B-134623, FEBRUARY 26, 1958, 37 COMP. GEN. 546

B-134623, FEBRUARY 26, 1958, 37 COMP. GEN. 546

MILITARY PERSONNEL - HELIUM-OXYGEN PERFORMANCE DIVES - INCENTIVE PAY - REQUIREMENTS HELIUM-OXYGEN DIVING INCENTIVE PAY IS PAYABLE ON THE BASIS OF ACTUAL PERFORMANCE OF DIVES, INCLUDING DIVES TO MAINTAIN PROFICIENCY, IN THE ABSENCE OF ANY SPECIFIC PERIODIC PERFORMANCE REQUIREMENTS IN 37 U.S.C. 235 OR IN THE IMPLEMENTING EXECUTIVE ORDERS; AND A CERTIFICATION TO THE DISBURSING OFFICER THAT A MEMBER HAS PERFORMED HELIUM-OXYGEN DIVES SUFFICIENT TO QUALIFY FOR INCENTIVE PAY FOR A PARTICULAR THREE-MONTH PERIOD IS PROPER, EVEN THOUGH THE ENTIRE THREE MONTHS HAVE NOT EXPIRED AND PROVIDED THAT THE MEMBER'S DUTY ASSIGNMENT ON BOARD A HELIUM-OXYGEN EQUIPPED VESSEL HAS NOT BEEN TERMINATED.

TO THE SECRETARY OF DEFENSE, FEBRUARY 26, 1958:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 9, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING THE CREDITING OF INCENTIVE PAY FOR THE PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY. THE QUESTIONS AND A DISCUSSION OF THE MATTER ARE SET FORTH IN COMMITTEE ACTION NO. 201 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 19, 20, 37 U.S.C. SUPP. III 235 (A), AUTHORIZES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING "DUTY INVOLVING THE USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP-SEA DIVING.' REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY OF SECTION 204 AND 501 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 AND 301 (D), ARE CONTAINED IN EXECUTIVE ORDER NO. 10618, JUNE 28, 1955. SECTION 9 OF THE EXECUTIVE ORDER, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(G) THE TERM "DUTY INVOLVING THE USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP-SEA DIVING" SHALL BE CONSTRUED TO MEAN THE PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY ABOARD HELIUM-OXYGEN EQUIPPED VESSELS BY MEMBERS ASSIGNED TO THAT DUTY.

THE FOLLOWING QUESTIONS ARE PRESENTED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 201:

1. IS THE CREDIT OF INCENTIVE PAY (HELIUM-OXYGEN DIVING) DEPENDENT UPON THE PERIODIC PERFORMANCE OF ACTUAL HELIUM-OXYGEN DIVES IN DIRECT CONNECTION WITH AN ASSIGNMENT TO DUTY IN WHICH SUCH DIVES MAY BE REQUIRED?

2. IF THE FOREGOING QUESTION IS ANSWERED IN THE AFFIRMATIVE, MAY A CERTIFICATION TO THE DISBURSING OFFICER THAT HELIUM-OXYGEN DIVING REQUIREMENTS HAVE BEEN FULFILLED COVER SEVERAL MONTHS, INCLUDING FUTURE MONTHS?

IT IS STATED IN THE DISCUSSION IN COMMITTEE ACTION NO. 201 THAT THE DEPARTMENT OF THE NAVY, THROUGH THE ISSUANCE OF THE FOLLOWING REGULATIONS FOR THE IMPLEMENTATION OF EXECUTIVE ORDER NO. 10618, PLACED UPON ITSELF WHAT IS NOW BELIEVED TO BE CUMBERSOME AND UNWARRANTED PROCEDURE FOR THE CREDIT OF HELIUM-OXYGEN DIVING INCENTIVE PAY--- PRESUMABLY SUCH REGULATIONS WERE ISSUED UNDER THE PROVISIONS OF PARAGRAPH 12 OF EXECUTIVE ORDER NO. 10152, AS AMENDED. THE REGULATIONS IN QUESTION ARE CONTAINED IN PARAGRAPH 1044117, NAVY COMPTROLLER MANUAL, AND PROVIDE, IN PERTINENT PART AS FOLLOWS:

B. DIVING REQUIREMENTS

(1) GENERAL. MEMBERS REQUIRED BY COMPETENT ORDERS TO ENGAGE IN THE USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP SEA DIVING ARE REQUIRED TO PERFORM DURING ANY THREE CONSECUTIVE CALENDAR MONTHS ONE OR MORE DIVES USING A HELIUM-OXYGEN BREATHING MIXTURE FROM A VESSEL THAT IS HELIUM-OXYGEN EQUIPPED. IN COMPUTING THE PERIOD OF THREE CONSECUTIVE MONTHS, A FRACTIONAL PART OF A MONTH WILL BE CONSIDERED AS A FULL MONTH.

(2) MILITARY OPERATIONS. WHEN MILITARY OPERATIONS (INCLUDING OPERATIONS UNDER OTHER THAN COMBAT CONDITIONS) PREVENT A MEMBER FROM MEETING DIVING REQUIREMENTS DURING ANY THREE CONSECUTIVE CALENDAR MONTHS, THE MEMBER MAY MEET SUCH REQUIREMENTS BY PERFORMING TWO DIVES IN THE THREE CALENDAR MONTHS IMMEDIATELY FOLLOWING THE THREE MONTHS IN WHICH THE DIVING REQUIREMENTS WERE NOT MET. THIS PROVISION PERMITS HELIUM-OXYGEN DIVING PAY TO BE CREDITED FOR ANY THREE CONSECUTIVE CALENDAR MONTHS OR A LESSER NUMBER OF CONSECUTIVE CALENDAR MONTHS FOR WHICH DIVING REQUIREMENTS ARE MET; THEN AT THE END OF THE SIX MONTH PERIOD, A COMPUTATION MAY BE MADE OF ALL DIVES PERFORMED AND, IF DIVING REQUIREMENTS HAVE BEEN MET FOR THE SIX MONTH PERIOD, RETROACTIVE CREDIT WILL BE MADE FOR THE MONTHS FOR WHICH DIVING PAY WAS NOT CREDITED PREVIOUSLY. THE COMMANDING OFFICER'S CERTIFICATE THAT MILITARY OPERATIONS OF THE COMMAND PREVENTED PERFORMANCE OF REQUIRED DIVES WILL ACCOMPANY OR BE ENDORSED ON THE MILITARY PAY ORDER ( DD FORM 114) OR ORDER TO ADJUST ACCOUNT (1NAVMC FORM 801-1SD) SUBMITTED AT THE END OF THE SIX MONTH PERIOD.

2. SUBSTANTIATION. CREDIT OF INCENTIVE PAY (HELIUM-OXYGEN DIVING) WILL BE SUBSTANTIATED BY A 11DD FORM 114 OR NAVMC FORM 801-1SD CONTAINING THE COMMANDING OFFICER'S CERTIFICATE OF THE FOLLOWING:

1. THAT THE MEMBER PERFORMED DUTY UNDER COMPETENT ORDERS INVOLVING

THE BREATHING OF HELIUM-OXYGEN MIXTURE IN THE EXECUTION OF DEEP SEA

DIVING.

2. THAT THE MEMBER PERFORMED THE REQUIRED DIVES. DD FORM 114 OR NAVMC FORM 801-1SD WILL BE SUBMITTED AS A SUBSTANTIATION VOUCHER AT THE END OF EACH MONTH FOR WHICH A MEMBER QUALIFIES FOR HELIUM-OXYGEN DIVING INCENTIVE PAY.

IN COMMENTING ON THE ABOVE REGULATIONS, THE COMMITTEE ACTION POINTS OUT THAT THE REQUIREMENT FOR A MONTHLY CERTIFICATION BY THE COMMANDING OFFICER THAT A MEMBER HAS MET THE NECESSARY PERFORMANCE REQUIREMENTS PRIOR TO THE CREDIT OF HELIUM-OXYGEN DIVING INCENTIVE PAY CREATES A PAPERWORK BURDEN; THAT THE REQUIREMENT THAT SPECIFIC DIVING REQUIREMENTS BE MET PRIOR TO THE TIME THE INCENTIVE PAY IS CREDITED DELAYS THE NORMAL RECEIPT OF SUCH PAY WHICH HAS A DELETERIOUS EFFECT ON THE MORALE OF THE MEMBERS; THAT THE REQUIREMENT OF A MONTHLY PERFORMANCE CERTIFICATE RESTRICTS THE PAYMENT OF SUCH PAY TO ONLY ONE PAYDAY PER MONTH; AND THAT WHEN THE OPERATIONS OF A VESSEL PREVENT A MEMBER FROM MEETING ACTUAL DIVING REQUIREMENTS ON A REGULAR BASIS, THE MEMBER'S INCENTIVE PAY FOR THIS TYPE OF DUTY MAY BE DELAYED FOR AS MUCH AS SIX MONTHS. THE COMMITTEE ACTION FURTHER STATES THAT THE PRIMARY MISSION OF HELIUM-OXYGEN EQUIPPED VESSELS IS FOR THE RESCUE OF SUBMARINES AND THE READINESS OF THE COMMAND TO PERFORM THIS MISSION IS DEPENDENT ON THE HIGHEST STATE OF DIVER TRAINING. IT IS STATED THAT THESE VESSELS ARE REQUIRED TO PERFORM FUNCTIONS IN CONNECTION WITH PROVIDING SERVICES TO SUBMARINES OTHER THAN HELIUM-OXYGEN DIVING, I.E., TARGET SERVICES, TORPEDO RECOVERY, STANDBY SERVICES FOR SUBMERGED TESTS, ETC.

IN SUPPORT OF THE CONTENTION THAT CREDIT OF HELIUM-OXYGEN DIVING INCENTIVE PAY MAY BE PAID ON THE BASIS OF DIVES PERFORMED TO MAINTAIN PROFICIENCY, AS OPPOSED TO PERIODIC PERFORMANCE OF SUCH DIVES, THERE IS CITED ARTICLE A-4303 (1) (J), BUREAU OF NAVAL PERSONNEL MANUAL, WHICH READS AS FOLLOWS:

(J) THE TERM " DUTY INVOLVING THE USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP SEA DIVING" SHALL BE CONSTRUED TO MEAN THE PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY, INCLUDING TEMPORARY AND TEMPORARY ADDITIONAL DUTY) ABOARD HELIUM OXYGEN EQUIPPED VESSELS BY MEMBERS ASSIGNED TO THAT DUTY. MASTER DIVERS, DIVERS FIRST CLASS, DEEP SEA DIVERS AND DEEP SEA DIVING OFFICERS ONLY ARE QUALIFIED FOR SUCH ASSIGNMENT. THE NUMBER OF ENLISTED DIVERS SO ASSIGNED ON ANY SUCH VESSEL SHALL NOT EXCEED THE TOTAL NUMBER OF MASTER DIVERS, DIVERS FIRST CLASS AND DEEP SEA DIVERS AUTHORIZED FOR THAT VESSEL BY THE CHIEF OF NAVAL PERSONNEL. DIVING REQUIREMENTS ARE FULFILLED WHEN THE COMMANDING OFFICER CERTIFIES THAT HELIUM-OXYGEN DIVING PROFICIENCY OF ALL QUALIFIED MEMBERS ABOARD THE VESSEL HAS BEEN MAINTAINED. THIS CERTIFICATION WILL BE MADE QUARTERLY AND WILL BE INCLUDED IN THE REPORT OF A HELIUM-OXYGEN DIVING OPERATION OF SUFFICIENT MAGNITUDE TO MERIT THE CONCURRENCE OF THE SQUADRON AND TYPE COMMANDERS. THE CERTIFICATION WILL LIST THE PERSONNEL ASSIGNED TO THE HELIUM-OXYGEN DIVING DUTY AND WILL ALSO INCLUDE A BRIEF SUMMARY OF OTHER DIVING ENGAGED IN DURING THE QUARTER. FOUR HELIUM-OXYGEN DIVES OVER A YEARLY PERIOD AVERAGING ONE DIVE PER QUARTER ARE THE MINIMUM NECESSARY FOR EACH MAN TO MAINTAIN HIS PROFICIENCY AND TO SATISFY THESE REQUIREMENTS. TYPE COMMANDERS WILL FORWARD THE REPORTS AND ENDORSEMENTS THERETO TO THE U.S. NAVAL SCHOOL, DEEP SEA DIVERS FOR USE IN THE TRAINING OF STUDENT DIVERS AND FOR COMPARISON OF DIVING OPERATIONS. THE REPORTS AND ENDORSEMENTS WILL BE MAINTAINED THERE FOR A MINIMUM OF 2 YEARS FOR RECORD PURPOSES. THE FOREGOING ARE THE MINIMUM DIVING REQUIREMENTS CONSIDERED NECESSARY FOR A MEMBER TO MAINTAIN HIS PROFICIENCY IN THE USE OF HELIUM-OXYGEN. * * * ( ITALICS SUPPLIED.)

THE MINIMUM PROFICIENCY REQUIREMENTS FOR HELIUM-OXYGEN DUTY CITED ABOVE AND AS POINTED OUT IN THE COMMITTEE ACTION DISCUSSION, EQUAL THE SAME TOTAL DIVING PERFORMANCE PER YEAR AS THOSE ESTABLISHED FOR THE CREDIT OF INCENTIVE PAY IN THE NAVY COMPTROLLER MANUAL. THE PROFICIENCY REQUIREMENTS, HOWEVER, ALLOW THE PERFORMANCE OF SUCH DIVES THROUGHOUT THE YEAR WITHOUT FURTHER DEFINITE LIMITATION AS TO THE PERIOD IN WHICH THE DIVES MUST BE PERFORMED.

THE TERM "DUTY INVOLVING USE OF HELIUM-OXYGEN FOR A BREATHING MIXTURE IN THE EXECUTION OF DEEP-SEA DIVING" AS THAT TERM IS USED IN THE 1949 ACT, AS AMENDED, 37 U.S.C. SUPP. III 235, IS DEFINED IN SECTION 9 (G) OF EXECUTIVE ORDER NO. 10618 TO MEAN "THE PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY ABOARD HELIUM-OXYGEN EQUIPPED VESSELS BY MEMBERS ASSIGNED TO THAT DUTY.' IN THAT CONNECTION, IN CONSIDERING THE BILL H.R. 4720, 84TH CONGRESS, ST SESSION, WHICH BECAME THE CAREER INCENTIVE ACT OF 1955, 37 U.S.C. 232 NOTE, PARTICULARLY THAT PART RELATING TO THE PAYMENT OF INCENTIVE PAY HERE IN QUESTION, IT WAS STATED IN SENATE REPORT NO. 125, AT PAGE 13," THEY ARE EMPLOYED IN SALVAGE AND REPAIR OPERATIONS FOR THE FLEET. THE USE OF HELIUM-OXYGEN PERMITS DIVING TO MUCH GREATER DEPTHS THAN WITH COMPRESSED AIR, CONSEQUENTLY THE HAZARDS ARE MARKEDLY INCREASED.' UNLIKE THE SPECIFIC PERIODIC PERFORMANCE REQUIREMENTS IN THE EXECUTIVE ORDER FOR ENTITLEMENT TO INCENTIVE PAY FOR DUTY INVOLVING AERIAL FLIGHTS, GLIDER FLIGHTS AND PARACHUTE JUMPS, THERE IS NOTHING IN THE ACT OR THE EXECUTIVE ORDER PRESCRIBING ANY SPECIFIC DIVING REQUIREMENTS FOR ENTITLEMENT TO INCENTIVE PAY FOR HELIUM-OXYGEN DIVING DUTY. RATHER, THE EXECUTIVE ORDER MERELY REQUIRES PERFORMANCE OF HELIUM-OXYGEN DIVING DUTY. IN CONNECTION WITH THE TERM "PERFORMANCE" AS USED IN THE EXECUTIVE ORDER, IT IS STATED IN COMMITTEE ACTION NO. 201 THAT SINCE NORMAL SHIP OPERATIONS REQUIRE MEMBERS TO PERFORM HELIUM-OXYGEN DIVING AND SINCE EACH MEMBER ASSIGNED TO SUCH DIVING DUTY MUST PERFORM ACTUAL DIVES TO MAINTAIN HIS PROFICIENCY FOR CONTINUED ASSIGNMENT TO THIS TYPE OF DUTY, THE NAVY BELIEVES THAT THE TERMS OF EXECUTIVE ORDER NO. 10152, AS AMENDED BY 10618, ARE FULFILLED "BY ASSIGNMENT TO AND PERFORMANCE OF THE DUTY.' WE FIND NO BASIS TO QUESTION THOSE VIEWS, IF THE WORDS "PERFORMANCE OF THE DUTY" REFER TO THE PERFORMANCE OF DIVES. IT IS OUR VIEW THAT BOTH THE LAW AND EXECUTIVE ORDER CONTEMPLATE PAYMENT OF INCENTIVE PAY FOR THE ACTUAL PERFORMANCE OF DIVES. ON THAT BASIS QUESTION ONE IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING YOUR SECOND QUESTION, THERE WOULD APPEAR TO BE NO OBJECTION TO A CERTIFICATION THAT A PARTICULAR MEMBER HAD PERFORMED DIVES SUFFICIENT TO QUALIFY FOR INCENTIVE PAY OTHERWISE CREDITABLE FOR THE PAST PART OF A PARTICULAR 3-MONTH PERIOD AND THE REMAINDER OF THAT 3-MONTH PERIOD. FOR EXAMPLE, IN THE CASE OF A MEMBER ASSIGNED TO DUTY ON BOARD A HELIUM-OXYGEN EQUIPPED VESSEL ON JANUARY 1, 1958, AND WHO PERFORMS A HELIUM-OXYGEN DIVE IN FEBRUARY 1958, A CERTIFICATE AS TO THAT DIVE SHOULD BE SUFFICIENT TO ENTITLE HIM TO INCENTIVE PAY FROM JANUARY 1, 1958, TO MARCH 31, 1958. DIVE PERFORMED IN MARCH 1958, UNDER THE PRESENT REGULATION, WOULD ENTITLE THAT MEMBER TO INCENTIVE PAY FOR THE TWO FOLLOWING MONTHS, APRIL AND MAY, PROVIDED, OF COURSE, HIS DUTY ASSIGNMENT ON BOARD A HELIUM-OXYGEN EQUIPPED VESSEL IS NOT TERMINATED.