B-148716, JUN. 22, 1962

B-148716, JUN. 22, 1962

TO MAJOR GUSTAV J. GILLERT, JR., 080790, USA: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 9, 1962, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 14, 1962, DISALLOWING YOUR CLAIM FOR $183.33, REPRESENTING REFUND OF PARACHUTE PAY FOR THE PERIOD SEPTEMBER 11 TO OCTOBER 31, 1961. YOUR CLAIM WAS DISALLOWED FOR THE STATED REASON THAT COMPETENT ORDERS WERE NOT ISSUED REQUIRING YOU TO PERFORM DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY DURING THE PERIOD INVOLVED.

YOU STATE THAT, SINCE YOU HAD RECEIVED BOTH VERBAL AND WRITTEN ORDERS FROM THE DEPARTMENT OF THE ARMY ASSIGNING YOU TO AIRBORNE DUTY, RECEIVED WRITTEN ORDERS FROM MILITARY ASSISTANCE ADVISORY GROUP PLACING YOU ON AIRBORNE STATUS, HAVE PERFORMED YOUR REQUIRED PROFICIENCY JUMPS DURING THE PERIOD COVERED BY SAID ORDERS AND HAVE BEEN PLACED ON VALID (DA APPROVED) MAAG ORDERS, PARACHUTE PAY SHOULD BE APPROVED FOR THE ENTIRE PERIOD AUGUST 1961 THROUGH JANUARY 1962.

YOU STATE FURTHER THAT SINCE BEING ASSIGNED TO MAAG LAOS, YOU HAVE RECEIVED PARACHUTE PAY FOR THE MONTHS OF AUGUST 1961 THROUGH OCTOBER 1961; THAT YOUR PARACHUTE PAY FOR NOVEMBER AND DECEMBER 1961 WAS STOPPED PENDING RESOLUTION OF THE AUTHORITY OF THE CHIEF, MILITARY ASSISTANCE ADVISORY GROUP, TO PUBLISH VALID AIRBORNE ORDERS; THAT THIS ADMINISTRATIVE MATTER HAS SINCE BEEN RESOLVED AND THAT HEADQUARTERS, MILITARY ASSISTANCE ADVISORY GROUP, HAS AGAIN ISSUED ORDERS PLACING YOU ON AIRBORNE STATUS.

PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, INCLUDING DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY, IS AUTHORIZED BY SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235.

SECTION 8 (A) OF EXECUTIVE ORDER NO. 10152 PROVIDES AS FOLLOWS:

"AS USED IN SECTION 204A OF THE CAREER COMPENSATION ACT OF 1949, THE TERM "DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED BY MEMBERS WHO ARE NOT IN A FLYING-PAY STATUS AND WHO, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, HAVE RECEIVED A RATING AS A PARACHUTIST OR PARACHUTE RIGGER, OR ARE UNDERGOING TRAINING FOR SUCH A RATING, AND WHO ARE REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING FROM AN AIRCRAFT IN AERIAL FLIGHT.'

CHAPTER 2, CHANGE 20, PARAGRAPH 2-1, AR 37-104, DATED SEPTEMBER 25, 1959, PROVIDES THAT:

"ANY OFFICER OR ENLISTED MEMBER ENTITLED TO RECEIVE BASIC PAY WILL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF DUTY WHICH INVOLVES PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY, WHEN SUCH DUTY IS REQUIRED BY COMPETENT ORDERS.'

PARAGRAPH 2-5 PROVIDES THAT:

"THE TERM "COMPETENT ORDERS" WILL MEAN ORDERS ISSUED BY THE SECRETARY CONCERNED OR SUCH OFFICER OR OFFICERS AS THE SECRETARY MAY DESIGNATE, TO MEMBERS OF THEIR RESPECTIVE SERVICES OR TO MEMBERS OF OTHER SERVICES WHEN SUCH LATTER MEMBERS ARE PERFORMING DUTY WITH A SERVICE OTHER THAN THEIR OWN.'

BY DA SPECIAL ORDERS NUMBER 179, DATED JULY 20, 1961, YOU WERE RELEASED FROM HEADQUARTERS, 101ST AIRBORNE DIVISION, FORT CAMPBELL, KENTUCKY, EFFECTIVE SEPTEMBER 4, 1961, AND ASSIGNED USA ELM MAAG (9778) VIENTIANE, LADS, TO ARRIVE OVERSEAS DESTINATION NOT LATER THAN SEPTEMBER 12, 1961. SPECIAL ORDERS NUMBER 27, ISSUED SEPTEMBER 14, 1961, BY HEADQUARTERS, MILITARY ASSISTANCE ADVISORY GROUP TO LAOS, SHOWS YOU WERE ASSIGNED TO PARACHUTE DUTY AT VIENTIANE AND THAT YOU WERE REQUIRED TO ENGAGE IN PARACHUTE JUMPING AS AN INHERENT AND ESSENTIAL PART OF YOUR MILITARY DUTY. SPECIAL ORDERS NUMBER 14, DATED JANUARY 16, 1962, SAME HEADQUARTERS, PROVIDES THAT YOU, AMONG OTHERS, WERE REQUIRED TO ENGAGE IN PARACHUTE JUMPING AS AN INHERENT AND ESSENTIAL PART OF YOUR MILITARY DUTIES.

COPY OF EXTRACT OF LETTER DATED JANUARY 16, 1962, FROM DEPARTMENT OF THE ARMY, WASHINGTON, .C., TO THE CHIEF, HEADQUARTERS, MILITARY ASSISTANCE ADVISORY GROUP, LAOS, CONTAINS APPROVAL OF A PREVIOUS REQUEST FROM MAAG FOR DESIGNATION OF 19 PARACHUTE POSITIONS AND ADVISE THAT CHMAAG IS AUTHORIZED TO ISSUE ORDERS REQUIRING THE INCUMBENT OF DESIGNATED PARACHUTE POSITIONS TO ENGAGE IN PARACHUTE JUMPS. THAT LETTER EXPRESSLY PROVIDES THAT RETROACTIVE PARACHUTE ORDERS ARE NOT AUTHORIZED AND DENIES THE REQUEST FOR VALIDATION OF ORDERS PREVIOUSLY ISSUED FROM CHMAAG, LAOS. THERE IS NOTHING CONTAINED IN SPECIAL ORDERS NUMBER 179 ASSIGNING YOU TO LAOS WHICH PLACES YOU IN A PARACHUTE DUTY STATUS AND THERE IS NOTHING IN THE PRESENT RECORD WHICH INDICATES THAT ANY ORDERS TO PARACHUTE DUTY WHICH MAY HAVE BEEN IN EFFECT DURING YOUR ASSIGNMENT TO 101ST AIRBORNE DIVISION WERE NOT TERMINATED UPON YOUR RELEASE FROM THAT ASSIGNMENT. THE FACT THAT YOU WERE ATTACHED TO AN AIRBORNE UNIT WITHOUT A STATEMENT IN THE ORDERS THAT THE DUTY INVOLVED PARACHUTE JUMPING AS AN INHERENT AND ESSENTIAL PART THEREOF WOULD NOT ENTITLE YOU TO PAYMENT OF PARACHUTE PAY.

YOUR INITIAL CLAIM WAS FOR THAT PARACHUTE PAY RECOUPED FOR THE PERIOD SEPTEMBER 11 TO OCTOBER 31, 1961. FROM THE INFORMATION CONTAINED IN YOUR LETTER REQUESTING RECONSIDERATION OF OUR DISALLOWANCE OF YOUR CLAIM AND THE ENCLOSURES RECEIVED WITH THAT LETTER, IT MUST BE CONCLUDED THAT UNTIL ISSUANCE OF THE ABOVE AUTHORIZATION BY THE DEPARTMENT OF THE ARMY ON JANUARY 16, 1962, NO AUTHORITY EXISTED FOR THE PAYMENT TO YOU OF PARACHUTE DUTY PAY IN CONNECTION WITH THE DUTY UNDER SPECIAL ORDERS NUMBER 179 DATED JULY 20, 1961. THE ORDERS ISSUED BY MAAG PRIOR TO THE JANUARY 1962 AUTHORIZATION OF THE DEPARTMENT OF THE ARMY, WASHINGTON, D.C., MAY NOT BE CONSIDERED COMPETENT ORDERS TO AUTHORIZE THE PAYMENT OF PARACHUTE PAY.

ACCORDINGLY, THE DISALLOWANCE OF MARCH 14, 1962, IS SUSTAINED. OUR DEFENSE ACCOUNTING AND AUDITING DIVISION IS BEING ADVISED TO DEFER COLLECTION ACTION FOR ANY ADDITIONAL REFUND REQUIRED IN THE PREMISES FOR A REASONABLE TIME TO AFFORD YOU AN OPPORTUNITY TO SEEK THE ADMINISTRATIVE REMEDY MENTIONED IN PARAGRAPH 3C OF THE LETTER OF JANUARY 16, 1962, FROM THE DEPARTMENT OF THE ARMY, WASHINGTON, D.C., TO CHIEF, MILITARY ASSISTANCE ADVISORY GROUP. WITH REFERENCE TO PARAGRAPH 3B OF THAT LETTER, THE PRINCIPLE ENUNCIATED IN 40 COMP. GEN. 642 IS FOR APPLICATION AND YOU MAY NOT BE CONSIDERED TO HAVE BEEN IN A DE FACTO STATUS SO AS TO BE ENTITLED TO THE PARACHUTE PAY INVOLVED. SEE, ALSO 23 COMP. GEN. 578, 581- 2.