B-160435, AUGUST 21, 1968, 48 COMP. GEN. 86

B-160435, AUGUST 21, 1968, 48 COMP. GEN. 86

PAY - ADDITIONAL - PROFICIENCY PAY - "SUPERIOR PERFORMANCE" AWARDS UNDER 37 U.S.C. 307, WHICH PROVIDES THAT AN ENLISTED MEMBER OF THE UNIFORMED SERVICES ENTITLED TO BASIC PAY AND DESIGNATED AS SPECIALLY PROFICIENT IN A MILITARY SKILL MAY BE PAID PROFICIENCY PAY, REGULATIONS THAT DO NOT CONFORM TO THE INTENDED PURPOSE OF THE "SUPERIOR PERFORMANCE" CATEGORY OF AWARD ESTABLISHED PURSUANT TO SECTION 307--- AN INCENTIVE FOR THE ACHIEVEMENT AND MAINTENANCE OF SUPERIOR PERFORMANCE BY A MEMBER IN HIS CURRENT PAY GRADE--- BUT PRESCRIBE ELIGIBILITY FOR AN AWARD ON THE BASIS OF QUALIFYING FOR PROMOTION TO THE NEXT HIGHER PAY GRADE ARE REGULATIONS THAT ARE NOT CONSISTENT WITH SECTION 307, AND, THEREFORE, PAYMENTS OF PROFICIENCY PAY IN THE SUPERIOR PERFORMANCE CATEGORY THAT DO NOT RELATE TO A MEMBER'S CURRENT PAY GRADE BUT ON ELIGIBILITY FOR PROMOTION IN GRADE MAY NOT BE AUTHORIZED. PAY - ADDITIONAL - PROFICIENCY PAY - "SPECIAL AWARD" CRITERIA THE PROFICIENCY PAY PROVIDED BY 37 U.S.C. 307 FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES QUALIFYING IN AN OCCUPATION OR SKILL MAY NOT BE PAID TO MEMBERS ASSIGNED TO A HEADQUARTERS TOUR OF DUTY AS A "SPECIAL AWARD," WHERE THE COMMANDING OFFICER IS AUTHORIZED TO ASSIGN AND TERMINATE AWARDS AT HIS DISCRETION OR UPON TRANSFER OF A MEMBER FROM THE ASSIGNMENT. AWARD OF A PROFICIENCY RATING ON THE BASIS OF A BILLET OCCUPIED, WITH NOT CRITERIA ESTABLISHED WITH RESPECT TO PERFORMANCE OF THE DUTIES OF A MEMBER'S RATING OR ASSIGNMENT DOES NOT PROVIDE A SUFFICIENT BASIS FOR PAYMENT OF PROFICIENCY PAY.

TO C. C. GORDON, UNITED STATES COAST GUARD, AUGUST 21, 1968:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1968, WITH ENCLOSURES REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF PROFIENCY PAY TO CERTAIN MEMBERS AS SHOWN ON PERSONNEL DIARY 1-69 U.S. COAST GUARD HEADQUARTERS.

THE DIARY SHOWS THAT AWARDS OF PROFICIENCY PAY (SUPERIOR PERFORMANCE, CATEGORY H) AND (COMMANDANT'S SPECIAL AWARD, CATEGORY J) WERE MADE TO CERTAIN MEMBERS IN ACCORDANCE WITH COMMANDANT INSTRUCTION 1430.1C OF JUNE 6, 1968, ISSUED PURSUANT TO 37 U.S.C. 307. THE CATEGORY H AWARDS PRESUMABLY WERE MADE IN ACCORDANCE WITH THE INSTRUCTION TO MEMBERS WHO PASSED SERVICEWIDE EXAMINATION FOR ADVANCEMENT TO OR IN A PETTY OFFICER RATING AND ARE TO BE TERMINATED ON THE DAY PRECEDING ADVANCEMENT IN RATING OR ON THE DATE THE ADVANCEMENT ELIGIBILITY LIST EXPIRES, WHICHEVER OCCURS FIRST. CATEGORY J AWARDS WERE MADE TO MEMBERS ON A BILLET BASIS AT COAST GUARD HEADQUARTERS UNDER AN AUTHORIZATION BY THE COMMANDANT.

IT APPEARS FROM YOUR LETTER THAT YOU QUESTION THE PAYMENT OF PROFICIENCY PAY UNDER THESE AWARDS FOR THE REASON THAT THEY WERE MADE TO MEMBERS WITHOUT A POSITIVE SHOWING THAT THEY ARE SPECIALLY PROFICIENT IN A MILITARY SKILL FOR WHICH THE PAY IS BEING AWARDED.

SECTION 307 OF TITLE 37, U.S.C. PROVIDES THAT AN ENLISTED MEMBER OF THE UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY AND IS DESIGNATED AS BEING SPECIALLY PROFICIENT IN A MILITARY SKILL OF THE UNIFORMED SERVICE CONCERNED MAY BE PAID PROFICIENCY PAY. THE PROFICIENCY PAY ORIGINALLY WAS AUTHORIZED BY SECTION 209 OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 1 (8) OF THE ACT OF MAY 20, 1958, 72 STAT. 125.

SECTION 307 FURTHER PROVIDES THAT THE SECRETARY CONCERNED SHALL DETERMINE WHETHER ENLISTED MEMBERS OF A UNIFORMED SERVICE UNDER HIS JURISDICTION ARE TO BE PAID PROFICIENCY PAY. HE SHALL ALSO DESIGNATE, FROM TIME TO TIME, THOSE SKILLS WITHIN EACH UNIFORMED SERVICE UNDER HIS JURISDICTION FOR WHICH PROFICIENCY PAY IS AUTHORIZED, AND SHALL PRESCRIBE THE CRITERIA UNDER WHICH MEMBERS OF THE UNIFORMED SERVICE ARE ELIGIBLE FOR A PROFICIENCY RATING IN EACH SKILL.

SECTION 307 IS ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF DEFENSE FOR THE UNIFORMED SERVICES UNDER HIS JURISDICTION, AND BY THE SECRETARY OF TRANSPORTATION FOR THE COAST GUARD WHEN THE COAST GUARD IS NOT OPERATING AS A SERVICE IN THE NAVY. SECTION 1001 (B) OF TITLE 37 PROVIDES IN PART THAT REGULATIONS OF THE SECRETARY CONCERNED RELATING TO PAY MATTERS FOR MEMBERS OF THE COAST GUARD SHALL, AS FAR AS PRACTICABLE, CONFORM TO REGULATIONS APPROVED UNDER SUBSECTION (A) FOR THE MILITARY DEPARTMENTS.

SECTION 307 CONFERS UPON THE SECRETARIES CONCERNED A BROAD AND FLEXIBLE AUTHORITY TO PROVIDE FOR PAYMENT OF PROFICIENCY PAY TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES. THE SECRETARY OF DEFENSE AND SECRETARY OF TRANSPORTATION HAVE AUTHORIZED TWO GENERAL CATEGORIES OF PROFICIENCY AY: SPECIALTY PAY AND SUPERIOR PERFORMANCE. THE FIRST, SPECIALTY PAY, IS AUTHORIZED ON THE BASIS OF QUALIFICATION IN AN OCCUPATION OR SKILL CRITICALLY IMPORTANT TO THE INDIVIDUAL'S SERVICE. THE SECOND, SUPERIOR PERFORMANCE, IS AUTHORIZED ON THE BASIS OF DEMONSTRATED OUTSTANDING EFFECTIVENESS OR SUPERIOR PERFORMANCE IN THE MEMBER'S ASSIGNED DUTIES.

WITH RESPECT TO SUPERIOR PERFORMANCE WHICH IS INVOLVED HERE, PARAGRAPH 4A -2, 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 AS FOLLOWS:

2. PROFICIENCY PAY (SUPERIOR PERFORMANCE/--- TO PROVIDE AN INCENTIVE FOR PERSONNEL, NOT OTHERWISE RECEIVING PROFICIENCY PAY, TO ACHIEVE SUPERIOR PERFORMANCE ON THE JOB. THIS INCENTIVE IS NOT INTENDED TO ACT AS A SUBSTITUTE FOR THE NORMAL INCENTIVE OF PROMOTION OPPORTUNITY, BUT PROVIDES RECOGNITION TO THOSE WHO HAVE DEMONSTRATED SUPERIOR PERFORMANCE IN THE SPECIALTY AND GRADE IN WHICH THEY ARE SERVING.

PARAGRAPH 4D-2 OF THE SAME REGULATION PROVIDES AS FOLLOWS:

2. ELIGIBILITY--- TO BE ELIGIBLE FOR PROFICIENCY PAY (SUPERIOR PERFORMANCE), AN ENLISTED MEMBER:

A. MUST BE ON ACTIVE DUTY, OTHER THAN ACTIVE DUTY FOR TRAINING AS A RESERVE, AND ENTITLED TO BASIC PAY.

B. MUST HAVE COMPLETED A MINIMUM OF 24 MONTHS ACTIVE SERVICE WHICH, IF IT INCLUDES ANY PERIOD OF ACTIVE DUTY FOR TRAINING, SHALL BE CONSECUTIVE SERVICE.

C. MUST HAVE DEMONSTRATED SUPERIOR PERFORMANCE ON THE JOB, IN THE SKILL AND LEVEL IN WHICH SERVING FOR A MINIMUM PERIOD OF SIX MONTHS.

D. MUST NOT BE IN RECEIPT OF PROFICIENCY PAY (SPECIALTY).

E. MUST MEET SUCH OTHER CONDITIONS OF ELIGIBILITY AS THE SECRETARY OF THE MILITARY DEPARTMENTS CONCERNED MAY PRESCRIBE.

PARAGRAPH 10803 (B), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENT MANUAL, IS AS FOLLOWS:

B. PROFICIENCY PAY (SUPERIOR PERFORMANCE). THIS TYPE PROVIDES AN INCENTIVE FOR MEMBERS NOT OTHERWISE RECEIVING PROFICIENCY PAY, TO ACHIEVE SUPERIOR PERFORMANCE ON THE JOB. IT IS NOT A SUBSTITUTE FOR THE NORMAL INCENTIVE OF PROMOTION OPPORTUNITY. ELIGIBLE MEMBERS ARE THOSE WHO DEMONSTRATE SUPERIOR PERFORMANCE IN THE SPECIALTY AND GRADE IN WHICH THEY ARE SERVING.

THE PURPOSE OF SUPERIOR PERFORMANCE PAY IS TO PROVIDE RECOGNITION TO THOSE PERSONNEL, NOT OTHERWISE RECEIVING PROFICIENCY PAY, WHO HAVE DEMONSTRATED SUPERIOR PERFORMANCE IN THEIR ASSIGNED DUTIES AND TO PROVIDE AN INCENTIVE FOR ACHIEVING OR CONTINUING SUCH SUPERIOR PERFORMANCE. IT IS NOT A SUBSTITUTE FOR, AND IS NOT TO BE CONFUSED WITH, THE NORMAL PROMOTION WHICH IS BASED ON QUALIFICATIONS TO SERVE IN A HIGHER GRADE. THE OBJECTIVE IS TO REWARD THOSE INDIVIDUALS WHO PERFORM OUTSTANDINGLY IN THEIR PARTICULAR SKILLS AND TO PROVIDE ADDITIONAL REMUNERATION FOR THOSE WHO MAY NOT POSSESS THE CAPABILITIES OF LEADERSHIP IN A HIGHER MILITARY RANK BUT WHO ARE ENTITLED TO ADDITIONAL PAY FOR THEIR OUTSTANDING PROFICIENCY AND THEIR SKILL IN THE GRADE IN WHICH SERVING. SEE PAGE 5, H.R. NO. 1538, OF COMMITTEE ON ARMED SERVICES DATED MARCH 20, 1958, TO ACCOMPANY H.R. 11470, WHICH SUBSEQUENTLY BECAME PUBLIC LAW 85-422, DATED MAY 20, 1958.

THE ELIGIBILITY CRITERIA FOR SUPERIOR PERFORMANCE, ADVANCEMENT ELIGIBILITY QUALIFICATION, CATEGORY H, SET FORTH IN ENCLOSURE (8) TO COMMANDANT INSTRUCTION 1430.1C IS:

(1) SUCCESSFULLY COMPLETE AND OBTAIN A PASSING SCORE IN THE SERVICEWIDE EXAMINATION FOR ADVANCEMENT TO OR IN A PETTY OFFICER RATING. AND

(2) PLACE ON AN ADVANCEMENT ELIGIBILITY LIST ESTABLISHED BY THE COMMANDANT IN ACCORDANCE WITH ARTICLE 5-C-31, PERSONNEL MANUAL, AND

(3) REMAIN ELIGIBLE AND RECOMMENDED FOR ADVANCEMENT IN RATE.

THE REGULATION PROVIDES FURTHER THAT THE PROFICIENCY RATING H-1 SHALL TERMINATE ON THE DAY PRECEDING ADVANCEMENT IN RATING.

THE ELIGIBILITY CRITERIA QUOTED ABOVE PROVIDE FOR AWARDS OF PROFICIENCY RATINGS, CATEGORY H, BASED ON QUALIFICATION FOR PROMOTION TO THE NEXT HIGHER PAY GRADE AND NOT ON THE MEMBER'S PROFICIENCY IN HIS PRESENT RATE. HE IS NOT SELECTED FOR THE AWARD BECAUSE HE IS PERFORMING DUTIES IN HIS RATE IN A SUPERIOR MANNER BUT BECAUSE HE HAS QUALIFIED FOR PROMOTION. SUPERIOR PERFORMANCE IN THE MEMBER'S RATE OR DUTY ASSIGNMENT DOES NOT APPEAR TO BE A REQUIREMENT TO QUALIFY FOR PROMOTION. THEREFORE, AND SINCE THE AWARD TERMINATES UPON HIS ADVANCEMENT IN RATING,IT APPEARS THAT THE MEMBER IS NOT AWARDED PROFICIENCY PAY, CATEGORY H, BECAUSE OF HIS OUTSTANDING PROFICIENCY AND SKILL IN THE GRADE IN WHICH HE IS SERVING BUT IT IS AWARDED BECAUSE HE QUALIFIES FOR PROMOTION AND IF NOT PROMOTED IT SERVES FOR A TIME AS A SUBSTITUTE FOR PROMOTION.

IN THESE CIRCUMSTANCES, IT IS OUR VIEW THAT THE CRITERIA ESTABLISHED FOR CATEGORY H ARE NOT CONSISTENT WITH THE LANGUAGE AND SPIRIT OF THE LAW IN THAT THEY DO NOT RELATE THE AWARD OF PROFICIENCY PAY TO THE DUTIES OF THE MEMBER'S CURRENT PAY GRADE BUT ON ELIGIBILITY FOR PROMOTION IN GRADE. THIS DOES NOT CONFORM WITH DEPARTMENT OF DEFENSE REGULATIONS AND WE PERCEIVE OF NO LEGAL BASIS OR JUSTIFICATION FOR SUCH DEPARTURE. ACCORDINGLY, THE PAYMENTS OF PROFICIENCY PAY, CATEGORY H, TO GRAVES AND DEVEREAUX ARE NOT AUTHORIZED.

PAYMENT OF CATEGORY J PROFICIENCY PAY, COMMANDANT'S SPECIAL AWARD, IS AUTHORIZED BY ENCLOSURE (9) TO COMMANDANT INSTRUCTION 1430.1C DATED JUNE 6, 1968. THE ENCLOSURE PROVIDES THAT ELIGIBILITY CRITERIA WILL BE "AS SPECIFIED BY THE COMMANDANT.' OTHER THAN THIS, THE INSTRUCTION CONTAINS NO REQUIREMENTS THE INDIVIDUAL MUST MEET TO BE ELIGIBLE FOR AWARD OF CATEGORY J PROFICIENCY PAY. THE ENCLOSURE PROVIDES FURTHER THAT AWARD AUTHORITY WILL BE IN LETTER INSTRUCTIONS FROM THE COMMANDANT (PE).

LETTERS DATED JUNE 20 AND JUNE 25, 1968, FROM THE COMMANDANT OF THE COAST GUARD TO THE COMMANDING OFFICER, U.S. COAST GUARD HEADQUARTERS, ANNOUNCED THE SELECTION OF MEMBERS LISTED IN THE LETTERS (INCLUDING NAMES ON THE PERSONNEL DIARY WHICH YOU HAVE QUESTIONED) FOR THE COMMANDANT'S SPECIAL AWARD OF PROFICIENCY RATING (J-2) EFFECTIVE JULY 1, 1968, PROVIDED THEY MEET THE ELIGIBILITY REQUIREMENTS CONTAINED IN PARAGRAPH 4 OF THE INSTRUCTION OF JUNE 6, 1968. THE LETTER FURTHER STATED THAT THE RATING IS AUTHORIZED FOR THE REMAINDER OF THE MEMBERS' TOUR AT COAST GUARD HEADQUARTERS UNLESS TERMINATED UNDER THE INSTRUCTION, OR UPON TRANSFER.

ALSO, BY LETTER DATED JUNE 26, 1968, THE COMMANDANT AUTHORIZED THE COMMANDING OFFICER, ENLISTED PERSONNEL, COAST GUARD HEADQUARTERS, TO SELECT FIVE ENLISTED PERSONS ASSIGNED WITHIN COAST GUARD HEADQUARTERS AND NOT OTHERWISE ENTITLED TO A PROFICIENCY PAY RATING, FOR THE COMMANDANT'S SPECIAL AWARD OF PROFICIENCY RATING (J-2). THE LETTER FURTHER AUTHORIZED THE COMMANDING OFFICER TO ASSIGN AND TERMINATE THE AWARDS AT HIS DISCRETION OR UPON TRANSFER FROM THAT UNIT. NO PROFICIENCY CRITERIA WERE SPECIFIED, THE LETTER MERELY PROVIDING THAT THE PERSONNEL SELECTED MEET THE ELIGIBILITY REQUIREMENTS OF PARAGRAPH 4 OF THE INSTRUCTION OF JUNE 6, 1968.

PARAGRAPH 4 OF THE INSTRUCTION DOES NOT PROVIDE STANDARDS FOR MAKING A PROFICIENCY AWARD EXCEPT THAT IT SHALL NOT BE MADE WITHOUT THE APPROVAL AND RECOMMENDATION OF THE COMMANDING OFFICER. INCLUDED IN THE PARAGRAPH ARE INSTRUCTIONS FOR TERMINATING AN AWARD IF, IN THE OPINION OF THE COMMANDING OFFICER, A MEMBER HAS NOT CONTINUED TO MAINTAIN A SATISFACTORY LEVEL OF PERFORMANCE OF THOSE DUTIES OR SKILLS THAT ENTITLED HIM TO THE PROFICIENCY RATING.

THE RECORD DOES NOT DISCLOSE THE FIVE MEMBERS WHO WERE SELECTED UNDER THE LETTER OF JUNE 26, BUT THE ONLY STANDARD SPECIFIED IN MAKING THE AWARDS WAS THAT THE MEMBERS BE ASSIGNED TO COAST GUARD HEADQUARTERS. WE ARE OF THE OPINION THAT AN AWARD OF A PROFICIENCY RATING ON THE BASIS OF THE BILLET OCCUPIED--- NO CRITERIA BEING SPECIFIED FOR CONSIDERATION WITH RESPECT TO THE MEMBER'S PERFORMANCE OF THE DUTIES OF HIS RATING OR ASSIGNMENT--- DOES NOT PROVIDE A SUFFICIENT BASIS FOR PAYMENT OF PROFICIENCY PAY.

THEREFORE, THE PAYMENT OF PROFICIENCY PAY ON THE BASIS OF THE AWARD OF J- 2 PROFICIENCY RATINGS TO THE VARIOUS MEMBERS IN QUESTION AS SHOWN ON DIARY 1-69 IS UNAUTHORIZED.