B-167862, DEC. 12, 1969

B-167862, DEC. 12, 1969

PAY--ADDITIONAL--PARACHUTE DUTY--JUMP REQUIREMENTS WAIVER SETTLEMENT OF AUG. 20, 1969 DENYING MEMBER "PARACHUTE PAY" FROM NOV. 1965 TO APR. 1966 WHILE SERVING WITH UNITED STATES ARMY IN VIETNAM IS SUSTAINED FOR WHILE MEMBER WOULD BE ENTITLED TO PARACHUTE PAY UNDER EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964 AND APPLICABLE REGULATIONS UPON SHOWING THAT APPROPRIATE COMMANDING OFFICER HAD WAIVED PARACHUTE JUMP REQUIREMENT UPON DETERMINATION THAT MEMBER WAS UNABLE TO PERFORM REQUIRED JUMPS BECAUSE OF ENGAGEMENT IN COMBAT OPERATIONS IN DESIGNATED HOSTILE FIRE AREA, THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE TO ESTABLISH MEMBER'S QUALIFICATIONS FOR PARACHUTE PAY PURSUANT TO GOVERNING LAW AND IMPLEMENTING REGULATIONS AND PRESENT RECORD AFFORDS NO LEGAL BASIS FOR FAVORABLE ACTION ON CLAIM.

TO MR. RICHARD W. HURLBUT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1969, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PARACHUTE PAY FOR THE PERIOD NOVEMBER 1965 TO APRIL 1966 WHILE SERVING WITH THE UNITED STATES ARMY IN VIETNAM.

THE RECORD SHOWS THAT ON OCTOBER 21, 1968, YOU EXECUTED A STANDARDIZED CLAIM FORM IN WHICH YOU ADVISED THAT AFTER YOU WERE ASSIGNED TO FORT DEVENS, MASSACHUSETTS, YOU DISCOVERED THAT YOU WERE ELIGIBLE FOR "PARACHUTIST PAY" FOR THE PERIOD NOVEMBER 1965 TO APRIL 1966 UNDER A "NEWLY ENACTED REGULATION COVERING NON-AVAILABILITY OF AIRCRAFT," BUT BECAUSE YOU COULD NOT OBTAIN REQUIRED DOCUMENTATION OR FORMS FOR EXECUTION YOU DID NOT FURTHER PURSUE THE MATTER UNTIL AFTER SEPARATION FROM THE ARMY ON OCTOBER 17, 1968. YOU ALSO ADVISED THAT YOU WERE PLACED IN A "JUMP STATUS" BY "SO 144 DTD 30 JULY 1965, HQS 3RD RRU APO SAN FRANCISCO 96307" AND THAT YOUR UNIT, THE 404TH ASA DETACHMENT (ABN BDE), WAS ASSIGNED TO THE 173RD AIRBORNE BRIGADE UNDER DESCRIBED GENERAL ORDERS AND THAT YOU WERE NOT PAID AT FORT DEVENS BECAUSE THE PERSONNEL WERE UNFAMILIAR WITH AIRBORNE UNITS AND JUMP PAY.

THE ONLY DOCUMENTATION WHICH ACCOMPANIED YOUR CLAIM IS A COPY OF SPECIAL ORDERS NO. 137, HEADQUARTERS, 3RD RADIO RESEARCH UNIT, APO SAN FRANCISCO 96307, DATED JULY 20, 1965, SHOWING UNDER PARAGRAPH 1 THEREOF THAT IN CONFIRMATION OF VERBAL ORDERS DATED JUNE 17, 1965, YOU WERE REQUIRED TO PERFORM PARACHUTE DUTY EFFECTIVE JUNE 17, 1965, UNDER THE AUTHORITY OF ARMY REGULATIONS NOS. 37-104 AND 600-106.

ON APRIL 29, 1969, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED YOUR CLAIM AND SUPPORTING PAPERS TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION. BY SETTLEMENT DATED AUGUST 20, 1969, YOUR CLAIM WAS DISALLOWED BECAUSE OF THE LACK OF A CERTIFICATION BY THE COMMANDING OFFICER THAT AIRCRAFT WAS NOT AVAILABLE FOR THE PERFORMANCE OF THE REQUIRED JUMP OR THAT THE REQUIREMENTS WERE WAIVED BECAUSE OF MILITARY OPERATIONS.

IN YOUR LETTER OF AUGUST 26, 1969, YOU EXPLAINED THAT CERTIFICATION OF NONAVAILABILITY OF AIRCRAFT WAS NOT ISSUED TO ANY INDIVIDUAL IN THE 173RD AIRBORNE BRIGADE BUT TO THE FINANCE SECTION OF THAT ORGANIZATION. IN THIS CONNECTION YOU ASSERTED THAT THE RECORDS OF YOUR UNIT WERE KEPT BY THE 3RD RADIO RESEARCH UNIT UNTIL EARLY IN 1967 AND, THEREFORE, YOU CONTEND THAT IF THE 173RD AIRBORNE BRIGADE HAD THOSE RECORDS UNDER THEIR CONTROL DURING THE INVOLVED PERIOD YOU WOULD HAVE RECEIVED THE PARACHUTE PAY NOW CLAIMED. ALSO, IN SUPPORT OF YOUR CLAIM YOU HAVE FORWARDED A LETTER DATED DECEMBER 14, 1967, ADDRESSED TO YOU BY THE BRIGADE FINANCE OFFICE, 173RD AIRBORNE BRIGADE (SEPARATE), ADVISING THAT EFFECTIVE NOVEMBER 1, 1965, THAT ORGANIZATION WAS COVERED FOR PARACHUTE PAY BY "COPS (COMBAT OPERATIONS)" AND THAT "UNDER COPS IT WAS NOT, AND IS NOT NECESSARY TO MAKE A JUMP FOR COVERAGE.'

SECTION 108 (C) OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, WITH LAST SENTENCE AS ADDED BY EXECUTIVE ORDER NO. 11259, DATED DECEMBER 3, 1965, READS AS FOLLOWS:

"/C) WHENEVER, UNDER AUTHORITY CONFERRED BY THE SECRETARY CONCERNED, THE COMMANDING OFFICER OF ANY MEMBER WHO HAS BEEN REQUIRED BY COMPETENT ORDERS TO PARTICIPATE IN PARACHUTE JUMPING CERTIFIES THAT ON ACCOUNT OF THE ABSENCE OF JUMP EQUIPMENT OR AIRCRAFT OR ON ACCOUNT OF MILITARY OPERATIONS OF THE PARTICULAR COMMAND SUCH MEMBER WAS UNABLE TO MAKE THE JUMPS REQUIRED BY THIS SUBSECTION, SUCH MEMBER MAY COMPLY WITH THE MINIMUM REQUIREMENTS BY PERFORMING FOUR JUMPS DURING A PERIOD OF 12 CONSECUTIVE CALENDAR MONTHS, AND SUCH REQUIREMENTS MAY BE MET AT ANY TIME DURING SUCH PERIOD. THE MINIMUM REQUIREMENTS MAY BE WAIVED BY THE COMMANDING OFFICER OF A MEMBER FOR ANY PERIOD THAT THE MEMBER IS UNABLE TO PERFORM THE REQUIRED JUMPS BY REASON OF BEING ENGAGED IN COMBAT OPERATIONS IN A HOSTILE FIRE AREA DESIGNATED UNDER SECTION 310 OF TITLE 37 OF THE UNITED STATES CODE.'

UNDER THE PROVISIONS OF THE ABOVE EXECUTIVE ORDER AND APPLICABLE REGULATIONS YOU WOULD BE ENTITLED TO PARACHUTE PAY, IF OTHERWISE QUALIFIED, FOR THE PERIOD CLAIMED UPON A SHOWING THAT THE APPROPRIATE COMMANDING OFFICER HAD WAIVED THE PARACHUTE JUMP REQUIREMENTS UPON A DETERMINATION THAT YOU WERE UNABLE TO PERFORM THE REQUIRED JUMPS BECAUSE OF YOUR ENGAGEMENT IN COMBAT OPERATIONS IN A DESIGNATED HOSTILE FIRE AREA.

A COPY OF SPECIAL ORDERS 144, DATED JULY 30, 1965, MENTIONED ABOVE, HAS NOT BEEN FURNISHED FOR THE RECORD, NOR IS THERE ON FILE A COPY OF THE WAIVER AUTHORITY EXECUTED PURSUANT TO THE REGULATIONS BY APPROPRIATE AUTHORITY FOR THE 173RD AIRBORNE BRIGADE. ALSO, THERE IS NOTHING IN THE AVAILABLE RECORD TO VERIFY YOUR CONTENTION THAT YOU WERE A MEMBER OF A UNIT WHICH WAS ASSIGNED OR ATTACHED TO THE 173RD AIRBORNE BRIGADE DURING THE PERIOD COVERED BY THE WAIVER AUTHORITY, THAT IS, SUBSEQUENT TO OCTOBER 31, 1965. IN THE ABSENCE OF SUCH EVIDENCE, WE ARE UNABLE TO DETERMINE THE CONDITIONS AND EXTENT OF THE WAIVER AUTHORITY MENTIONED IN THE ABOVE LETTER OF DECEMBER 14, 1967, AND WHETHER IT COVERED ASSIGNED AND ATTACHED UNITS. FURTHERMORE, EVEN IF SUCH WAIVER AUTHORITY COVERED ASSIGNED AND ATTACHED UNITS, WE CANNOT ASCERTAIN WHETHER YOU WERE A MEMBER OF ONE OF SUCH UNITS DURING THE PERIOD OF YOUR CLAIM.

SINCE THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE TO ESTABLISH YOUR QUALIFICATION FOR THE PARACHUTE PAY PURSUANT TO THE GOVERNING LAW AND IMPLEMENTING REGULATIONS, WE MUST HOLD THAT THE PRESENT RECORD AFFORDS NO LEGAL BASIS FOR FAVORABLE ACTION ON YOUR CLAIM.