN ONE PAYMENT OF THAT PAY. PRIOR TO THAT TIME ONLY ONE PAYMENT OF INCENTIVE PAY WAS AUTHORIZED ALTHOUGH THE MEMBER MIGHT BE REQUIRED TO PERFORM MORE THAN ONE TYPE OF HAZARDOUS DUTY.

ENTITLEMENT OF MEMBERS SERVING AS FORWARD AIR CONTROLLERS TO DUAL PAYMENTS OF INCENTIVE PAY FOR FLYING DUTY AND PARACHUTE DUTY WAS THE SUBJECT OF OUR DECISION OF APRIL 6, 1964, B-153331. YOU STATE THAT SUCH MEMBERS HAVE BEEN RETAINED ON BOTH FLYING DUTY AND PARACHUTE DUTY BUT THAT, BECAUSE OF OUR DECISION, THEY ARE NOW RECEIVING ONLY ONE PAYMENT OF INCENTIVE PAY WHICH IS THAT AUTHORIZED FOR FLYING DUTY. THE CURRENT QUESTION ARISES BY REASON OF THE FACT THAT WHILE THE MEMBERS CONCERNED ARE UNDER ORDERS TO PERFORM BOTH FLYING DUTY AND PARACHUTE DUTY THEY ARE RECEIVING INCENTIVE PAY ON THE BASIS OF FLYING DUTY ONLY AND THE INJURY WAS INCURRED WHILE SERVING NOT AS AN AVIATOR BUT AS A PARACHUTIST.

UPON AMENDMENT OF THE LAW TO AUTHORIZE TWO PAYMENTS OF INCENTIVE PAY IN PROPER CASES, THE PRESIDENT BY EXECUTIVE ORDER 11120, DATED OCTOBER 2, 1963, AMENDED THE REGULATIONS GOVERNING PAYMENTS OF SUCH INCENTIVE PAY. SECTION 10 OF THAT EXECUTIVE ORDER IS AS FOLLOWS:

"SEC. 10. ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY, OR MULTIPLE HAZARDOUS DUTIES, AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF ANY SUCH HAZARDOUS DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF ALL HAZARDOUS DUTIES WHICH HE IS REQUIRED BY COMPETENT ORDERS TO PERFORM, FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.'

THE CURRENT REGULATIONS GOVERNING SUCH PAYMENTS ARE CONTAINED IN EXECUTIVE ORDER 11157 DATED JUNE 24, 1964, SECTION 110 OF WHICH IS IDENTICAL WITH SECTION 10 OF EXECUTIVE ORDER 11120, QUOTED ABOVE.

UNDER THE QUOTED REGULATIONS THE 3 MONTHS' GRACE PERIOD, DURING WHICH THE MEMBER IS REGARDED AS HAVING FULFILLED THE REQUIREMENTS FOR PERFORMANCE OF HAZARDOUS DUTIES, IS DEPENDENT UPON THE MEMBER'S STATUS AS ESTABLISHED BY COMPETENT ORDERS REQUIRING PERFORMANCE OF HAZARDOUS DUTY OR DUTIES RATHER THAN UPON THE RECEIPT OF INCENTIVE PAY FOR THE PARTICULAR TYPE OF HAZARDOUS DUTY INCIDENT TO WHICH THE INJURY WAS INCURRED. SINCE WE FIND NO BASIS FOR QUESTIONING THE AUTHORITY OF THE PRESIDENT TO ISSUE SUCH REGULATIONS, IT APPEARS THAT A FORWARD AIR CONTROLLER WHO IS UNDER PROPER ORDERS TO PERFORM MORE THAN ONE TYPE OF HAZARDOUS DUTY AND IS INJURED WHILE PERFORMING ONE OF THOSE DUTIES--- FOR WHICH HE IS NOT RECEIVING INCENTIVE PAY---WOULD BE ENTITLED TO CONTINUE RECEIVING THE AUTHORIZED INCENTIVE PAY DURING THE 3 MONTHS' GRACE PERIOD FOR WHICH HE QUALIFIED PRIOR TO THAT TIME. YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.