B-124437, NOV. 1, 1955

B-124437, NOV. 1, 1955

TO LIEUTENANT COLONEL DONALD A. LAFACE, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF MAY 23, 1955, WITH ENCLOSURES, REQUESTS A DECISION WHETHER CREDIT IS LEGALLY AUTHORIZED IN THE ACCOUNT OF CAPTAIN THOMAS F. COOTS, 01342246, FOR INCENTIVE PAY FOR DEMOLITION DUTY BEGINNING DECEMBER 19, 1953.

BY PARAGRAPH 15, SPECIAL ORDERS NO. 39, ORDNANCE CORPS, ABERDEEN PROVING GROUND, MARYLAND, DATED FEBRUARY 26, 1954, CONFIRMING VERBAL ORDERS OF DECEMBER 19, 1953, CAPTAIN COOTS WAS ASSIGNED TO DUTY AT THAT STATION AS BOMB DISPOSAL OFFICER AND PROJECT OFFICER EFFECTIVE DECEMBER 19, 1953. ORDERS DATED DECEMBER 1, 1954, HE WAS ASSIGNED TO DUTY AS CHIEF, RESEARCH AND DEVELOPMENT BRANCH, ORDNANCE EXPLOSIVE DISPOSAL OFFICE, AND ADDITIONAL DUTY AS SUPPLY OFFICER. IT APPEARS THAT AT THE PRESENT TIME HE IS ASSIGNED TO THE ORDNANCE EXPLOSIVE DISPOSAL OFFICE AS CHIEF OF THE RESEARCH AND DEVELOPMENT BRANCH.

YOU SAY IN SUBSTANCE THAT THE MISSION AND FUNCTION OF THE ORDNANCE EXPLOSIVE DISPOSAL OFFICE AND RESEARCH AND DEVELOPMENT BRANCH IS TO MAINTAIN LIAISON ON TECHNICAL EXPLOSIVE ORDNANCE MATTERS WITH AGENCIES HAVING AN INTEREST IN SUCH MATTERS; PREPARE PLANS AND STUDIES; CONDUCT RESEARCH AND DEVELOPMENT; EVALUATE INFORMATION ON UNITED STATES AND FOREIGN EXPLOSIVE ORDNANCE; DEVELOPMENT OF METHODS AND TECHNIQUES OF DISPOSAL IN THE FIELD; DEVELOPMENT OF SPECIAL EQUIPMENT FOR DEMOLITION OF EXPLOSIVES; AND TO PERFORM OTHER EXPLOSIVE ORDNANCE DISPOSAL ACTIVITIES AS DIRECTED BY THE CHIEF OF ORDNANCE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 805, PROVIDES IN PART THAT:

"/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 WAS ISSUED PURSUANT TO SUCH STATUTORY PROVISIONS AND SECTION 9 (B) PROVIDES THAT:

"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.'

ALSO SEE PARAGRAPH 2B (1), ARMY REGULATIONS 35-1260, DATED JUNE 13, 1952.

IN DECISION OF OCTOBER 13, 1954, 34 COMP. GEN. 173, IT WAS HELD THAT MEMBERS OF THE UNIFORMED SERVICES WHO PURSUANT TO COMPETENT ORDERS ARE ASSIGNED TO DUTIES INVOLVING RESEARCH, DEVELOPMENT AND TESTING OF SPECIAL EXPLOSIVE ORDNANCE TOOLS AND EQUIPMENT MAY NOT BE CONSIDERED AS PERFORMING DUTY INVOLVING DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF SECTION 9 (B) OF EXECUTIVE ORDER NO. 10152 SO AS TO BE ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, IN THE ABSENCE OF A SHOWING THAT SUCH DUTY MET THE REQUIREMENTS OF THE LAW AND REGULATIONS REGARDING DEMOLITION OF EXPLOSIVES. IT WAS STATED IN THAT DECISION THAT, UNLESS ALL ESSENTIAL ELEMENTS PRESCRIBED BY THE REGULATIONS ARE PRESENT, IT CANNOT BE SAID THAT INDIVIDUALS HANDLING EXPLOSIVE ORDNANCE, NO MATTER HOW HAZARDOUS THEIR SITUATION MAY BE, ARE PERFORMING DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF THOSE REGULATIONS.

IT WAS HELD IN DECISION OF JUNE 24, 1954, 33 COMP. GEN. 602, THAT WHILE NEITHER SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 NOR EXECUTIVE ORDER NO. 10152 STATES ANY PREMISE 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.

THE CLAIM OF CAPTAIN COOTS FOR INCENTIVE PAY IS BASED ON THE PROVISIONS OF PARAGRAPH 9B OF EXECUTIVE ORDER NO. 10152, AND PARAGRAPH 2B (1) OF ARMY REGULATION 35-1260, PROVIDING FOR SUCH PAY INCIDENT TO THE RECOVERY AND RENDERING HARMLESS BY DISARMING OR DEMOLITION OF EXPLOSIVE OBJECTS WHICH HAVE BEEN PROJECTED, LAUNCHED, DROPPED, OR LAID IN A NORMAL MANNER AND HAVE FAILED TO EXPLODE AS INTENDED.

HE HAS SUBMITTED IN SUPPORT OF HIS CLAIM A GENERAL STATEMENT THAT HE PERFORMED DUTY INVOLVING THE DEMOLITION OF EXPLOSIVES WITHIN THE MEANING OF THE REGULATIONS. SUCH GENERAL STATEMENT IS SUBSTANTIATED BY A CERTIFICATE OF HIS SUPERIOR OFFICER, MAJOR LEADLAY H. OGDEN, WHICH IS ALSO GENERAL IN NATURE. NEITHER THE STATEMENT OF CAPTAIN COOTS NOR THE CERTIFICATE OF MAJOR OGDEN SHOW SPECIFICALLY THE DEMOLITION DUTIES PERFORMED OR THE MONTHS IN WHICH SUCH DUTIES WERE PERFORMED. ALSO, CAPTAIN COOTS SAYS THAT COLONEL JOHN S. WALKER, THE DEPUTY PRESIDENT OF THE ORDNANCE BOARD, REFUSED TO ISSUE A CERTIFICATE TO THE EFFECT THAT THE DUTIES PERFORMED ON WHICH THE CLAIM IS PREDICATED WAS A PRIMARY DUTY WITHIN THE MEANING OF THE REGULATIONS. THUS, THE RECORD PRESENTED DOES NOT CLEARLY SHOW TO WHAT EXTENT THE EXPLOSIVE OBJECTS INVOLVED, IF ANY, HAD BEEN PROJECTED, ETC., IN A NORMAL MANNER BUT HAD FAILED TO EXPLODE AS INTENDED. ALSO, THE RECORD FAILS TO SHOW SPECIFICALLY THE MONTHS IN WHICH SUCH DUTY ON WHICH THE CLAIM IS BASED WAS PERFORMED AND, IF PERFORMED, WHETHER IT WAS A PRIMARY DUTY. HENCE, ON THE PRESENT RECORD, WE ARE UNABLE TO DETERMINE WHETHER CAPTAIN COOTS ACTUALLY PERFORMED SUCH DUTY DURING ANY MONTH OF THE PERIOD INVOLVED SO AS TO BE ENTITLED TO INCENTIVE PAY FOR DEMOLITION DUTY.

HE WOULD BE ENTITLED, HOWEVER, TO INCENTIVE PAY FOR DEMOLITION DUTY FOR EACH MONTH BEGINNING DECEMBER 19, 1953, FOR WHICH HE COULD FURNISH SATISFACTORY EVIDENCE SHOWING THE DATES AND CIRCUMSTANCES IN WHICH, PURSUANT TO COMPETENT ORDERS AND AS A PRIMARY DUTY, HE ACTUALLY PERFORMED DEMOLITION DUTY BY DISARMING OR DEMOLITION OF EXPLOSIVES WHICH HAD BEEN PROJECTED, ETC., IN A NORMAL MANNER BUT HAD FAILED TO EXPLODE AS INTENDED.