B-141524, MAY 27, 1960

B-141524, MAY 27, 1960

TO MR. H. D. DODGE:

YOUR LETTER OF MAY 10, 1960, REFERS FURTHER TO THE CLAIM OF YOUR SON, JEROME P. DODGE, FOR INCENTIVE PAY FOR PARACHUTE DUTY BELIEVED TO BE DUE FOR THE MONTHS OF FEBRUARY AND MARCH 1955, AND NOVEMBER 1955 THROUGH MARCH 1957, INCIDENT TO HIS SERVICE IN THE UNITED STATES ARMY.

THE RECORD SHOWS YOU HAVE BEEN ADVISED ON SEVERAL OCCASIONS BOTH BY THIS OFFICE AND THE DEPARTMENT OF THE ARMY THAT THERE IS NO AUTHORITY TO PAY THE CLAIM FOR THE REASON THAT YOUR SON DID NOT MAKE THE PARACHUTE JUMPS REQUIRED BY LAW AND REGULATIONS DURING THE PERIODS INVOLVED AND THEREFORE DID NOT QUALIFY FOR THE INCENTIVE PAY FOR PARACHUTE DUTY WHICH MAY BE PAID ONLY WHEN MINIMUM JUMP REQUIREMENTS ARE MET.

IN YOUR PRESENT LETTER YOU ASK WHETHER THE BOARD FOR CORRECTION OF MILITARY RECORDS HAD THE AUTHORITY TO MAKE PAYMENT IF IT HAD BELIEVED YOUR SON WAS ENTITLED TO SOME ADJUSTMENT BECAUSE OF THE FAILURE OF THE ARMY TO GIVE HIM AN OPPORTUNITY TO MEET THE REGULATIONS BY MAKING THE REQUIRED NUMBER OF JUMPS. 10 U.S.C. 1552, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. * * * EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

"/C) THE DEPARTMENT CONCERNED MAY PAY, FROM APPLICABLE CURRENT APPROPRIATIONS, A CLAIM FOR THE LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER PECUNIARY BENEFITS, OR FOR THE REPAYMENT OF A FINE OR FORFEITURE, IF, AS A RESULT OF CORRECTING A RECORD UNDER THE SECTION, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT * * *.'

THUS, HAD THE BOARD CONCLUDED THERE WAS AN ERROR OR INJUSTICE IN YOUR SON'S CASE AND CORRECTED HIS RECORDS ACCORDINGLY, THERE WOULD BE AUTHORITY OF LAW FOR PAYMENT OF WHATEVER AMOUNT WOULD BE DUE ON THE BASIS OF HIS RECORD AS CORRECTED.

IN OUR LETTER OF JANUARY 20, 1960, B-141524, TO SENATOR MCCARTHY, WE SAID THAT SINCE THE MILITARY RECORDS DO NOT SHOW THAT MR. DODGE WAS UNDER ORDERS TO PERFORM, OR PERFORMED, THE PARACHUTE JUMPS TO QUALIFY FOR INCENTIVE PAY FOR PARACHUTE DUTY DURING THE PERIODS IN QUESTION, AS REQUIRED BY SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, SECTION 8 (B) OF EXECUTIVE ORDER NO. 10152 AND ARMY REGULATIONS IN EFFECT AT THE TIME, THERE APPEARS TO BE NO PROPER BASIS UPON WHICH TO GIVE FAVORABLE CONSIDERATION TO HIS CLAIM, AND THAT "WE DO NOT RECOMMEND CONSIDERATION OF RELIEF LEGISLATION IN THIS CASE.' YOU NOW ASK WHETHER WE WOULD HAVE MADE THE QUOTED STATEMENT HAD WE BEEN AWARE OF YOUR ALLEGATION THAT YOUR SON WAS READY TO PERFORM CERTAIN JUMPS WHICH WERE CANCELLED FOR WEATHER OR OTHER REASONS.

OUR CONCLUSION THAT RELIEF LEGISLATION IS NOT INDICATED WAS BASED ON ALL AVAILABLE INFORMATION INCLUDING THE FACT THAT, AS STATED IN OUR LETTER OF APRIL 15, 1960, B-141524, TO YOU, THE DEPARTMENT OF THE ARMY REPORTED THAT "AT NO TIME WAS IT EVER FOUND THAT MR. DODGE'SSON WAS DENIED THE OPPORTUNITY TO PERFORM AND QUALIFY FOR THE INCENTIVE PAY FOR THE MONTHS IN QUESTION" WHILE HIS PARACHUTE JUMP ORDERS WERE STILL IN EFFECT PRIOR TO SEPTEMBER 1955. YOUR PRESENT STATEMENT AFFORDS NO BASIS FOR MODIFICATION OF OUR CONCLUSION IN THE MATTER.

IT MAY BE STATED THAT, FOR MEMBERS OF THE ARMED FORCES ENTITLED TO RECEIVE BASIC PAY, THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AUTHORIZES ADDITIONAL PAY FOR VARIOUS TYPES OF HAZARDOUS DUTY, INCLUDING DUTY INVOLVING PARACHUTE JUMPING, WHEN SUCH DUTY IS PERFORMED PURSUANT TO ORDERS OF PROPER AUTHORITY AND IN ACCORDANCE WITH APPLICABLE REGULATIONS. MANY MEMBERS ARE QUALIFIED TO PERFORM THESE VARIOUS TYPES OF HAZARDOUS DUTY WHEN THEY ENLIST OR REENLIST BUT THEY ARE ENTITLED TO SUCH ADDITIONAL PAY ONLY FOR THOSE PERIODS THAT THEY ARE ORDERED BY PROPER AUTHORITY TO PERFORM SUCH DUTY AND ACTUALLY DO PERFORM THE DUTY REQUIRED BY THE REGULATIONS. WHETHER OR NOT A MEMBER OF THE ARMED FORCES IS TO BE ORDERED, FOR ANY PORTION OF THE PERIOD OF HIS ENLISTMENT, TO PERFORM HAZARDOUS DUTY FOR WHICH ADDITIONAL PAY IS AUTHORIZED IS ENTIRELY WITHIN THE DISCRETION OF THE DEPARTMENT CONCERNED. LIKEWISE, THE FURNISHING OF THE NECESSARY FACILITIES FOR PERFORMING SUCH DUTY IS A MATTER UNDER THE JURISDICTION OF THE DEPARTMENT CONCERNED. BUT UNLESS THE MEMBER, PURSUANT TO ORDERS OF COMPETENT AUTHORITY, PERFORMS THE DUTY AS REQUIRED BY THE APPLICABLE REGULATIONS HE IS NOT ENTITLED TO THE ADDITIONAL PAY.

IT IS NOTED THAT YOU ARE UNDER THE IMPRESSION THAT THE DENIAL OF YOUR SON'S CLAIM ON THE BASIS OF LAW, AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, CONSTITUTES AN ABROGATION OF HIS RIGHTS UNDER THE BILL OF RIGHTS OF THE CONSTITUTION OF THE UNITED STATES. SINCE QUESTIONS AS TO THE CONSTITUTIONALITY OF LAWS ARE FOR CONSIDERATION BY THE COURTS OF THE UNITED STATES, IT MAY BE STATED THAT WHILE THE ACTION OF THIS OFFICE ON CLAIMS PRESENTED HERE IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT, INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAD JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES. 28 U.S.C. 1346 (A) (2), 1491, AND 2501. IN THE CIRCUMSTANCES, IT DOES NOT APPEAR THAT FURTHER CORRESPONDENCE WITH THIS OFFICE ON THIS MATTER WOULD SERVE ANY USEFUL PURPOSE.