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PAY - ADDITIONAL -HAZARDOUS DUTY - MORE THAN ONE INCENTIVE PAY QUALIFIED PARACHUTE RIGGERS IN A JUMP STATUS WHO ARE PART OF A UNIT ASSIGNED A MISSION INVOLVING THE DEVELOPMENT. STUDY EXPERIMENTAL EQUIPMENT ARE NOT RELATED TO AIRCREW DUTIES WITHIN THE MEANING OF 37 U.S.C. 301 (A) (1) AND (4). THE MEMBERS NEITHER PERFORMING TWO OR MORE HAZARDOUS DUTIES SIMULTANEOUSLY OR IN RAPID SUCCESSION ARE NOT ENTITLED TO RETAIN THE DUAL HAZARDOUS PAY RECEIVED FOR AVIATION AND PARACHUTE DUTIES. 1968: REFERENCE IS MADE TO YOUR FIRST ENDORSEMENT DATED MARCH 26. REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF AUTHORIZING DUAL HAZARDOUS DUTY PAY TO CERTAIN MEMBERS OF HIS COMMAND WHO ARE STATED TO BE PERFORMING TEST PARACHUTIST DUTIES AND AIRCREW DUTIES IN THE CIRCUMSTANCES DESCRIBED BELOW.

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B-164186, JUNE 13, 1968, 47 COMP. GEN. 728

PAY - ADDITIONAL -HAZARDOUS DUTY - MORE THAN ONE INCENTIVE PAY QUALIFIED PARACHUTE RIGGERS IN A JUMP STATUS WHO ARE PART OF A UNIT ASSIGNED A MISSION INVOLVING THE DEVELOPMENT, TESTING, AND EVALUATION OF PARACHUTES AND RELATED EQUIPMENT DO NOT PERFORM MULTIPLE HAZARDOUS DUTIES TO ENTITLE THEM TO THE FLIGHT PAY PRESCRIBED IN 37 U.S.C. 301 (E) IN ADDITION TO PARACHUTE PAY. THE IN-FLIGHT DUTIES OF THE MEMBERS WHO LOAD, INSPECT, RIG, DROP, AND STUDY EXPERIMENTAL EQUIPMENT ARE NOT RELATED TO AIRCREW DUTIES WITHIN THE MEANING OF 37 U.S.C. 301 (A) (1) AND (4), AND THE MEMBERS NEITHER PERFORMING TWO OR MORE HAZARDOUS DUTIES SIMULTANEOUSLY OR IN RAPID SUCCESSION ARE NOT ENTITLED TO RETAIN THE DUAL HAZARDOUS PAY RECEIVED FOR AVIATION AND PARACHUTE DUTIES, AND, THEREFORE, THE ERRONEOUS FLIGHT PAYMENTS MADE TO THEM SHOULD BE RECOVERED.

TO LIEUTENANT J. E. HATFIELD, DEPARTMENT OF THE NAVY, JUNE 13, 1968:

REFERENCE IS MADE TO YOUR FIRST ENDORSEMENT DATED MARCH 26, 1968, ON LETTER OF THE COMMANDING OFFICER, U.S. NAVAL AEROSPACE RECOVERY FACILITY, EL CENTRO, CALIFORNIA, DATED MARCH 21, 1968, FORWARDED HERE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY DATED APRIL 29, 1968, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF AUTHORIZING DUAL HAZARDOUS DUTY PAY TO CERTAIN MEMBERS OF HIS COMMAND WHO ARE STATED TO BE PERFORMING TEST PARACHUTIST DUTIES AND AIRCREW DUTIES IN THE CIRCUMSTANCES DESCRIBED BELOW. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-993 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT THE NAVAL AEROSPACE RECOVERY FACILITY, AS THE U.S. NAVY PORTION OF THE DEPARTMENT OF DEFENSE JOINT PARACHUTE TEST FACILITY,"IS ASSIGNED THE MISSION TO CONDUCT DEVELOPMENT, TEST, AND EVALUATION OF PARACHUTES AND RELATED ASSEMBLIES; HUMAN ESCAPE METHODS AND SYSTEMS; RETARDATION AND RECOVERY SYSTEMS AND RESCUE, SURVIVAL AND PERSONNEL SAFETY EQUIPMENT; STABILIZATION, RETARDATION AND RECOVERY SYSTEMS FOR LAYDOWN TYPE WEAPONS, AIRCRAFT, MISSILE AND CAPSULE ASSEMBLIES; SPECIAL LOGISTICS AERIAL DELIVERY METHODS, TECHNIQUES AND EQUIPMENT.' THE PARACHUTE DEPARTMENT SUPPORTS THIS MISSION IN VARIOUS MANNERS INCLUDING PACKING, RIGGING, FABRICATION, DROP TESTING, AND LIVE JUMPING.

DUE TO THE NATURE OF THE MISSION CERTAIN DUTIES ARE PERFORMED IN FLIGHT IN ADDITION TO PARACHUTE JUMPING, INCLUDING JUMP MASTER, AIRBORNE DROP CONTROLLER, LOADMASTER, AND AIRBORNE EXPERIMENTAL EQUIPMENT INSPECTOR. ENLISTED MEN ASSIGNED TO THESE DUTIES WHO ARE RATED PARACHUTE RIGGERS UNDER ORDERS TO DUTY INVOLVING PARACHUTE JUMPING WERE ISSUED TEMPORARY OR INDEFINITE FLIGHT ORDERS "TO DUTY IN A FLYING STATUS INVOLVING OPERATIONAL OR TRAINING FLIGHTS AS A CREW MEMBER/NONCREW MEMBER.' IT APPEARS THAT SUCH PERSONNEL WERE PAID DUAL HAZARDOUS DUTY PAYMENTS DURING 1965, 1966, AND 1967, AND THAT DURING THE 1965 AND 1966 ADMINISTRATIVE AUDIT, SUPPORTING DOCUMENTS USED TO JUSTIFY DUAL PAYMENTS WERE NOT QUESTIONED. HOWEVER, REPORT OF AN ON SITE EXAMINATION OF DOCUMENTS SUPPORTING PAYMENT OF MILITARY PAY AND ALLOWANCES DATED OCTOBER 10, 1967, NOTED DISCREPANCIES IN THE PAYMENT OF AVIATION PAY FOR THE FOLLOWING REASONS:

INVESTIGATION OF PROCEDURES UTILIZED CONCERNING PAYMENT OF INCENTIVE PAY DISCLOSED THAT ENLISTED QUALIFIED PARACHUTISTS ATTACHED TO THE NAVAL AEROSPACE RECOVERY FACILITY WERE CREDITED WITH DUAL HAZARDOUS PAY FOR AVIATION AND PARACHUTE PAY. VERIFICATION OF SUPPORTING EVIDENCE TO SUBSTANTIATE PROPER ENTITLEMENT TO DUAL HAZARDOUS PAY INVOLVING AVIATION AND PARACHUTE DUTIES REVEALED THAT THE PARACHUTISTS CONCERNED ARE ONLY ENTITLED TO PARACHUTE PAY..

THE ENLISTED PERSONNEL INVOLVED ARE QUALIFIED PARACHUTISTS AND THE IN- FLIGHT DUTIES PERFORMED WERE INCIDENTAL TO PREPARATION OF PERFORMING A SUCCESSFUL JUMP INVOLVING TESTING, RESEARCH, AND DEVELOPMENT OF PARACHUTE TECHNIQUES. THEREFORE, ORDERS TO DUTY INVOLVING FLYING SHOULD NOT HAVE BEEN ISSUED AND THE MEMBERS CONCERNED ARE NOT ENTITLED TO AVIATION PAY.

YOU SAY THAT THESE DUAL PAYMENTS CEASED AT THE TIME OF THE AUDIT AND THAT YOU HAVE HELD CHECK AGE ON PREVIOUS PAYMENTS IN ABEYANCE PENDING OUR DECISION ON THE MATTER.

PRIOR TO OCTOBER 1, 1963, A MEMBER OF THE UNIFORMED SERVICES WAS ENTITLED TO BE PAID ONLY ONE INCENTIVE PAY FOR HAZARDOUS DUTY, AS AUTHORIZED BY SUBSECTION (E) OF 3M U.S.C. 301, THEN IN EFFECT, FOR ANY PERIOD OF TIME DURING WHICH HE MET THE QUALIFICATIONS FOR MORE THAN ONE INCENTIVE PAY. BY SECTION 8 OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 216, SUBSECTION (E) WAS AMENDED TO ALLOW NOT MORE THAN TWO PAYMENTS OF HAZARDOUS DUTY INCENTIVE PAY FOR A PERIOD OF TIME DURING WHICH A MEMBER QUALIFIES FOR MORE THAN ONE PAYMENT OF THAT PAY.

THE LEGISLATIVE HISTORY OF THE 1963 AMENDMENT SHOWS THAT THE COMMITTEES CONSIDERING THE BILL, WHICH BECAME PUBLIC LAW 88-132, WERE GREATLY CONCERNED THAT THE PROPOSED LEGISLATION COULD BE ABUSED AND A REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE GAVE ASSURANCE THAT THE PROVISION FOR DUAL HAZARDOUS DUTY PAY WOULD BE IMPLEMENTED BY REGULATION IN SUCH A WAY AS TO PREVENT ANY POSSIBLE ABUSES.

SECTION 112, EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, 29 F.R. 7983, AS AMENDED, PROVIDES THAT:

SEC. 112. UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, A MEMBER WHO PERFORMS MULTIPLE HAZARDOUS DUTIES UNDER COMPETENT ORDERS MAY BE PAID NOT MORE THAN TWO PAYMENTS OF INCENTIVE PAY FOR A PERIOD OF TIME DURING WHICH HE QUALIFIES FOR MORE THAN ONE SUCH PAYMENT. DUAL PAYMENTS OF INCENTIVE PAY SHALL BE LIMITED TO THOSE MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM SPECIFIC MULTIPLE HAZARDOUS DUTIES IN ORDER TO CARRY OUT THEIR ASSIGNED MISSIONS.

VARIOUS REGULATIONS AND POLICY STATEMENTS ISSUED BY THE MILITARY DEPARTMENTS CONCERNING ENTITLEMENT TO DUAL PAYMENT OF HAZARDOUS DUTY PAY HAVE NOW BEEN COMPILED AS PARAGRAPH 20305 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, WHICH PROVIDES IN PART AS FOLLOWS:

MEMBERS WHO QUALIFY FOR INCENTIVE PAY FOR MORE THAN ONE TYPE OF HAZARDOUS DUTY MAY RECEIVE NO MORE THAN TWO PAYMENTS FOR THE SAME PERIOD. DUAL INCENTIVE PAY IS LIMITED TO THOSE MEMBERS REQUIRED BY ORDERS TO PERFORM SPECIFIC MULTIPLE HAZARDOUS DUTIES NECESSARY FOR SUCCESSFUL ACCOMPLISHMENT OF THE MISSION OF THE UNIT TO WHICH ASSIGNED. A MEMBER WHO IS UNDER COMPETENT ORDERS TO PERFORM MORE THAN ONE HAZARDOUS DUTY, BUT IS ENTITLED TO ONLY ONE TYPE OF INCENTIVE PAY, MAY RECEIVE PAYMENT FOR THE HAZARDOUS DUTY FOR WHICH THE HIGHER RATE OF INCENTIVE PAY IS AUTHORIZED, EVEN THOUGH THAT HAZARDOUS DUTY IS NOT THE PRIMARY DUTY OF HIS CURRENT ASSIGNMENT.

A. CONDITIONS OF ENTITLEMENT. THE HAZARDOUS DUTIES FOR WHICH DUAL INCENTIVE PAY IS MADE MUST BE INTERDEPENDENT AND PERFORMED EITHER SIMULTANEOUSLY OR IN RAPID SUCCESSION WHILE CARRYING OUT THE DUTIES REQUIRED TO ACCOMPLISH THE MISSION OF THE UNIT INVOLVED. MEMBERS MUST MEET MINIMUM REQUIREMENTS FOR EACH OF THE HAZARDOUS DUTIES, EXCEPT WHEN INJURY OR INCAPACITY AS THE RESULT OF PERFORMANCE OF HAZARDOUS DUTY IS INVOLVED.

ARTICLE C-7403, BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES THE FOLLOWING QUALIFICATIONS FOR AIRCREWMEN:

(1) THE TRAINING OF AIRCREWMEN IS ACCOMPLISHED IN THE FLEET, IN CERTAIN SHORE BASED ACTIVITIES DESIGNATED BY THE CHIEF, BUREAU OF NAVAL WEAPONS, AND IN THOSE NAVAL AIR TRAINING COMMAND ACTIVITIES DESIGNATED BY THE CHIEF OF NAVAL AIR TRAINING.

(2) AN AIRCREWMAN IS A MEMBER NORMALLY OF AN AVIATION RATING WHO MEETS THE FOLLOWING REQUIREMENTS:

(A) IS A VOLUNTEER FOR AIRCREW DUTY.

(B) IS QUALIFIED ACCORDING TO THE PHYSICAL AND PSYCHOLOGICAL REQUIREMENTS ESTABLISHED BY THE BUREAU OF MEDICINE AND SURGERY AT THE TIME OF DESIGNATION AND ANNUALLY THEREAFTER.

(C) SUCCESSFULLY COMPLETES THE COURSE OF INSTRUCTION AND MEETS THE OPERATIONAL STANDARDS FOR DESIGNATION AS AIRCREWMAN PRESCRIBED BY THE CHIEF OF NAVAL OPERATIONS.

(3) COMMANDING OFFICERS ARE AUTHORIZED TO DESIGNATE AS AIRCREWMAN (AC) ENLISTED PERSONNEL WHO SATISFACTORILY MEET THE REQUIREMENTS SPECIFIED IN PARAGRAPH (2) ABOVE.

IT IS PROVIDED IN ARTICLE A-4304 (3) OF THAT MANUAL THAT:

(3) TEMPORARY FLIGHT ORDERS MAY BE ISSUED ONLY TO THE FOLLOWING ENLISTED PERSONNEL WHOSE DUTIES REQUIRE FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS:

(A) AVIATION RATINGS AND STRIKERS FOR AVIATION RATINGS.

(B) STUDENTS UNDERGOING TRAINING WHICH SPECIFICALLY REQUIRES THEIR PARTICIPATION IN FREQUENT AND REGULAR FLIGHTS.

(C) OTHER RATINGS WHO ARE SPECIFICALLY ASSIGNED AS REGULAR MEMBERS OF FLIGHT CREWS, SUCH AS HOSPITAL CORPSMEN WHO ARE REGULAR ASSIGNED CREW MEMBERS OF SEARCH AND RESCUE AND HOSPITAL EVACUATION FLIGHTS AND FLIGHT ORDERLIES.

THIS DOES NOT INCLUDE PERSONNEL DETAILED TO DUTY AS COURIERS, SENTRIES AND MESSENGERS, ETC.

SUBPARAGRAPH (5) OF THAT ARTICLE PROVIDES THAT:

(5) NON-CREW MEMBER FLIGHT ORDERS MAY BE ISSUED TO PERSONNEL UNDER THE FOLLOWING CONDITIONS:

(A) ENLISTED PERSONNEL UNDER INSTRUCTION IN AN ESTABLISHED SCHOOL OR COURSE IN WHICH AIRBORNE INSTRUCTION IS PART OF THE CURRICULUM AND CLEARLY CONTRIBUTES TO THE TECHNICAL KNOWLEDGE OF THE TRAINEE. THIS INCLUDES PERSONNEL PARTICIPATING IN A PRESCRIBED COURSE OF INSTRUCTION IN AN AIRCRAFT SQUADRON TO QUALIFY AS AN AIRCREWMAN IN THE TYPE AIRCRAFT OF THAT SQUADRON.

(B) ENLISTED PERSONNEL WHOSE DUTIES REQUIRE FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS FOR SUCH PURPOSES AS INSTALLATION, TEST, RESEARCH, OR EVALUATION OF AIRBORNE TECHNICAL EQUIPMENT WHICH CANNOT BE PERFORMED BY OTHER PERSONS ALREADY UNDER FLIGHT ORDERS.

(C) THE ASSIGNMENT OF NON-CREW MEMBERS TO DUTY INVOLVING FLYING IS OF A TEMPORARY NATURE. IN ALL CASES THE FLIGHT ORDERS WILL TERMINATE WHEN THE PROJECT OR INSTRUCTION IS COMPLETED.

IT IS CLEAR, FROM THE FOREGOING, THAT IN ORDER TO BE ENTITLED TO DUAL HAZARDOUS DUTY INCENTIVE PAYMENTS, A MEMBER MUST BE ACTUALLY INVOLVED IN THE PERFORMANCE OF TWO OR MORE HAZARDOUS DUTIES SIMULTANEOUSLY OR IN RAPID SUCCESSION WHILE CARRYING OUT THE DUTIES REQUIRED TO ACCOMPLISH THE MISSION OF HIS UNIT, ANY ONE OF WHICH HAZARDOUS DUTIES WOULD PLACE HIM IN A STATUS ENTITLING HIM TO INCENTIVE PAY FOR THAT DUTY.

IN ORDER TO BE ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, A MEMBER MUST BE A CREW MEMBER OR NONCREW MEMBER IN A FLYING STATUS WHO IS ACTUALLY PERFORMING THE DUTIES OF A CREW MEMBER OR A NONCREW MEMBER. IF HEIS FLYING AS A PASSENGER OR AS A PERSON BEING TRANSPORTED TO AN AIR POSITION FROM WHICH HE MAY PERFORM HIS ASSIGNED DUTIES AS OBSERVER, PARACHUTIST, HIGH ALTITUDE TESTER OF AVIATION EQUIPMENT, ETC., A RIGHT TO FLYING PAY IS NOT ESTABLISHED. SEE 43 COMP. GEN. 667 AND 44 ID. 426. THE PERSONNEL HERE INVOLVED ARE QUALIFIED PARACHUTE RIGGERS IN A JUMP STATUS WHO ARE PART OF A UNIT WHICH HAS BEEN ASSIGNED A MISSION INVOLVING THE DEVELOPMENT, TESTING AND EVALUATION OF PARACHUTES AND RELATED EQUIPMENT. IN ADDITION TO THE FLIGHTS NORMALLY REQUIRED TO PLACE A PARACHUTIST IN POSITION FOR A LIVE PARACHUTE JUMP, THESE MEN ARE REQUIRED TO LOAD, INSPECT, RIG, DROP, AND STUDY EXPERIMENTAL EQUIPMENT. PART OF THEIR DUTIES ARE PERFORMED IN FLIGHT AND WHILE IT APPEARS THAT THEY GIVE CERTAIN DIRECTIONS CONCERNING THE POSITIONING OF THE PLANE INVOLVED AND OTHER MATTERS NECESSARY FOR THE PROPER RELEASE AND STUDY OF THE TEST EQUIPMENT, IT IS NOT SHOWN THAT THEY PERFORM ANY FLIGHT DUTIES RELATING TO THE AIRPLANE OR WHICH CONTRIBUTE TO ITS SAFE AND EFFICIENT OPERATION.

NOTWITHSTANDING THE DETAILED INFORMATION AS TO THE QUALIFICATIONS FOR, AND DUTIES OF, JUMP MASTER, AIRBORNE DROP CONTROLLER, LOADMASTER, AND AIRBORNE EXPERIMENTAL EQUIPMENT INSPECTOR AND THE FLIGHT ORDERS WHICH WERE ISSUED BY THE COMMANDER TO INDIVIDUALS EMPLOYED IN THOSE CAPACITIES, WE MUST CONCLUDE THAT THE RECORD FURNISHED US DOES NOT ESTABLISH THAT THE PERSONNEL INVOLVED WERE IN FACT ACTING AS CREW MEMBERS OR NONCREW MEMBERS WITHIN THE MEANING OF 37 U.S.C. 301 (A) (1) AND (4) WHILE CARRYING OUT THE MISSION OF THEIR UNIT SO AS TO ENTITLE THEM, PURSUANT TO SUBSECTION (E), TO FLIGHT PAY IN ADDITION TO PARACHUTE PAY.

ACCORDINGLY, PAYMENT OF FLIGHT PAY UNDER THE CIRCUMSTANCES INVOLVED WAS ERRONEOUS AND APPROPRIATE STEPS SHOULD BE TAKEN TO RECOVER BACK THE OVERPAYMENTS SO MADE.

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