B-163657, JUL. 16, 1968

B-163657, JUL. 16, 1968

TO GUNNERY SERGEANT THOMAS R. EDNEY 1340291:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 14, 1968, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 12, 1968, WHICH DISALLOWED YOUR CLAIM FOR PROFICIENCY PAY (P-2) AS AN ITEM OF SAVED PAY FOR THE PERIOD SEPTEMBER 1, 1966, THROUGH OCTOBER 9, 1967.

THE RECORD SHOWS THAT YOU WERE APPOINTED TO THE RANK OF TEMPORARY WARRANT OFFICER (W-1) EFFECTIVE SEPTEMBER 1, 1966. BY ORDERS DATED SEPTEMBER 19, 1967, YOUR TEMPORARY APPOINTMENT WAS TERMINATED AND YOU REVERTED TO YOUR PERMANENT ENLISTED STATUS ON OCTOBER 9, 1967, THE DATE OF DELIVERY OF THOSE ORDERS.

YOUR CLAIM FOR PROFICIENCY PAY, P-2, FOR THE PERIOD YOU HELD YOUR TEMPORARY APPOINTMENT WAS DISALLOWED BY SETTLEMENT DATED JANUARY 12, 1968, FOR THE REASON THAT UNDER THE REGULATIONS PROFICIENCY PAY MAY BE RETAINED AS AN ITEM OF SAVED PAY ONLY WHEN SPECIFICALLY AUTHORIZED BY THE COMMANDANT OF THE MARINE CORPS.

IN YOUR PRESENT LETTER YOU SAY THAT YOUR DECISION TO ACCEPT APPOINTMENT TO WARRANT OFFICER WAS BASED ON MARINE CORPS ORDER (MCO) 1040.25 WHICH STATED THAT YOU WOULD NOT SUFFER ANY REDUCTION IN PAY AS A RESULT OF THE APPOINTMENT. IT APPEARS TO BE YOUR VIEW THAT SINCE YOU WERE NOT INFORMED THAT MCO 1040.25 DID NOT INCLUDE PROFICIENCY PAY AS AN ITEM SAVED TO YOU UPON YOUR ACCEPTANCE OF APPOINTMENT TO WARRANT OFFICER (W-1), THAT YOUR CLAIM FOR SUCH PAY FOR THE PERIOD SEPTEMBER 1, 1966, TO OCTOBER 9, 1967, SHOULD BE ALLOWED.

PAYMENT OF PROFICIENCY PAY TO AN ENLISTED MEMBER OF A UNIFORMED SERVICE IS AUTHORIZED BY SECTION 307 OF TITLE 37, U.S.C. WHICH PROVIDES THAT THE SECRETARY CONCERNED SHALL PRESCRIBE THE CRITERIA UNDER WHICH MEMBERS ARE ELIGIBLE FOR A PROFICIENCY RATING. THE STATUTE PROVIDES FURTHER THAT SECTION 307 SHALL BE ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE UNIFORMED SERVICES UNDER HIS JURISDICTION. PARAGRAPH 4C-3 (D), DEPARTMENT OF DEFENSE DIRECTIVE NO. 1340.2 DATED JUNE 26, 1963, PRESCRIBING THE POLICIES COVERING THE AWARD OF PROFICIENCY PAY TO ENLISTED MEMBERS UNDER SECTION 307 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"D. MEMBERS RECEIVING PROFICIENCY PAY (SPECIALTY) SHALL BE UTILIZED IN THE SPECIALTY ON WHICH THE PAY IS BASED. WHEN ANY MEMBER RECEIVING PROFICIENCY PAY (SPECIALTY) IS ASSIGNED OR DETAILED TO ANY DUTY NOT REQUIRING THE SPECIALTY ON WHICH THE PAY IS BASED, SUCH PAY WILL BE TERMINATED AT THE TIME OF THAT ASSIGNMENT OR DETAIL.'

IN OUR DECISION OF JANUARY 9, 1959, TO THE SECRETARY OF DEFENSE, 38 COMP. GEN. 487, COPY HEREWITH, WE HELD THAT ENLISTED MEMBERS OF THE NAVY OR MARINE CORPS WHO ARE RECEIVING PROFICIENCY PAY AT THE TIME OF APPOINTMENT TO OFFICER STATUS UNDER 10 U.S.C. 5586, 5589 AND 5596, ARE ENTITLED UNDER THE SAVED PAY PROVISIONS OF THOSE SECTIONS TO RECEIVE AT LEAST THE PAY AND ALLOWANCES THEY WERE RECEIVING BEFORE THEIR APPOINTMENTS AS OFFICERS, INCLUDING PROFICIENCY PAY, BUT IF THE MEMBERS DO NOT CONTINUE TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY AFTER THEIR APPOINTMENTS THEIR PROFICIENCY PAY IS NOT SAVED TO THEM.

UPON YOUR REQUEST FOR RECONSIDERATION OF THE SETTLEMENT OF JANUARY 12, 1968, BY LETTER DATED MARCH 25, 1968, TO THE COMMANDING OFFICER, MARINE CORPS FINANCE CENTER, KANSAS CITY, MISSOURI, WE REQUESTED A FURTHER REPORT WHETHER FOR THE PERIOD SEPTEMBER 1, 1966, TO OCTOBER 9, 1967, YOU CONTINUED TO MEET THE PRESCRIBED CONDITIONS OF ELIGIBILITY FOR PROFICIENCY PAY. IN LETTER DATED APRIL 17, 1968, THE COMMANDING OFFICER, MARINE CORPS FINANCE CENTER, KANSAS CITY, MISSOURI, STATED IN PERTINENT PART AS FOLLOWS: "* * * YOU INQUIRE WHETHER GUNNERY SERGEANT THOMMY R. EDNEY, 1340291, U.S. MARINE CORPS, PERFORMED DUTIES DURING THE PERIOD 1 SEPTEMBER 1966 TO 9 OCTOBER 1967 WHICH WOULD HAVE QUALIFIED HIM FOR A CONTINUATION OF HIS PROFICIENCY PAY. DURING THAT PERIOD, SERGEANT EDNEY WAS SERVING UNDER A TEMPORARY APPOINTMENT (10 U.S.C. 5596) AS A WARRANT OFFICER (W-1) WITH THE ASSIGNED PRIMARY DUTIES OF ASSISTANT INSPECTOR-INSTRUCTOR, RADIO RELAY AND CONSTRUCTION COMPANY, 12TH COMMUNICATIONS BATTALION, U.S. MARINE CORPS RESERVE.

"THE MARINE CORPS' PROFICIENCY PAY REGULATIONS ARE CONTAINED IN MARINE CORPS ORDER 7220.12D. THAT ORDER, ADDRESSING THE MATTER OF ELIGIBILITY TO PROFICIENCY PAY (SPECIALTY), THE TYPE HERE INVOLVED, STATES IN PART THAT THE MARINE MUST -BE SERVING IN A BILLET REQUIRING THIS SKILL. - SERGEANT EDNEY'S MILITARY OCCUPATIONAL SPECIALTY AT THE TIME OF HIS TEMPORARY APPOINTMENT WAS 2861 (RADIO TECHNICIAN). ON AND AFTER THE DATE OF HIS TEMPORARY APPOINTMENT, HE WAS ASSIGNED PRIMARY DUTIES AS ASSISTANT INSPECTOR-INSTRUCTOR. THE PROFICIENCY PAY REGULATIONS REQUIRE THAT A MARINE'S PROFICIENCY PAY BE TERMINATED, -IF HE IS ASSIGNED TO ANY DUTY NOT REQUIRING THE SPECIALTY ON WHICH THE PAY IS BASED. THE EFFECTIVE DATE OF TERMINATION WILL BE THE DATE OF REASSIGNMENT.- "IT IS OUR VIEW THAT REGULATIONS REQUIRED PROFICIENCY PAY BE TERMINATED IN THIS CASE ON 1 SEPTEMBER 1966, BECAUSE WARRANT OFFICER EDNEY COMMENCED TO SERVE IN A BILLET WHICH DID NOT REQUIRE THE SKILL ON WHICH HIS PROFICIENCY PAY WAS BASED.'

THUS, IT APPEARS THAT IMMEDIATELY PRIOR TO YOUR TEMPORARY APPOINTMENT AS A WARRANT OFFICER ON SEPTEMBER 1, 1966, YOU WERE FILLING THE BILLET OF RADIO TECHNICIAN AND RECEIVING PROFICIENCY PAY INCIDENT TO THAT ASSIGNMENT, THAT BEING A SPECIALTY FOR WHICH SUCH PAY MAY BE AWARDED. WHEN APPOINTED A TEMPORARY WARRANT OFFICER, HOWEVER, YOU WERE ASSIGNED TO DUTY AS ASSISTANT INSPECTOR-INSTRUCTOR WHICH BILLET DID NOT REQUIRE THE SKILL ON WHICH YOUR PROFICIENCY PAY WAS BASED.

CONSEQUENTLY, YOUR LOSSS OF PROFICIENCY PAY WAS BECAUSE OF YOUR REASSIGNMENT TO A BILLET THE DUTIES OF WHICH DID NOT CONTINUE TO QUALIFY YOU FOR SUCH PAY AND, HENCE, IT COULD NOT BE CONTINUED ON A SAVED-PAY BASIS. THE FACT THAT YOU WERE NOT FULLY INFORMED THAT YOU WOULD NOT CONTINUE TO RECEIVE PROFICIENCY PAY UPON YOUR APPOINTMENT AS A TEMPORARY OFFICER AND REASSIGNMENT OF PRIMARY DUTIES AFFORDS NO LEGAL BASIS TO ALLOW YOUR CLAIM.

SEE OUR DECISION OF THIS DATE, B-138132, TO THE SECRETARY OF THE NAVY, COPY HEREWITH.

ACCORDINGLY, FOR THE FOREGOING REASONS THE SETTLEMENT OF JANUARY 12, 1968, IS SUSTAINED.