B-125037, MAY 4, 1967, 46 COMP. GEN. 776

B-125037, MAY 4, 1967, 46 COMP. GEN. 776

PAY - AVIATION DUTY - FLIGHT DEFICIENCIES - SATISFYING FLIGHT REQUIREMENTS UNDER SECTION 104 (A) (1) OF EXECUTIVE ORDER NO. 11157, AS AMENDED BY EXECUTIVE ORDER NO. 11292, THE HOURS OF AERIAL FLIGHT PARTICIPATION BY A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING THAT ARE INSUFFICIENT TO MEET THE MINIMUM FLIGHT REQUIREMENTS OF 4 HOURS FOR THE MONTH IN WHICH PERFORMED MAY BE USED TO QUALIFY A MEMBER FOR INCENTIVE PAY IN A SUCCEEDING MONTH AND, THEREFORE, A MEMBER IN CONTINUOUS FLYING STATUS, WITH NO EXCESS FLYING HOURS TO HIS CREDIT FOR THE 5 MONTHS PRECEDING THE MONTH OF JANUARY DURING WHICH MONTH HE MET THE 4-HOUR MINIMUM FLIGHT REQUIREMENTS, WHO FLEW 2 HOURS IN FEBRUARY, NONE IN MARCH OR APRIL, AND 2 HOURS IN MAY QUALIFIES FOR FLYING PAY FOR THE MONTH OF MAY ON THE BASIS OF FLYING 2 HOURS IN FEBRUARY AND 2 HOURS IN MAY. PAY - AVIATION DUTY - EXCESS FLYING HOURS - NONHAZARDOUS DUTY INCAPACITATION A MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS 12 EXCESS HOURS OF AERIAL FLIGHT DUTY IN JANUARY BEFORE BECOMING INCAPACITATED NOT AS A RESULT OF HAZARDOUS DUTY, AND WHO IS NOT SUSPENDED FROM FLYING STATUS UNTIL MAY 1, IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL, THE MEMBER HAVING REMAINED IN A FLYING STATUS DURING THE PERIOD OF INCAPACITATION BEFORE SUSPENSION, AND HIS RIGHT UNDER SECTION 104 (A) (1) OF EXECUTIVE ORDER NO. 11292, AS AMENDED, TO APPLY THE 12 EXCESS HOURS OF AERIAL FLIGHT PERFORMED IN JANUARY TO SATISFY THE FLIGHT REQUIREMENTS FOR THE NEXT 5 MONTHS AFTER INCAPACITATION NOT HAVING BEEN LIMITED IN ANY WAY. PAY - AVIATION DUTY - EXCESS FLYING HOURS - HAZARDOUS DUTY INCAPACITATION A MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS 12 EXCESS HOURS OF AERIAL FLIGHT IN JANUARY BEFORE HE IS INCAPACITATED AS A RESULT OF AN AVIATION ACCIDENT, AND WHO IS SUSPENDED FROM FLYING STATUS ON AUGUST 1, IS ENTITLED TO SATISFY MINIMUM FLIGHT REQUIREMENTS FOR A PERIOD OF 5 MONTHS FOLLOWING INCAPACITATION, AND THE REQUIREMENTS FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL SATISFIED UNDER SECTION 110 OF EXECUTIVE ORDER NO. 11157, AS AMENDED BY EXECUTIVE ORDER NO. 11292, BY REASON OF THE ACCIDENT, THE MONTHS OF MAY AND JUNE MAY BE SATISFIED ON THE BASIS OF THE EXCESS FLIGHT HOURS PERFORMED IN JANUARY, PURSUANT TO SECTION 104 (A) (1), AND THE MEMBER PAID INCENTIVE PAY FOR 5 MONTHS OF THE PERIOD OF INCAPACITATION PRIOR TO SUSPENSION FROM FLYING DUTY. PAY - AVIATION DUTY - EXCESS FLYING HOURS - NONHAZARDOUS DUTY INCAPACITATION A MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO INCAPACITATION ON JANUARY 25, NOT AS A RESULT OF PERFORMING HAZARDOUS DUTY, FLEW 8 AERIAL HOURS IN JANUARY, AND WHO FOLLOWING REQUALIFICATION ON APRIL 25, FLEW 8 HOURS IN APRIL, MAY COMBINE THE EXCESS FLYING HOURS PERFORMED IN JANUARY AND APRIL TO SATISFY THE 4-HOUR MONTHLY FLIGHT REQUIREMENT PRESCRIBED BY EXECUTIVE ORDER NO. 11292, AS AMENDED, AND THE MEMBER, THEREFORE, IS ENTITLED TO PAYMENT OF INCENTIVE PAY FOR THE MONTHS OF FEBRUARY AND MARCH. THE MEMBER NOT HAVING BEEN SUSPENDED FROM FLYING DUTY, THE 4 EXCESS FLIGHT HOURS PERFORMED IN JANUARY SATISFIED FLIGHT REQUIREMENTS FOR FEBRUARY, AND THE FLIGHT DEFICIENCY IN MARCH WAS MET BY THE EXCESS 4 HOURS OF AERIAL FLIGHT PERFORMED IN APRIL. PAY - AVIATION DUTY - EXCESS FLYING HOURS - SUSPENSION TIME EFFECT A MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO SUSPENSION ON FEBRUARY 1, PARTICIPATED IN 12 HOURS OF AERIAL FLIGHT IN JANUARY IS ENTITLED TO FLYING PAY FOR FEBRUARY AND MARCH ON THE BASIS OF THE 8 EXCESS HOURS FLOWN IN JANUARY, WHETHER HIS SUSPENSION IS REMOVED BEFORE OR AFTER EXPIRATION OF THE 3-MONTH GRACE PERIOD PRESCRIBED BY SECTION 110 OF EXECUTIVE ORDER NO. 11157, AMENDED BY EXECUTIVE ORDER NO. 11292, SECTION 104, IN ADDITION TO THE 3-MONTH GRACE PERIOD PRESCRIBED BY SECTION 110, PROVIDING FOR MEETING MINIMUM FLIGHT REQUIREMENTS BY APPLYING THE EXCESS HOURS FLOWN IN A PRECEDING 5-MONTH PERIOD, AND SECTION 105 NOT REQUIRING THAT MINIMUM FLIGHT REQUIREMENTS BE MET FOR A SUSPENSION PERIOD AFTER REMOVAL OF THE SUSPENSION, BUT ONLY REQUIRING COMPLIANCE WITH THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED BY SECTION 104. PAY - AVIATION DUTY - EXCESS FLYING HOURS - SUSPENSION TIME EFFECT A MEMBER OF THE UNIFORMED SERVICES WITH 16 EXCESS FLYING HOURS FOR THE MONTH OF JANUARY WHOSE FEBRUARY 1 SUSPENSION IS REMOVED JUNE 1, IS ENTITLED TO FLYING PAY FOR FEBRUARY, MARCH, APRIL AND MAY ON THE BASIS OF THE EXCESS HOURS FLOWN IN JANUARY, NOTWITHSTANDING HIS SUSPENSION WAS REMOVED AFTER THE EXPIRATION OF THE 3-MONTH GRACE PERIOD PRESCRIBED BY SECTION 110 OF EXECUTIVE ORDER NO. 11157, AMENDED BY EXECUTIVE ORDER NO. 11292, SECTION 104 PROVIDING THAT MINIMUM FLIGHT REQUIREMENTS MAY BE SATISFIED BY APPLYING EXCESS HOURS FLOWN IN THE PRECEDING 5 MONTHS. PAY - AVIATION DUTY - EXCESS FLYING HOURS - SUSPENSION TIME EFFECT A MEMBER OF THE UNIFORMED SERVICES WHO PRIOR TO SUSPENSION OF HIS FLYING STATUS ON JANUARY 16, FLEW 24 HOURS DURING JANUARY AND WHO UPON REMOVAL OF HIS SUSPENSION ON SEPTEMBER 15, FLEW 12 HOURS IN SEPTEMBER IS ENTITLED TO FLYING PAY FOR THE ENTIRE PERIOD OF THE SUSPENSION, THE FLIGHT REQUIREMENTS OF SECTION 104 OF EXECUTIVE ORDER, AS AMENDED BY EXECUTIVE ORDER NO. 11292, HAVING BEEN MET BEFORE AND AFTER THE PERIOD OF SUSPENSION, THE 20 EXCESS HOURS FLOWN IN JANUARY SATISFYING THE 4 HOUR MONTHLY MINIMUM REQUIREMENTS FOR FEBRUARY, MARCH, APRIL, MAY, AND JUNE, AND THE 12 HOURS FLOWN IN SEPTEMBER SATISFYING THE REQUIREMENTS FOR THE MONTHS OF JULY, AUGUST, AND SEPTEMBER.

TO THE SECRETARY OF DEFENSE, MAY 4, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 28, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN THE IMPLEMENTATION OF EXECUTIVE ORDER NO. 11292, AUGUST 1, 1966, RELATING TO THE PAYMENT OF INCENTIVE PAY TO MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING FOR PARTICIPATION IN AERIAL FLIGHTS. THE QUESTIONS AND RELATED DISCUSSION ARE CONTAINED IN COMMITTEE ACTION NO. 395 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 104 (A) OF EXECUTIVE ORDER NO. 11157, AS AMENDED BY EXECUTIVE ORDER NO. 11292, PROVIDES THAT, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, OTHER THAN GLIDER FLIGHTS, SHALL BE REQUIRED TO MEET CERTAIN MINIMUM REQUIREMENTS, EXCEPT AS OTHERWISE PROVIDED IN SECTION 110, IN ORDER TO RECEIVE MONTHLY INCENTIVE (FLYING) PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY. THE PRESCRIBED MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY ARE AS FOLLOWS:

(1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT; HOWEVER, HOURS OF AERIAL FLIGHT PERFORMED DURING THE IMMEDIATELY PRECEDING FIVE CALENDAR MONTHS AND NOT ALREADY USED TO QUALIFY FOR INCENTIVE PAY MAY BE APPLIED TO SATISFY THE AERIAL FLIGHT REQUIREMENT FOR THAT MONTH.

(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF CLAUSE (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF CLAUSE (2) ABOVE HAVE NOT BEEN MET: 12 HOURS OF AERIAL FLIGHT.

SECTION 110 OF EXECUTIVE ORDER NO. 11157 PROVIDES AS FOLLOWS:

ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY, OR MULTIPLE HAZARDOUS DUTIES, AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF ANY SUCH HAZARDOUS DUTY,BY AVIATION ACCIDENT OR OTHERWISE SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF ALL HAZARDOUS DUTIES WHICH HE IS REQUIRED BY COMPETENT ORDERS TO PERFORM, FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.

THE DISCUSSION IN THE COMMITTEE ACTION STATES THAT THE MAJORITY OF THE QUESTIONS ARE PRESENTED TO ASCERTAIN WHETHER THE PROVISIONS OF SECTION 104 OF EXECUTIVE ORDER NO. 11292 AND SECTION 110 OF EXECUTIVE ORDER NO. 11157 ARE FOR APPLICATION IN DETERMINING ENTITLEMENT FOR FLYING PAY DURING PERIODS OF SUSPENSIONS. THE FIRST QUESTION, WHICH DOES NOT INVOLVE ANY SUSPENSION, IS AS FOLLOWS:

1. MAY HOURS OF AERIAL FLIGHT WHICH ARE INSUFFICIENT TO MEET MINIMUM FLIGHT REQUIREMENTS FOR THE MONTH IN WHICH PERFORMED BE USED TO ENABLE A MEMBER TO QUALIFY FOR INCENTIVE PAY IN A SUCCEEDING MONTH?

IN AN EXAMPLE GIVEN, THE MEMBER WAS ON CONTINUOUS FLYING STATUS. EXCESS HOURS WERE FLOWN DURING THE 5 MONTHS IMMEDIATELY PRECEDING THE MONTH OF JANUARY. HE FLEW 4 HOURS IN JANUARY, 2 HOURS IN FEBRUARY, NONE IN MARCH OR APRIL, AND 2 HOURS IN MAY. IN SUCH CIRCUMSTANCES IS THE MEMBER ENTITLED TO FLYING PAY FOR THE MONTH OF MAY ON THE BASIS OF THE 2 HOURS OF FLYING IN FEBRUARY AND 2 HOURS IN MAY?

THE COMMITTEE ACTION POINTS OUT THAT PRIOR TO THE ISSUANCE OF EXECUTIVE ORDER NO. 11292 THE 2 HOURS FLOWN IN FEBRUARY AND THE 2 HOURS FLOWN IN MAY WOULD BE IRREVOCABLY LOST AND PAY ENTITLEMENT WOULD EXIST FOR THE MONTH OF JANUARY ONLY AND THAT, EVEN THOUGH THE HOURS FLOWN IN FEBRUARY ARE NOT IN EXCESS OF THE MINIMUM FLYING REQUIREMENTS FOR THAT MONTH, NOTHING IN EXECUTIVE ORDER NO. 11292 APPEARS TO PRECLUDE USING THE 2 HOURS FLOWN IN FEBRUARY TO HELP QUALIFY FOR THE MONTH OF MAY, SINCE THEY HAVE NOT ALREADY BEEN USED TO QUALIFY FOR FLYING PAY. UNDER THE PLAIN LANGUAGE OF SECTION 104 (A) (1), IN THE EXAMPLE GIVEN THE FLIGHTS PERFORMED IN FEBRUARY MAY BE USED TO QUALIFY FOR FLYING PAY IN THE MONTH OF MAY. THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE COMMITTEE ACTION STATES THAT IT IS NOT CONTEMPLATED THAT THE CURRENT RULES GOVERNING SUSPENSIONS FROM FLYING STATUS AND REMOVAL OR TERMINATION OF SUCH SUSPENSIONS WILL BE CHANGED AS A RESULT OF EXECUTIVE ORDER NO. 11292 AND THAT THE COMMITTEE ACTION IS WRITTEN ON THAT BASIS. QUESTION 2 AND THE EXAMPLES RELATING TO THAT QUESTION ARE AS FOLLOWS:

2. IS A MEMBER ENTITLED TO FLYING PAY WHILE INCAPACITATED, BUT NOT SUSPENDED FROM FLYING STATUS, IF APPLICABLE FLIGHT REQUIREMENTS ARE PROPERLY MET BY FLIGHTS PERFORMED BEFORE THE PERIOD OF INCAPACITY, OR BY A COMBINATION OF HOURS FLOWN BEFORE AND AFTER SUCH PERIOD?

A. MEMBER FLEW 16 HOURS DURING THE PERIOD 1-25 JANUARY. ON 25 JANUARY, HE BECAME INCAPACITATED NOT AS A RESULT OF PERFORMING HAZARDOUS DUTY. REMAINED INCAPACITATED AND WAS SUSPENDED FROM FLYING STATUS ON 1 MAY. HE ENTITLED TO FLYING PAY FOR FEB, MAR, AND APR ON THE BASIS OF 12 EXCESS HOURS FLOWN IN JAN?

B. MEMBERS FLEW 16 HOURS DURING THE PERIOD 1-25 JAN. ON 25 JAN HE BECAME INCAPACITATED AS A RESULT OF AN AVIATION ACCIDENT. HE REMAINED INCAPACITATED AND WAS SUSPENDED FROM FLYING STATUS ON 1 AUG. HE IS ENTITLED TO FLYING PAY FOR FEB, MAR, AND APR, BECAUSE OF THE AVIATION ACCIDENT. IS HE ENTITLED TO FLYING PAY FOR MAY AND JUN, BECAUSE OF EXCESS HOURS FLOWN IN JAN?

C. MEMBER FLEW 8 HOURS DURING THE PERIOD 1-25 JAN. HE BECAME INCAPACITATED ON 25 JAN NOT AS A RESULT OF PERFORMING HAZARDOUS DUTY. BECAME PHYSICALLY REQUALIFIED FOR FLYING ON 25 APR AND FLEW 8 HOURS DURING THE PERIOD 25-30 APR. IS HE ENTITLED TO FLYING PAY FOR FEB ON THE BASIS OF THE 4 EXCESS HOURS FLOWN IN JAN? IS HE ENTITLED FOR MAR ON THE BASIS OF THE 8 HOURS FLOWN IN APR?

THE COMMITTEE ACTION STATES THAT WHEN MEMBERS BECOME PHYSICALLY INCAPCITATED FOR FLYING DUTIES THEY ARE NOT IMMEDIATELY SUSPENDED FROM FLYING STATUS, THAT THE EFFECTIVE DATE OF SUSPENSION UNDER CURRENT SERVICE REGULATIONS IS AS SHOWN IN THE EXAMPLES, WHEN THE CONDITIONS STATED IN THE EXAMPLE APPLY, THAT DURING THE PERIOD OF INCAPACITY PRIOR TO SUSPENSION MEMBERS ARE GROUNDED BY MEANS OF LOCAL ADMINISTRATIVE PROCEDURES, AND THAT UNDER EXECUTIVE ORDER NO. 11157 PRIOR TO AMENDMENT THE MEMBER IN EXAMPLE A WOULD BE ENTITLED TO FLYING PAY THROUGH JANUARY 31, BUT WOULD LOSE FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL BECAUSE HE WAS UNABLE TO MEET FLIGHT REQUIREMENTS BEFORE THE END OF THE 3-MONTH PERIOD.

IT IS UNDERSTOOD THAT WHEN A PERSON ON FLYING STATUS IS PHYSICALLY INCAPACITATED TO FLY NOT AS A RESULT OF AN AVIATION ACCIDENT OR OF CARRYING OUT ORDERS TO PERFORM HAZARDOUS DUTY, HE WILL BE GROUNDED FOR A PERIOD NOT TO EXCEED 3 MONTHS AND NOT PERMITTED TO FLY EVEN THOUGH NO ORDERS SUSPENDING FLYING STATUS ARE ISSUED. THE COMMITTEE ACTION SUGGESTS THAT IF EXECUTIVE ORDER NO. 11292 PERMITS APPLICATION OF EXCESS HOURS FLOWN IN JANUARY, HE WOULD MEET FLIGHT REQUIREMENTS AND BE ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL, WHICH WOULD BE CONSISTENT WITH PAST PRACTICE OF ALLOWING PAYMENT FOR THE REMAINDER OF THE MONTH IN WHICH INCAPACITY BEGAN IF DURING THAT MONTH THE MEMBER HAD FLOWN ENOUGH TO QUALIFY FOR THAT MONTH.

SINCE THE MEMBER IN EXAMPLE A IS IN A FLYING DUTY STATUS DURING THE MONTHS OF FEBRUARY, MARCH, AND APRIL, AND HIS RIGHT UNDER EXECUTIVE ORDER NO. 11292 TO APPLY THE 12 EXCESS HOURS OF AERIAL FLIGHT PERFORMED IN JANUARY TO SATISFY THE FLIGHT REQUIREMENTS FOR THE NEXT 5 MONTHS IS IN NO WAY LIMITED, HE IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL.

THE FACTS IN EXAMPLE B ARE THE SAME AS THOSE IN EXAMPLE A EXCEPT THAT INCAPACITY RESULTED FROM THE PERFORMANCE OF HAZARDOUS DUTY. UNDER THE PROVISIONS OF SECTION 110 OF EXECUTIVE ORDER NO. 11157 THE MEMBER IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL. SINCE THE 12 EXCESS HOURS FLOWN IN JANUARY WERE NOT REQUIRED TO BE USED TO SATISFY THE FLIGHT REQUIREMENTS DURING FEBRUARY, MARCH, AND APRIL, SUCH EXCESS MAY BE APPLIED TO SATISFY THE FLIGHT REQUIREMENTS FOR THE MONTHS OF MAY AND JUNE.

BEFORE ISSUANCE OF EXECUTIVE ORDER NO. 11292 THE MEMBER IN EXAMPLE C WOULD HAVE BEEN ENTITLED TO FLYING PAY FOR JANUARY AND APRIL, BUT NOT FOR FEBRUARY OR MARCH. UNDER EXECUTIVE ORDER NO. 11292, HOWEVER, THE MEMBER, NOT BEING SUSPENDED FROM FLYING DUTY, IS ENTITLED TO FLYING PAY FOR FEBRUARY BY VIRTUE OF CARRYING FORWARD THE EXCESS 4 HOURS OF FLIGHT PERFORMED IN JANUARY. MARCH IS THE FIRST MONTH IN WHICH A DEFICIENCY OCCURRED, AND THAT DEFICIENCY WAS MADE UP IN APRIL; HENCE THE MEMBER IS ENTITLED TO FLYING PAY FOR THE MONTH OF MARCH.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 IS AS FOLLOWS:

3. IS A MEMBER ENTITLED TO FLYING PAY FOR A PART OF A PERIOD OF SUSPENSION FROM FLYING STATUS, IF THE SUSPENSION IS REMOVED WHILE HE IS STILL ABLE TO MEET FLIGHT REQUIREMENTS FOR THE ENTIRE PERIOD, AND REQUIREMENTS ARE ACTUALLY MET FOR THE PARTIAL PERIOD BY FLIGHTS PERFORMED BEFORE THE SUSPENSION?

MEMBER FLEW 12 HOURS IN JAN. HE IS SUSPENDED ON 1 FEB. THE SUSPENSION IS REMOVED ON 30 APR. IS HE ENTITLED TO FLYING PAY FOR FEB. AND MAR. ON THE BASIS OF THE 8 EXCESS HOURS FLOWN IN JAN?

SECTION 105 OF EXECUTIVE ORDER NO. 11157 PROVIDES:

MEMBERS SHALL NOT BE ENTITLED TO RECEIVE INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION, UNLESS SUCH SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 104 HEREOF HAVE BEEN COMPLIED WITH, EXCEPT AS OTHERWISE PROVIDED IN SECTION 110 HEREOF.

UNDER SUCH PROVISIONS PAYMENT IS NOT AUTHORIZED FOR ANY PERIOD OF SUSPENSION UNTIL THE SUSPENSION IS REMOVED AND THEN ONLY WHEN THE MEMBER MEETS THE REQUIREMENTS OF SECTION 104 OF THAT EXECUTIVE ORDER, WHICH WAS AMENDED BY EXECUTIVE ORDER NO. 11292 TO READ AS QUOTED ABOVE. AS SO AMENDED SECTION 104 NOW INCLUDES, IN ADDITION TO THE 3 MONTH GRACE PERIOD, PROVISIONS FOR APPLYING EXCESS HOURS FLOWN IN THE PRECEDING 5 MONTHS. UPON REMOVAL OF THE SUSPENSION THE MEMBER IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY AND MARCH ON THE BASIS OF THE EXCESS HOURS FLOWN IN JANUARY. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4 READS AS FOLLOWS:

4. WOULD THE ANSWER TO QUESTION 3 BE THE SAME IF THE SUSPENSION IS REMOVED AFTER BOTH THE PARTIAL PERIOD COVERED BY PRIOR FLIGHTS AND THE SUCCEEDING THREE-MONTH GRACE PERIOD FOR MEETING FLIGHTS REQUIREMENTS HAVE EXPIRED? THE FACTS ARE THE SAME AS IN THE EXAMPLE IN QUESTION 3, EXCEPT THAT THE SUSPENSION WAS NOT REMOVED UNTIL JULY 1.

THE COMMITTEE ACTION DISCUSSION POINTS OUT THAT PRIOR TO ISSUANCE OF EXECUTIVE ORDER NO. 11292 ENTITLEMENT FOR ANY PERIOD OF SUSPENSION DEPENDED ON WHETHER THE SUSPENSION WAS REMOVED BEFORE THE END OF THE 3 MONTH GRACE PERIOD AUTHORIZED BY SECTION 104 OF EXECUTIVE ORDER NO. 11157, IN WHICH CASE ENTITLEMENT EXISTED TO THE EXTENT FLIGHT REQUIREMENTS WERE MET, AND THAT THERE WAS NO ENTITLEMENT FOR ANY PART OF THE PERIOD OF SUSPENSION WHEN THE SUSPENSION WAS REMOVED AFTER THE 3-MONTH GRACE PERIOD. IT IS SUGGESTED THAT ADHERENCE TO THESE PRINCIPLES WOULD REQUIRE AFFIRMATIVE ANSWERS TO QUESTIONS 3 AND 5 AND A NEGATIVE ANSWER TO QUESTION 4 AND THAT SINCE THE REGULATIONS NOW INCLUDE PROVISIONS FOR APPLYING EXCESS HOURS FLOWN IN THE PRECEDING 5 MONTHS, IN ADDITION TO HOURS OF FLIGHT DURING THE 3-MONTH GRACE PERIOD, THE PERIOD DURING WHICH MINIMUM FLIGHT REQUIREMENTS COULD BE MET IS EXTENDED TO A MAXIMUM OF 8 MONTHS.

INSOFAR AS THE PROVISIONS OF EXECUTIVE ORDERS NO. 11157 AND NO. 11292 ARE CONCERNED, THE REASON A NEGATIVE ANSWER TO QUESTION 4 IS DEEMED NECESSARY FOR CONSISTENCY IS NOT APPARENT. IN QUESTION 3 THE SUSPENSION WAS REMOVED BEFORE THE EXPIRATION OF THE 3-MONTH GRACE PERIOD AND IN QUESTION 4 IT WAS REMOVED AFTER THAT PERIOD HAD EXPIRED. THE REASON THE FLIGHT REQUIREMENTS HAD TO BE MET UNDER EXECUTIVE ORDER NO. 11157 BEFORE EXPIRATION OF THE 3- MONTH GRACE PERIOD WAS THAT THERE WAS NO WAY TO MEET THEM AFTER EXPIRATION OF THE GRACE PERIOD. IT DOES NOT APPEAR THAT SECTION 105 REQUIRES THAT MINIMUM FLIGHT REQUIREMENTS BE MET FOR THE ENTIRE PERIOD OF SUSPENSION, AFTER SUCH SUSPENSION IS REMOVED, BUT ONLY THAT "THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 104 HEREOF HAVE BEEN COMPLIED WITH.' SINCE IN QUESTION 4 THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED BY SECTION 104 WERE MET FOR FEBRUARY AND MARCH, IT IS OUR OPINION THAT THE MEMBER IS ENTITLED TO FLYING PAY FOR THOSE MONTHS WHEN THE SUSPENSION WAS REMOVED ON JULY 1. QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 5 READS AS FOLLOWS:

5. IS A MEMBER ENTITLED TO FLYING PAY FOR ALL OF A PERIOD OF SUSPENSION FROM FLYING STATUS, AFTER REMOVAL OR TERMINATION OF THE SUSPENSION, IF FLIGHT REQUIREMENTS ARE PROPERLY MET FOR THE ENTIRE PERIOD BY FLIGHTS PERFORMED BEFORE THE PERIOD OF SUSPENSION, OR BY A COMBINATION OF HOURS FLOWN BEFORE AND AFTER SUCH PERIOD? EXAMPLE:

A. MEMBER FLEW 20 HOURS IN JAN. HE IS SUSPENDED FROM FLYING STATUS 1 FEB. SUSPENSION IS REMOVED 1 JUN. IS HE ENTITLED TO FLYING PAY FOR FEB, MAR, APR, AND MAY ON THE BASIS OF THE 16 EXCESS HOURS FLOWN IN JAN?

B. MEMBER FLEW 24 HOURS DURING THE PERIOD 1-15 JAN. HE IS SUSPENDED FROM FLYING STATUS 16 JAN. SUSPENSION IS REMOVED 15 SEP. HE FLEW 12 HOURS DURING THE PERIOD 15-30 SEP. IS HE ENTITLED TO FLYING PAY FORFEB, MAR, APR, MAY AND JUN ON THE BASIS OF THE 20 EXCESS HOURS FLOWN IN JAN, AND TO FLYING PAY FOR JUL, AUG, AND SEP ON THE BASIS OF 12 HOURS OF FLIGHT IN SEP?

FOR THE REASONS STATED IN ANSWERING QUESTION 4 IT IS OUR OPINION THAT THE MEMBER IN EXAMPLE A IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, APRIL, AND MAY ON THE BASIS OF THE EXCESS HOURS FLOWN IN JANUARY, AND THAT THE MEMBER IN EXAMPLE B IS ENTITLED TO FLYING PAY FOR THE MONTHS OF FEBRUARY, MARCH, APRIL, MAY AND JUNE. SINCE JULY THEN BECAME THE FIRST MONTH FOR WHICH FLIGHT REQUIREMENTS WERE NOT MET AND MINIMUM FLIGHT REQUIREMENTS FOR 3 MONTHS WERE MET IN SEPTEMBER AFTER REMOVAL OF THE SUSPENSION, THE MEMBER IN EXAMPLE B IS ENTITLED TO FLYING PAY FOR THE MONTHS OF JULY, AUGUST, AND SEPTEMBER. QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.

INCLUDED IN THE COMMITTEE ACTION ARE PROPOSED RULES, INCLUDING PROVISIONS FOR MEMBERS NOT SUBJECT TO FLIGHT REQUIREMENTS, GOVERNING ENTITLEMENT TO FLYING PAY UNDER THE CONDITIONS DESCRIBED IN THE FOREGOING QUESTIONS AND EXAMPLES. QUESTION 6 IS WHETHER THERE IS ANY LEGAL OBJECTION TO INCORPORATION OF THESE RULES INTO SERVICE REGULATIONS. THAT QUESTION IS ANSWERED IN THE NEGATIVE EXCEPT WITH RESPECT TO PARAGRAPHS B, C AND E. THE LATTER PARAGRAPH DEALS WITH THE RULE APPLICABLE WHERE SUSPENSION IS REMOVED AFTER THE PERIOD FOR QUALIFYING HAS PASSED. THE PROPOSED RULE STATES THAT WHEN THIS OCCURS, FLYING PAY FOR THE PERIOD OF SUSPENSION IS LOST. THIS PROPOSED RULE APPARENTLY IS PREMISED UPON A NEGATIVE ANSWER TO QUESTION 4. SINCE THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE, WE SUGGEST THAT THE RULE BE REVISED TO REFLECT ENTITLEMENT UNDER THE CIRCUMSTANCES STATED IN THAT QUESTION AND EXAMPLE.

CONCERNING PARAGRAPHS B AND C, IT IS SUGGESTED THAT THEY BE AMENDED TO NEGATIVE A POSSIBLE IMPLICATION THAT IF A MEMBER FAILS TO MEET THE FLIGHT REQUIREMENTS DURING THE 3-MONTH GRACE PERIOD HE WILL NOT BE ENTITLED TO FLIGHT PAY FOR THE EARLIER PART OF THE SUSPENSION PERIOD FOR WHICH HE HAS ALREADY MET SUCH REQUIREMENTS. THE REFERENCE IN PARAGRAPH C TO SECTION 104 (A) OF THE EXECUTIVE ORDER SHOULD BE AMENDED TO SHOW THAT REFERENCE IS MADE TO THAT SECTION, AS AMENDED BY EXECUTIVE ORDER NO. 11292.