B-119415, JUNE 24, 1954, 33 COMP. GEN. 602

B-119415, JUNE 24, 1954, 33 COMP. GEN. 602

PAY - ADDITIONAL - DEMOLITION DUTY - ACTUAL PERFORMANCE OF DUTY REQUIREMENT WHILE NEITHER SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 NOR EXECUTIVE ORDER NO. 10152 STATES ANY PRECISE PERIODS DURING WHICH INCENTIVE PAY FOR DUTY INVOLVING DEMOLITION OF EXPLOSIVES IS PAYABLE, ADDITIONAL PAY FOR SUCH DUTY IS PRESCRIBED ON A MONTHLY BASIS, AND THEREFORE ACTUAL PERFORMANCE OF DEMOLITION DUTY--- OR TRAINING FOR SUCH DUTY--- DURING AT LEAST A PORTION OF ANY MONTH IS REQUIRED TO QUALIFY A MEMBER OF THE UNIFORMED SERVICES FOR INCENTIVE PAY FOR THAT MONTH, UNLESS THE MEMBER IS INCAPACITATED AS A RESULT OF THE PERFORMANCE OF DEMOLITION DUTY, IN WHICH EVENT HE IS DEEMED TO HAVE FULFILLED THE HAZARDOUS DUTY REQUIREMENTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS. A MEMBER OF THE UNIFORMED SERVICES REQUIRED BY COMPETENT ORDERS TO PERFORM DEMOLITION DUTY AS A PRIMARY DUTY MAY BE PAID INCENTIVE PAY UNDER SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AND EXECUTIVE ORDER NO. 10152, FOR ANY MONTH IN WHICH SUCH DUTY IS ACTUALLY PERFORMED, EVEN THOUGH FOR A PORTION OF THAT MONTH THE MEMBER IS CARRIED IN A SICK IN LINE-OF-DUTY STATUS OR A TEMPORARY DUTY STATUS IN WHICH HE DOES NOT ACTUALLY PERFORM DUTIES INVOLVING DEMOLITION OF EXPLOSIVES OR TRAINING FOR SUCH DUTIES.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, JUNE 24, 1954:

REFERENCE IS MADE TO LETTER OF MARCH 23, 1954, WITH ENCLOSURE ( MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 93), FROM THE ASSISTANT SECRETARY OF DEFENSE REQUESTING A DECISION AS TO WHETHER MEMBERS OF THE UNIFORMED SERVICES UNDER COMPETENT ORDERS TO PERFORM DEMOLITION DUTY MUST ACTUALLY PERFORM SUCH DUTY EACH MONTH TO QUALIFY FOR INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES, AS AUTHORIZED UNDER SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809. DECISION ALSO IS REQUESTED AS TO THE LENGTH OF TIME SUCH A MEMBER--- DULY ASSIGNED TO HAZARDOUS DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES--- MAY REMAIN IN A SICK IN LINE OF-DUTY STATUS OR A TEMPORARY DUTY STATUS WITHOUT AFFECTING HIS RIGHT TO INCENTIVE PAY.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949 IS IN PART AS FOLLOWS:

(A) SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES.

(7) DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES AS A PRIMARY DUTY, INCLUDING TRAINING FOR SUCH DUTY; * * *

EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN THE CAREER COMPENSATION ACT OF 1949, PROVIDES IN SECTION 9 (B) AS FOLLOWS:

SEC. 9. AS USED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949---

(B) THE TERM "DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS, INCLUDING MEMBERS IN TRAINING FOR SUCH DUTIES, WHO, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY, DEMOLISH BY THE USE OF EXPLOSIVES UNDER-WATER OBJECTS, OBSTACLES, OR EXPLOSIVES, OR RECOVER AND RENDER HARMLESS, BY DISARMING OR DEMOLITION, EXPLOSIVES WHICH, HAVING BEEN PROJECTED, LAUNCHED, DROPPED, OR LAID IN A NORMAL MANNER, HAVE FAILED TO EXPLODE AS INTENDED.

THE ADDITIONAL PAY AUTHORIZED UNDER SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949 IS INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY. AS INDICATED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 93, NEITHER SECTION 204 OF THE ACT NOR EXECUTIVE ORDER NO. 10152 SETS FORTH ANY SPECIFIC REQUIREMENT AS TO THE PRECISE PERIODS DURING WHICH INCENTIVE PAY FOR DUTY INVOLVING DEMOLITION OF EXPLOSIVES IS PAYABLE. HOWEVER, ADDITIONAL PAY FOR SUCH DUTY IS PRESCRIBED ON A MONTHLY BASIS AND IT WOULD APPEAR THAT BOTH THE ACT AND THE EXECUTIVE ORDER CONTEMPLATE THE ACTUAL PERFORMANCE OF DEMOLITION DUTY--- OR TRAINING FOR SUCH DUTY--- DURING AT LEAST A PORTION OF ANY MONTH TO QUALIFY FOR INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES FOR THAT MONTH, UNLESS, OF COURSE, THE FAILURE TO PERFORM SUCH DUTY DURING ANY MONTH RESULTS FROM INCAPACITY BECAUSE OF THE PERFORMANCE OF DEMOLITION DUTY, IN WHICH EVENT SECTION 10 OF THE EXECUTIVE ORDER PROVIDES THAT THE MEMBER SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY APPROPRIATE MEDICAL AUTHORITY. NEITHER THE CAREER COMPENSATION ACT OF 1949 NOR EXECUTIVE ORDER NO. 10152 CONTAINS ANY OTHER PROVISIONS UNDER WHICH INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES IS PAYABLE FOR MONTHS DURING WHICH NO SUCH DUTY ACTUALLY IS PERFORMED. IN CONNECTION WITH THIS MATTER THE FOLLOWING REMARKS CONCERNING THE EFFECT OF THE PROPOSAL TO ENACT LEGISLATION AUTHORIZING INCENTIVE PAY FOR DEMOLITION DUTY HAVE BEEN NOTED (PAGE 1608 OF THE HEARINGS BEFORE THE SUBCOMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2553):

MR. JOHNSON. I WANT TO HAVE AN EXPLANATION OF SUBSECTION (7). THAT IS THE DUTY INVOLVED IN THE DEMOLITION OF EXPLOSIVES AS A PRIMARY DUTY, INCLUDING TRAINING FOR SUCH DUTY. ARE THERE ANY MEN WHO ARE ON CONTINUOUS DUTY ON THAT JOB?

ADMIRAL FECHTELER. THAT REFERS PRIMARILY, MR. JOHNSON, TO THE UNDERWATER DEMOLITION TEAMS OF THE NAVY, AND WE HAVE UNDER THE 1950 BUDGET FOUR TEAMS; EACH TEAM CONSISTS OF 7 OFFICERS AND 28 ENLISTED MEN.

MR. JOHNSON. THAT IS THEIR CONTINUOUS JOB TO DO THAT?

ADMIRAL FECHTELER. THAT, AND THE TRAINING FOR IT.

MR. JOHNSON. IS THERE ANYBODY IN THE AIR FORCE OR IN THE ARMY THAT HAS ANYTHING TO DO WITH THIS?

GENERAL DAHLQUIST. WE HAVE NOT AT THIS TIME. HOWEVER, WE DID USE A GREAT MANY DEMOLITIONISTS DURING THE WAR, AND WE WILL HAVE TO TRAIN DEMOLITIONISTS IN PEACETIME. OUR ENGINEERS ARE INVOLVED.

MR. JOHNSON. IF YOU TRAINED FOR 2 MONTHS OF THE YEAR WOULD THEY BE PAID FOR ONLY THOSE 2 MONTHS?

GENERAL DAHLQUIST. THAT IS CORRECT; WHILE SO EMPLOYED.

MR. JOHNSON. THAT IS WHAT I WANTED TO FIND OUT. YOURS ARE THE SAME, ADMIRAL?

ADMIRAL FECHTELER. THEY ARE ONLY PAID AS LONG AS THEY ARE ON THAT JOB. THESE ARE THE MEN EMPLOYED WITH THE AMPHIBIOUS FORCES WHO SWIM IN AND DISPOSE OF OBSTACLES, AND THINGS OF THAT SORT.

THESE STATEMENTS APPEAR CONSISTENT WITH THE CONCLUSION THAT INCENTIVE PAY FOR DEMOLITION DUTY IS PAYABLE ONLY AS LONG AS THE MEMBERS ARE ENGAGED ON SUCH DUTY AND SUPPORT THE CONCLUSION THAT A MEMBER MUST ACTUALLY PERFORM DEMOLITION DUTY DURING ANY GIVEN MONTH TO QUALIFY FOR INCENTIVE PAY FOR SUCH DUTY. HOWEVER, THIS OFFICE WOULD NOT OBJECT TO THE PAYMENT OF INCENTIVE PAY FOR DEMOLITION DUTY TO A MEMBER, REQUIRED BY COMPETENT ORDERS TO PERFORM SUCH DUTY AS A PRIMARY DUTY, FOR ANY MONTH IN WHICH HE ACTUALLY PERFORMS SUCH DUTY, EVEN THOUGH FOR A PORTION OF THAT MONTH HE MAY BE CARRIED IN A SICK IN LINE OF-DUTY STATUS OR A TEMPORARY DUTY STATUS, DURING WHICH PERIOD OF SICKNESS OR TEMPORARY DUTY HE DOES NOT ACTUALLY PERFORM DUTIES INVOLVING DEMOLITION OF EXPLOSIVES OR TRAINING FOR SUCH DUTIES.