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p 29/1/ HOSTILE FIRE PAY FOR CREW MEMBERS OF U.S.S.

"PUEBLO" AND CLARIFYING STATUS OF CERTAIN

GOVERNMENT NAVY STAFF CORPS OFFICERS

Storage KSU LIBRARIES 

A11900 47768? 

HEARING

BEFORE THE

COMMITTEE ON ARMED SERVICES

UNITED STATES SENATE

NINETIETH CONGRESS

SECOND SESSION

ON

H.R. 17780

DIRECTING THE SECRETARY OF DEFENSE TO PAY THE

SPECIAL PAY AUTHORIZED UNDER SECTION 310 OF TITLE

37, UNITED STATES CODE, TO CERTAIN MEMBERS OF THE

UNIFORMED SERVICES HELD CAPTIVE IN NORTH KOREA

AND

H.R. 18146

CORRECTING AN INEQUITY AFFECTING OFFICERS OF THE

SUPPLY CORPS AND CIVIL ENGINEER CORPS OF THE NAVY

i•49 -782

SEPTEMBER 5, 1968

Printed for the use of the Committee on Armed Services

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1968
COMMITTEE ON ARMED SERVICES

RICHARD B. RUSSELL, Georgia, Chairman

JOHN STENNIS, Mississippi

STUART SYMINGTON, Missouri

HENRY M. JACKSON, Washington

SAM J. ERVIN, JR., North Carolina

HOWARD W. CANNON, Nevada

ROBERT C. BYRD, West Virginia

STEPHEN M. YOUNG, Ohio

DANIEL K. INOUYE, Hawaii

THOMAS J. McINTYRE, New Ha,napshire

DANIEL B. BREWSTER, Maryland

HARRY F. BYRD, JR., Virginia

MARGARET CHASE SMITH, Maine

STROM THURMOND, South Carolina

JACK MILLER, Iowa

JOHN G. TOWER, Texas

JAMES B. PEARSON, Kansas

PETER H. DOMINICK, Colorado

WILLIAM H. DARDEN, Chief of Staff

CHARLES B. KIRBOW, Chief Clerk

(1)
Statements of:

CONTENTS

H.R. 17780

Brig. Gen. Leo E. Benade, U.S. Army, Deputy Assistant Secretary

of Defense (Military Personnel Policy) 

H.R. 18146

Capt. John A. Scott, Supply Corps, U.S. Navy, Director of Supply

Corps Overseas Personnel, Naval Supply Systems Command and

Bureau of Naval Personnel 

Page

5

HOSTILE FIRE PAY FOR CREW MEMBERS OF U.S.S.

"PUEBLO" AND CLARIFYING STATUS OF CERTAIN

NAVY STAFF CORPS OFFICERS

THURSDAY, SEPTEMBER 5, 1968

U.S. SENATE,

COMMITTEE ON ARMED SERVICES,

Washington, D.C.

The committee met, pursuant to notice, at 10:35 a.m., in room 212,

Old Senate Office Building, Senator Richard B. Russell (chairman)

presiding.

Present: Senators Russell, Stennis, Symington, Jackson, Young of

Ohio, McIntyre, Byrd, Jr., of Virginia, Thurmond, and Pearson.

Also present: William H. Darden, chief of staff; T. E. Braswell, Jr.,

professlonal staff member; Charles B. Kirbow, chief clerk; and Herbert S. Atkinson, assistant chief clerk.

H.R. 17780

Chairman RUSSELL. The first bill for consideration in this open session of this committee this morning is H.R. 17780, which would authorize hostile-fire pay for the crewmembers of the Pueblo.

(H.R. 17780 follows:)

[H.R. 17780, 90th Cong., second sess.]

AN ACT To direct the Secretary of Defense to pay the special pay authorized under section

310 of title 37, United States Code, to certain members of the uniformed services held

captive in North Korea

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That, in the administration of section 310

(relating to special pay for duty subject to hostile fire) of title 37, United States

Code, the Secretary of Defense shall pay the special pay authorized by such section to each member of a uniformed service who was aboard the United States

Ship Pueblo at the time of her capture by military forces of North Korea. Such

pay shall be paid for the period beginning January 1, 1968, and ending with the

month after the month in which such member is repatriated.

Passed the House of Representatives July 23, 1968.

Attest: W. PAT JENNINGS,

Clerk.

Chairman RUSSELL. The Chair wishes to note that our committee

colleague, Senator Dominick, has introduced a bill, S. 3750, on the

same subject. For practical reasons we are considering the bill that

has already passed the House, but Senator Dominick's sponsorship of

the companion bill should be noted.

For a person who is a prisoner to continue to receive hostile-fire pay

during the period he is held by the enemy, the person must have been

entitled to hostile-fire pay at the time he was captured.

(1)
2

The members of the crew of the Pueblo were not so entitled, and

hence they cannot receive hostile-fire pay during their imprisonment.

The Department of Defense's witness on this bill is Brig. Gen. L. E.

Benade, Deputy Assistant Secretary of Defense for Military Personnel Policy. You may proceed, General.

STATEMENT OF BRIG. GEN. LEO E. BENADE, U.S.A., DEPUTY

ASSISTANT SECRETARY OF DEFENSE, (MANPOWER AND RESERVE AFFAIRS; MILITARY PERSONNEL POLICY)

General BENADE. I am Brig. Gen. Leo E. Benade, Deputy Assistant

Secretary of Defense (Military Personnel Policy).

As you may know

'

section 310 of title 37 United States Code authorizes a special pay at the rate of $65 per month for any month in which

a member of the Armed Forces was entitled to basic pay and in which,

he meets one or more of the following conditions.

"(1) was subject to hostile fire or explosion of hostile mines;

"(2) was on duty in an area in which he was in imminent danger of

being exposed to hostile fire or explosion of hostile mines and in which,

during the period he was on duty in that area, other members of the

uniformed services were subject to hostile fire or explosion of hostile

mines; or

"(3) was killed, injured or wounded by hostile fire or, any other

hostile action."

The Secretary of Defense is authorized to prescribe the regulations

under which this special pay will be made.

The Secretary of Defense in 1965 designated all of Vietnam and the

contiguous waters as a hostile fire area, extending the entitlement to

all personnel stationed in-country.

More recently, on April 1, 1968, a small enclave along the western

end of the DMZ in Korea was also designated as a hostile fire area for

purposes of this entitlement.

When a member who is entitled to hostile fire pay becomes missing

or captured, the provisions of the Missing Persons Act provide for him

to continue to receive such pay until he returns to military control or

a legal finding of death is made and his estate is settled. Unfortunately,

members of the Armed Forces who may be missing or captured under

circumstances such as the U.S.S. Pueblo may not be awarded this special pay. On March 5, 1965, the Comptroller General of the United

States, in his ruling B-156088, rendered the opinion that the legislative

history clearly established the intent not to authorize the payment of

this special pay for duty subject to hostile fire to members of a uniformed service captured or missing as the result of hostile action if they

had not otherwise qualified for such pay immediately prior to that time.

The purpose of the proposed legislation, H.R. 17780, is to offset the

unfortunate consequences of this ruling which now serves to deny this

$65 per month special pay to those members of the crew of the U.S.S.

Pueblo now in the hands of the North Koreans.

The Department of Defense has long held the view that any member of the uniformed services who is captured by a hostile force, or is

missing under circumstances that indicate hostile action was involved,

should be entitled to hostile fire pay.
3

Consequently, the Department of Defense supports H.R. 17780 but

believes that the principle involved goes beyond the single incident of

the Pueblo, and makes desirable legislation of more general applicability. For that reason the Department of Defense had proposed substitute legislation which would amend section 310 of title 37, United

States Code, by adding a new clause, that is "(4) was in a captured

or missing status under circumstances that indicate action by a hostile

force was involved."

This concludes my statement, thank you very much.

Chairman RUSSELL. Do you know how much per annum of hostile

fire pay is in Vietnam?

General BENADE. Yes, sir, during calendar year 1967, $404 million

was expended on hostile fire pay, and the estimates for fiscal year 1969

are $504,559,000.

Chairman RUSSELL. That doesn't include the Korean payments.

General BENADE. Yes, sir; that includes all payments of hostile fire

now being paid. It does not include any amount for the members of the

U.S.S. Pueblo who right now are not entitled to such payment.

Chairman RUSSELL. I am interested to note that under the definition

in existing law, or what you propose, it would not take care of the

members of the crew of the Liberty that were shot up so badly by the

Israelis in the recent Israeli-Egyptian war. Why is that, because the

Israelis claim they made a mistake and it really wasn't hostile or accidental? For what reason do you leave them out?

General BENADE. No, sir; the crew of the Liberty are not entitled to

payment under existing law, sir, for the same reasons, for example,

that the members of the crew of the U.S.S. Pueblo are not entitled.

Under the language proposed by the Department of Defense originally the language is broad enough that the Secretary of Defense

would have been able to make a finding to cover an incident such as

the Liberty. The bill as passed by the House, H.R. 17780, now before

this committee, is narrower than the original Defense bill and would

limit this particular payment to the crew of the U.S.S. Pueblo.

Chairman RUSSELL. Yes, but look on the bottom of page 3 of your

statement now in which you say what the Department wants. That

wouldn't cover the crew of the Liberty. That is just where they were

captured or missing.

General BENADE. I see your point, Mr. Chairman.

Chairman RUSSELL. Those men were badly wounded and a number

of them killed. They were not missing or captured.

General BENADE. I see your point.

Chairman RUSSELL. So they would not have been covered by any of

this.

General BENADE. That is correct.

Chairman RUSSELL. Does the Department have a position on the

crew of the Liberty?

General BENADE. Yes, as a matter of interest, those crewmembers of

the Liberty who were killed or wounded were awarded hostile fire pay

in a determination made by the Secretary of the Navy.

Chairman RUSSELL. Of course, they wouldn't draw much pay, they

were under fire only 1 day, but that was a pretty destructive day.

General BENADE. Yes, sir.
4

Chairman RUSSELL. Senator Thurmond?

Senator THURMOND. Mr. Chairman, I am in favor of the legislation. I don't believe I have any questions.

Chairman RUSSELL. Senator Stennis?

Senator STENNIS. I don't have any questions, Mr. Chairman. I am

in favor of the bill.

Chairman RUSSELL. Senator Symington?

Senator SYMINGTON. No questions, Mr. Chairman.

Chairman RUSSELL. Senator Pearson?

Senator PEARSON. No questions.

Chairman RUSSELL. Senator Byrd?

Senator BYRD, Jr., of Virginia. No questions.

Chairman RUSSELL. Just one minute, General, before you get away.

How about the crew of the Liberty that were wounded, they are entitled to disability benefits, aren't they?

General BENADE. Yes, sir.

Chairman RUSSELL. They are entitled?

General BENADE. Yes, sir.

Chairman RUSSELL. Thank you very much, General Benade.

General BENADE. Thank you very much, Mr. Chairman.

(Subsequently, in executive session, the committee voted to report

H.R. 17780, without amendment, as covered by S. Rept. No. 1507.)

H.R. 18146

Chairman RUSSELL. The next bill is H.R. 18146, which is a legislative proposal by the Department of Defense that would correct some

defects that have been discovered in the definition of the term total

commissioned service for certain staff corps officers of the Navy.

(H.R. 18146 follows:)

[H.R. 18146, 90th Cong., second sess.]

AN ACT To amend title 10, United States Code, to correct an inequity affecting officers

of the Supply Corps and Civil Engineer Corps of the Navy

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled, That section 6388 of title 10, United

States Code, is amended as follows:

(1) Subsection (a) is redesignated as subsection "(b)" and is amended by—

(A) striking out "originally" and inserting "initially" in place thereof;

and

(B) inserting "except the Supply Corps and the Civil Engineer Corps"

after "any staff corps of the Navy".

(2) Subsection (b) is redesignated as subsection "(c)" and is amended by

inserting "or (b)" after "subsection ( a )".

(3) Subsection (c) is redesignated as subsection "(d)" and is amended by

striking out "(b)" and inserting "(c)" in place thereof.

(4) Subsection (d) is redesignated as subsection "(e)".

(5) Subsection (e) is redesignated as subsection "(f)" and is amended by

striking out "(d)" and inserting "(e)" in place thereof.

(6) A new subsection (a) is inserted reading as follows:

"(a) For the purpose of the preceding sections of this chapter, the total

commissioned service of each officer on the active list of the Navy in the Supply

Corps or the Civil Engineer Corps who was initially appointed as a Regular

or as a Reserve in the grade of ensign in the line or any staff corps or in the

grade of lieutenant (junior grade) in the Civil Engineer Corps and who has

served continuously on active duty since that appointment shall be computed

from June 30, of the fiscal year in which he accepted that appointment."
5

SEC. 2. Notwithstanding any other provision of law, an officer of the Navy

in the Supply Corps or the Civil Engineer Corps who is not selected for promotion to a higher grade after the enactment of this Act may not be retired under

chapter 573 of title 10, United States Code, earlier than he would have been

retired had this Act not been enacted.

Passed the House of Representatives July 23, 1968.

Attest:

W. PAT JENNINGS,

Clerk.

Chairman RUSSELL. The departmental witness on this bill is Capt.

John A. Scott who is Director of the Supply Corps Officer Personnel,

Naval Supply Systems Command. You may proceed.

STATEMENT OF CAPT. JOHN A. SCOTT, SUPPLY CORPS, 'U.S.

NAVY, DIRECTOR OF SUPPLY CORPS PERSONNEL, NAVAL

SUPPLY SYSTEMS COMMAND AND BUREAU OF NAVAL PERSONNEL

Captain SCOTT. Thank you, Mr. Chairman and members of the committee, I am Capt. John A. Scott, Supply Corps, U.S. Navy, Director

of Supply Corps Overseas Personnel on the Staff of the Commander,

Naval Supply Systems Command, and the Chief of Naval Personnel.

I am representing the Department of Defense on H.R. 18146. The

purpose of the proposed bill is to correct some defects that have been

discovered in the definition of the term "total commissioned service"

for certain staff corps officers of the Navy.

Section 6388 of title 10, United States Code, defines total commissioned service for staff corps officers for the purpose of (1) computing

severance pay of lieutenants and lieutenants (junior grade) who are

discharged following two failures of selection for promotion or after

being found unsatisfactory and (2) determining the date on which

officers in higher grades shall be retired mandatorily.

Under 10 U.S.C. 6388, as interpreted by the Comptroller General

and the U.S. Court of Appeals for the District of Columbia Circuit,

a staff corps officer who had prior service in the line of the Navy may

count only his staff corps service in computing his total commissioned

service if his initial appointment in a staff corps was in the grade of

ensign or lieutenant (junior grade) .

A substantial number of officers in the Supply Corps and the Civil

Engineer Corps served for several years as line officers before their

appointment in their present corps as ensigns or lieutenants (junior

grade), in the present corps.

Under present law, for example, if such an officer has served 5 years

in the line and six in the Supply Corps and is discharged for two

failures of selection for promotion to the grade of lieutenant commander, he receives severance pay equal to 12 months' basic pay,

whereas if all his service had been in the line or if all of it had been

in the Supply Corps, he would have received 22 months' basic pay.

On the other hand, for example, if a Supply Corps officer with 5

years of previous line service attains the grade of lieutenant commander and fails of promotion two or more times, he cannot be retired

involuntarily until he has completed 25 years of active duty as an

officer, whereas his contemporaries who served continuously in line or

staff corps are retired mandatorily on completion of 20 years of com-
6

missioned service. The same disparity exists, of course, in the higher

grades. A Supply Corps commander, if his promotions stopped at that

grade, could serve for 35 years instead of 30, and a rear admiral could

serve 40 years instead of 35.

Thus, in the case of many officers of the Supply Corps and the Civil

Engineer Corps who had prior service in the line, the definition of

total commissioned service in 10 U.S.C. 6388 works to the detriment

of passed-over lieutenants and to the advantage of those who reach

higher grades. Both results are inequitable, and the second is especially undesirable from the personnel management standpoint.

The proposed legislation would eliminate these inequities by providing that the total commissioned service of each officer of the Regular

Navy in the Supply Corps or the Civil Engineer Corps who has served

continuously since his original appointment as a Regular or Reserve in

the grade of ensign in the line or any staff corps or in the grade of

lieutenant (junior grade) in the Civil Engineer Corps shall be computed from June 30 of the fiscal year in Which he accepted his initial

appointment. Thus all of his active commissioned service would count

for all purposes.

Since some senior officers would gain years of total commissioned

service as a result of this legislation and would be subject to unexpectedly early retirement, a saving provision is included to preclude

their mandatory retirement in their present grades earlier than they

would have been retired under present law. They were tendered their

appointments and accepted them in good faith and are undoubtedly

relying, at a minimum upon continued active service for the periods

authorized by law for Officers in their current grades. None have assurance of reaching a higher grade, however. Hence, application of the

new definition of total commissioned service to officers who receive

promotions after this legislation becomes effective will not result in

undue hardship.

The enactment of the proposal would result in a minimal increase,

in fact we estimate, Mr. Chairman, $16,000 a year, in budgetary

requirements of the Department of Defense.

This concludes my statement, Mr. Chairman, I appreciate this great

privilege of appearing before this most distinguished committee.

Thank you.

Chairman RUSSELL. Captain Scott, how many officers do you estimate

would be affected by this legislation?

Captain SCOTT. In the case of severance pay, Mr. Chairman, an

average of two a year, sir.

Chairman RUSSELL. Two a year?

Captain SCOTT. Yes, sir.

Chairman RUSSELL. I thought it would be very few from the way it

was set forth.

Senator Stennis?

Senator STENNIS. I have no questions.

Chairman RUSSELL. Senator Symington?

Senator SYMINGTON. No questions.

Chairman RUSSELL. Senator Jackson?

Senator JACKSON. No questions.
7

Chairman RUSSELL. Senator Young?

Senator YOUNG. I have no questions.

Chairman RUSSELL. Senator Byrd?

Senator BYRD. I have no questions.

Chairman RUSSELL. Senator Pearson?

Senator PEARSON. I have no questions.

Chairman RUSSELL. The committee will now go into executive

session.

(Whereupon, at 10 :50 the hearing proceeded to executive session.)

(Subsequently, in executive session, the committee voted to report

H.R. 18146, without amendment, as covered by S. Rept. No. 1503.)

0