Since 1962, there has been an insidious little rule of law that penalizes National Guard members from getting their full special and incentive pays even when they perform and meet the same standard as their active duty counterparts. That rule of law is commonly referred to as the 1/30th rule.
There are over 60 special and incentive pays. Hazardous duty pay. Flying duty. Parachute duty. Aviation career incentive pay. Diving duty pay. Demolition duty pay. These all have minimum qualifications to remain current and deployable. For example, for parachute pay, the requirement is to jump one time every three months. Some have national level certifications that must be maintained no matter how many days a month they drill.
In 1962, when the National Guard was a strategic reserve and probably not called up as much as today, Congress restricted the payment of special and incentive pays to a prorated amount based on the number of days on drill or annual training.
As an example, if a National Guard parachutist met the standard of one parachute jump every three months, they would get 1/30th of a month’s Hazardous Duty Pay for each drill period (MUTA-4 = 4/30th). Even though the active duty standard may have been met, or national level certification standards were maintained, the law did not allow more than the prorated amount of compensation to be paid.
This law stayed in effect without change for 60 years. Here is what the law said:
37 U.S. Code § 1004
A member of a uniformed service who is entitled to pay and allowances under this title for a continuous period of less than one month is entitled to his pay and allowances for each day of that period at the rate of 1⁄30 of the monthly amount of his pay and allowances. The thirty-first day of a calendar month may not be excluded from a computation under this section. (Pub. L. 87–649, § 301(f), Sept. 7, 1962)
In the National Defense Authorization Act for Fiscal 2022, Congress decided to finally make a change to the decades old restriction and do away with the 1/30th rule. Here is what the law said in 2022:
37 U.S. Code § 357
Notwithstanding section 1004 of this title, the Secretary concerned shall pay a member of the reserve component of an armed force incentive pay in the same monthly amount as that paid to a member in the regular component of such armed force performing comparable work requiring comparable skills. (Pub. L. 117–81, § 602(a), Dec. 27, 2021)
In 2024, an amendment to that change roped in special pays along with incentive pays. Here is how it was amended in the National Defense Authorization Act for Fiscal 2024, amending 10 U.S. Code Section 357:
SEC. 612. MODIFICATION OF SPECIAL AND INCENTIVE PAY AUTHORITIES FOR MEMBERS OF RESERVE COMPONENTS. (a) IN GENERAL.—Section 357 of title 37, United States Code, is amended— (1) by striking ‘‘incentive pay’’ and inserting ‘‘special or incentive pay’’; (2) by striking the period at the end and inserting ‘‘if the Secretary concerned is paying the member of the reserve component the special or incentive pay for the purpose of— ’’; and (3) by adding at the end the following: ‘‘(1) maintaining a skill certification or proficiency identical to a skill certification or proficiency required of the member in the regular component; or ‘‘(2) compensating the member of the reserve component for exposure to hazards or risks identical to hazards or risks to which the member in the regular component was exposed.’’. (b) CONFORMING AND CLERICAL AMENDMENTS.— (1) CONFORMING AMENDMENT.—The section heading for section 357 of title 37, United States Code, is amended by striking ‘‘Incentive’’ and inserting ‘‘Special and incentive’’.
(2) CLERICAL AMENDMENT.—The table of sections for chapter 5 of such title is amended by striking the item relating to section 357 and inserting the following new item: ‘‘357. Special and incentive pay authorities for members of the reserve components of the armed forces.’’. (c) MODIFICATION OF IMPLEMENTATION DETERMINATION.—Section 602(d) of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 37 U.S.C. 357 note) is amended— (1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively, and by moving such subparagraphs, as so redesignated, two ems to the right; (2) by striking ‘‘The Secretary may’’ and inserting the following: ‘‘(1) IN GENERAL.—The Secretary shall’’; (3) in subparagraph (A), as redesignated by paragraph (1), by striking ‘‘subsection (b)’’ and inserting ‘‘subsection (c)’’; and (4) by adding at the end the following new paragraph: ‘‘(2) EVALUATION OF TYPES OF SPECIAL AND INCENTIVE PAY.—In making the determination and certification described in paragraph (1)(B), the Secretary shall evaluate each type or category of special and incentive pay separately and may make the determination and certification based on the effect on an Armed Force concerned of a particular type or category of special or incentive pay.’’. (Pub. L. 118-31, §612, Dec. 22, 2023)
Although the law changed in 2022 to grant National Guard members the full amount of pay and not 1/30th each drill period, the Defense Department has yet to implement the change in law for National Guard members. Thousands of National Guard members have missed out on the increase in monthly special and incentive pays to the tune of probably millions of dollars.
Senators are pushing hard to get the Defense Department to enact the provisions of law passed in 2022, hopefully with retroactivity to the date the law went into effect (December 27, 2021). EANGUS is actively involved in the effort to pressure DOD to do the right thing and abide by the law and pay National Guard members their due.
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