B-43871, MARCH 20, 1946, 25 COMP. GEN. 648

B-43871, MARCH 20, 1946, 25 COMP. GEN. 648

PAY - AVIATION DUTY - AVIATION MEDICAL EXAMINERS AND STUDENT NAVAL FLIGHT SURGEONS NAVAL AVIATION MEDICAL EXAMINERS--- NONFLYING OFFICERS--- WHO HAVE BEEN DESIGNATED AS FLIGHT SURGEONS--- FLYING OFFICERS--- BECOME ENTITLED TO THE INCREASED FLYING PAY AUTHORIZED FOR FLYING OFFICERS BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 ON THE DATE THE NOTICE OF DESIGNATION IS RECEIVED, AND NOT ON THE EFFECTIVE DATE STATED THEREIN. 24 COMP. GEN. 501, AMPLIFIED. STUDENT NAVAL FLIGHT SURGEONS DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION ARE NONFLYING OFFICERS WHOSE INCREASED PAY FOR FLYING IS SUBJECT TO THE STATUTORY LIMITATION OF $720 PER ANNUM, RATHER THAN "COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING" WITHIN THE MEANING OF THE PROVISIONS IN RECENT MILITARY APPROPRIATION ACTS INCLUDING SUCH COMMISSIONED OFFICERS WITHIN THE DEFINITION OF FLYING OFFICERS ENTITLED UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 TO 50 PERCENT INCREASE IN PAY FOR FLYING; AND SUCH STUDENT FLIGHT SURGEONS MAY NOT BE INCLUDED BY ADMINISTRATIVE REGULATION WITHIN THE DEFINITION OF FLYING OFFICER. 24 COMP. GEN. 501, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 20, 1946;

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 21, 1945 (FILE JAG:II:WJG:ZL16-4/10/OV), WITH ENCLOSURE FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY, REQUESTING RECONSIDERATION OF DECISION OF JANUARY 9, 1945, B-43871, 24 COMP. GEN. 501, WHEREIN IT WAS HELD (1) THAT AN AVIATION MEDICAL EXAMINER WHO HAS BEEN DESIGNATED A FLIGHT SURGEON DOES NOT BECOME ENTITLED TO THE 50 PERCENT INCREASE OF PAY AUTHORIZED FOR FLYING OFFICERS UNTIL HE RECEIVES NOTICE OF SUCH DESIGNATION AND ENTERS ON DUTY AS A FLIGHT SURGEON; AND (2) THAT STUDENT NAVAL FLIGHT SURGEONS DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION ARE NONFLYING OFFICERS WHOSE INCREASED FLYING PAY IS SUBJECT TO THE STATUTORY LIMITATION OF $720 PER ANNUM PRESCRIBED FOR NONFLYING OFFICERS, RATHER THAN ,COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING," WITHIN THE MEANING OF CURRENT MILITARY APPROPRIATION ACTS. IT IS FURTHER REQUESTED THAT IN THE EVENT THE CONCLUSIONS REACHED IN THE SAID DECISION BE ADHERED TO ON RECONSIDERATION, THE NAVY DEPARTMENT BE ADVISED AS TO WHETHER THE SECRETARY OF THE NAVY BY ADMINISTRATIVE REGULATIONS MAY INCLUDE STUDENT NAVAL FLIGHT SURGEONS WITHIN THE DEFINITION OF FLYING OFFICERS SO AS TO ENTITLE SUCH OFFICERS TO THE 50 PERCENT INCREASE OF PAY AUTHORIZED FOR FLYING OFFICERS. ALSO, IN VIEW OF THE ADMINISTRATIVE UNDERSTANDING THAT EXISTED PRIOR TO THE RECEIPT OF THE SAID DECISION OF JANUARY 9, 1945, AS TO THE EFFECTIVE DATE OF AN AVIATION MEDICAL EXAMINER'S DESIGNATION AS FLIGHT SURGEON, IT IS REQUESTED THAT THE DECISION IN THAT RESPECT NOT BE MADE RETROACTIVELY EFFECTIVE FOR PAY PURPOSES.

THE VIEWS OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY, WHICH FORM THE BASIS FOR THE PRESENT REQUEST FOR RECONSIDERATION, ARE CONTAINED IN AN ENCLOSURE DATED FEBRUARY 13, 1945, AS FOLLOWS:

1. THE BASIC CORRESPONDENCE CONTAINING THE DECISION OF THE COMPTROLLER GENERAL, B-43871, DATED 9 JANUARY 1945 RELATING TO AVIATION PAY OF FLIGHT SURGEONS IS RETURNED WITH THE REQUEST THAT IT BE RE-SUBMITTED TO THE COMPTROLLER FOR RECONSIDERATION. THE BUREAU OF MEDICINE AND SURGERY IS OF THE OPINION THAT THE TRUE FACTS AND CIRCUMSTANCES RELATING TO THE QUESTIONS PRESENTED FOR DECISION BY THE COMPTROLLER ARE CONFUSING AND HAVE NOT BEEN SUFFICIENTLY AND CLEARLY STATED FOR HIS CONSIDERATION.

2. FIRST, WITH REGARD TO THE QUESTION AS TO WHETHER A MEDICAL OFFICER UNDERGOING FLIGHT TRAINING AS A STUDENT FLIGHT SURGEON, IS ENTITLED TO 50 PERCENT FLYING PAY WHILE UNDER INSTRUCTION, THE FOLLOWING SITUATION PERTAINS.

A. THE SYLLABUS OF FLIGHT TRAINING FOR FLIGHT SURGEONS HAS BEEN FORMALLY ESTABLISHED AND FORMALLY PRESCRIBED AND APPROVED BY THE BUREAU OF PERSONNEL IN A SIMILAR MANNER AS ADMINISTRATIVELY PROVIDED FOR NAVAL AVIATORS.

B. MEDICAL OFFICERS UNDERGOING FLIGHT TRAINING AS FLIGHT SURGEONS ARE UNDER THE ADMINISTRATIVE COGNIZANCE OF THE SUPERINTENDENT OF FLIGHT TRAINING AS SIMILARLY PROVIDED FOR STUDENT AVIATORS AND ARE ENTIRELY OUTSIDE OF MEDICAL COGNIZANCE OR CONTROL. THEY LIVE WITH AND ARE QUARTERED IN BARRACKS AND MUSTER WITH ALL OTHER FLIGHT STUDENTS FOR FLIGHT TRAINING.

C. FLIGHT TRAINING FOR FLIGHT SURGEONS IS FORMALLY PRESCRIBED. EXTENDS OVER A PERIOD OF TWO MONTHS AND CONSISTS OF A TOTAL OF APPROXIMATELY 60 HOURS OF FLIGHT INSTRUCTION. THE INITIAL PHASE OF INSTRUCTION (FIRST 10 HOURS) IS IN PRIMARY TRAINING PLANES, LEADING TO THE REGULAR 10 HOUR CHECK FOR SOLO FLYING (FLYING ALONE) AS SIMILARLY PROVIDED IN THE SAME MANNER, FOR STUDENT AVIATORS. FOLLOWING SOLO CHECK, THE FLIGHT SURGEONS TRAINING BECOMES DIFFERENT FROM THAT OF THE STUDENT AVIATOR, IN THAT THE FLIGHT SURGEON IMMEDIATELY UNDERGOES ABRIDGED FLIGHT TRAINING IN FORMATION FLIGHTS, GUNNERY FLIGHTS, ACROBATICS, NIGHT FLYING, NAVIGATION FLIGHTS, ETC. THE WHOLE OBJECT BEING TO PROVIDE THE FLIGHT SURGEON PRACTICAL EXPERIENCE IN ALL THE CARDINAL FLIGHT HAZARDS TO WHICH THE STUDENT AVIATOR IS SUBJECTED. DURING THE INTENSIVE COURSE OF FLIGHT TRAINING THE STUDENT FLIGHT SURGEON COMPLETES AN ABRIDGED COURSE IN GROUND SCHOOL SUBJECTS OF AEROGRAPHY, THEORY OF FLIGHT, AERODYNAMICS, GAS ENGINES, IGNITION, ETC. UPON COMPLETION OF THE PRESCRIBED SYLLABUS OF TRAINING, HE IS FORMALLY AND OFFICIALLY DESIGNATED NAVAL FLIGHT SURGEON, IN THE SAME MANNER THAT THE STUDENT AVIATOR IS DESIGNATED A NAVAL AVIATOR. DURING THE WHOLE PERIOD OF TRAINING, THE STUDENT FLIGHT SURGEON HAS NO MEDICAL DUTIES, BUT IS ENTIRELY EMPLOYED WITH HIS FLIGHT TRAINING.

3. ADMINISTRATIVELY, THE APPROACH TO FLIGHT TRAINING FOR FLIGHT SURGEONS IS AS FOLLOWS:

MEDICAL OFFICERS ARE SELECTED FOR TRAINING IN " AVIATION MEDICINE.' THEY REPORT TO THE COMMANDING OFFICER, NAVAL AIR STATION, PENSACOLA, FOR SUCH TRAINING AT THE SCHOOL OF AVIATION MEDICINE. DURING THE FIRST TWO MONTHS OF TRAINING THE INSTRUCTION IS ENTIRELY ACADEMIC AND RELATES TO SUBJECTS OF AVIATION MEDICINE. DURING THIS PERIOD OF TRAINING NO FLYING IS PERFORMED AND NO MEDICAL OFFICER RECEIVES FLYING PAY. UPON COMPLETION OF THE ACADEMIC PHASE OF TRAINING, THE STUDENTS ARE APPRAISED AS TO APTITUDE AND STANDING. THE STUDENTS WITH THE HIGHEST OR SATISFACTORY STANDING, ARE RECOMMENDED FOR FLIGHT TRAINING AS STUDENT FLIGHT SURGEONS AND ARE FORMALLY ASSIGNED TO FLIGHT TRAINING AS DESCRIBED IN SUBPARAGRAPH (C), PARAGRAPH 2, ABOVE. THE REMAINING STUDENTS ARE FORMALLY DESIGNATED AS "1AVIATION MEDICAL EXAMINERS," AND ARE ASSIGNED TO DUTY WITH AVIATION ACTIVITIES AS SUCH. WHERE THESE AVIATION EXAMINERS ARE ORDERED TO DUTY INVOLVING FLYING WITH AVIATION ACTIVITIES, THEY RECEIVE FLYING PAY AT THE RATE OF $60.00 PER MONTH AS "NON FLYING OFFICERS.' AFTER SERVING AS A NON FLYING OFFICER ( AVIATION EXAMINER) FOR NOT LESS THAN SIX MONTHS, AND PROVIDED THEY HAVE ACQUIRED NOT LESS THAN 60 HOURS OF FLYING TIME IN NAVAL AIRCRAFT, AVIATION EXAMINERS MAY THEN APPLY FOR DESIGNATION AS NAVAL FLIGHT SURGEON. IF THEY HAVE PERFORMED THEIR DUTIES SATISFACTORILY AND ARE SO RECOMMENDED BY THEIR COMMANDING OFFICER AND THE BUREAU OF MEDICINE AND SURGERY, THEY MAY BE DESIGNATED BY THE BUREAU OF NAVAL PERSONAL, AS NAVAL FLIGHT SURGEONS. THERE IS NO QUESTION RAISED CONCERNING THE RATES OF FLYING PAY TO WHICH AVIATION EXAMINERS ARE ENTITLED DURING THIS PERIOD OF DUTY SINCE THEY ARE EMPLOYED AS NON FLYING OFFICERS UNDER THE FORMAL DESIGNATION OF AVIATION EXAMINER. THE DISTINCTION, HOWEVER, IS THAT THESE OFFICERS ( AVIATION EXAMINERS) ARE EMPLOYED AS SUCH, IN CONTRAST TO THOSE OFFICERS WHO WERE SELECTED AND FORMALLY ASSIGNED TO DUTY UNDER FLIGHT TRAINING, AS STUDENT FLIGHT SURGEONS.

4. THE PAY READJUSTMENT ACT OF 1942, SECT. (18), SPECIFICALLY ESTABLISHED FLIGHT SURGEONS AS FLYING OFFICERS. EXECUTIVE ORDER 9195, DATED 7 JULY 1942, REFERS TO THE ABOVE ACT AND DEFINES NAVAL FLIGHT SURGEONS AS FLYING OFFICERS FOR PAY PURPOSES. FLYING OFFICERS ARE ENTITLED TO 50 PERCENT FLYING PAY IN CONTRAST TO NON FLYING OFFICERS, WHO BY ACT OF CONGRESS ARE RESTRICTED TO FLYING PAY AT THE RATE OF $720, PER ANNUM. AGAIN, FLIGHT SURGEONS ARE SPECIFICALLY INCLUDED WITHIN THE DEFINITION OF FLYING OFFICERS APPEARING IN THE MILITARY APPROPRIATION ACT 1943, 56 STAT. 612. SEE ALSO MILITARY APPROPRIATION ACT 1944, 57 STAT. 349, AND MILITARY APPROPRIATION ACT 1945, 58 STAT. 575. THE MILITARY APPROPRIATION ACT 1943, 56 STAT. 612, PROVIDES IN PART AS FOLLOWS:

"THAT, DURING THE CONTINUANCE OF THE PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF, A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING * * *.'

ACCORDINGLY, THE INTERPRETATION OF THE BUREAU OF MEDICINE AND SURGERY HAS BEEN THAT IT WAS THE INTENT OF CONGRESS TO REMOVE RESTRICTIONS IN FLYING PAY FOR FLIGHT SURGEONS, AND FOR THIS PURPOSE THEY HAVE BEEN DEFINED AND INCLUDED AS FLYING OFFICERS FOR PAY PURPOSES. FURTHER, IT WOULD APPEAR INCONSISTENT IN VIEW OF THE OBVIOUS INTENT OF CONGRESS, TO REMOVE DISCRIMINATION IN THEIR CASE, AND THE PROVISIONS OF THE MILITARY APPROPRIATION ACT OF 1943, 56 STAT. 612, AS QUOTED ABOVE, TO DENY STUDENT FLIGHT SURGEONS 50 PERCENT FLYING PAY WHILE UNDER FLIGHT TRAINING LEADING TO A DESIGNATION WHICH HAS BEEN DEFINED AS A FLYING OFFICER. IT ALSO WOULD APPEAR THAT RULINGS OF THE COMPTROLLER RELATING TO ENTITLEMENT OF PAY FOR FLIGHT SURGEONS, PRIOR TO THEIR INCLUSION AS FLYING OFFICERS BY CONGRESS, AS CITED, ARE NOW SUBJECT TO REVISION BY REASON OF NEW LEGISLATION.

5. BASICALLY, STUDENT NAVAL AVIATORS AND STUDENT FLIGHT SURGEONS ARE LAYMEN ON COMMENCEMENT OF FLIGHT TRAINING INSOFAR AS ABILITY TO FLY ARE CONCERNED. BOTH ENGAGE UPON AND COMPLETE FLIGHT TRAINING LEADING TO A DESIGNATION WHICH BY CONGRESS HAVE BEEN DEFINED AS "FLYING OFFICERS.' THE ACT OF CONGRESS AS QUOTED IN PART (PARAGRAPH 4) STATES "A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLYING TRAINING.' THIS WOULD APPEAR TO REMOVE ANY DOUBT AS TO THE ENTITLEMENT OF STUDENT FLIGHT SURGEONS TO 50 PERCENT FLYING PAY. THEY ARE REFERRED TO AS FLIGHT SURGEONS, THEY ARE COMMISSIONED OFFICERS, AND THE ACT MAKES NO REFERENCE OR APPLIES NO RESTRICTION AS TO THE NATURE OF "THE FLYING TRAINING.' VIEW OF THE OBVIOUS INTENT OF CONGRESS TO REMOVE DISCRIMINATION FOR FLIGHT PAY FOR FLIGHT SURGEONS IN THE PERFORMANCE OF THEIR FLYING DUTIES, IT WOULD APPEAR INCONSISTENT THAT CONGRESS INTENDED THAT DISCRIMINATION WOULD APPLY WHILE UNDER FLYING TRAINING FOR SUCH DUTIES.

6. WITH REGARD TO THE SECOND QUESTION, NAMELY,--- " ON WHAT DATE DID LIEUT. HARRY M. ROSENTHAL ( MC) V-/G) USNR, (AN AVIATION MEDICAL EXAMINER) BECOME ENTITLED TO 50 PERCENT FLYING PAY BY REASON OF DESIGNATION FLIGHT SURGEON.' THE FACTS RELATING TO THIS CASE MAY BE BRIEFLY RESTATED AS FOLLOWS:

LT. ROSENTHAL WAS DESIGNATED AN AVIATION MEDICAL EXAMINER ON 7 MARCH 1942 AND ASSIGNED FLIGHT DUTY WITH AN AVIATION UNIT IN THE PACIFIC. WHILE IN THE PERFORMANCE OF THIS DUTY, HE RECEIVED FLYING PAY AS AVIATION EXAMINER (NON-FLYING OFFICER) AT THE RATE OF $60 PER MONTH. ON COMPLETION OF SIX MONTHS DUTY, HE APPLIED FOR AND WAS DESIGNATED A NAVAL FLIGHT SURGEON BY BUPERS, EFFECTIVE AS OF 20 JULY 1943, BUT THIS DESIGNATION DID NOT REACH HIM UNTIL 22 DECEMBER 1943. THE PRESENT DECISION OF THE COMPTROLLER ESTABLISHES THE DATE FOR HIS FLYING PAY AS A FLIGHT SURGEON (50 PERCENT) AS OF DECEMBER 22, 1943, THE DATE HE RECEIVED HIS DESIGNATION. IT HAS BEEN THE DESIRE OF BUMED AND BUPERS THAT THE EFFECTIVE DATE OF DESIGNATION IN SUCH CASES FOR PAY PURPOSES, BE THE DATE SPECIFIED IN THE ISSUANCE OF THE DESIGNATION AND NOT THE DATE SUCH DESIGNATION WAS RECEIVED BY THE FLIGHT SURGEON.

7. THE COMPTROLLER IN A PRIOR DECISION,"2 COMP. GEN. 370: 21 MS COMP. 438, MAY 11, 1923, TO SEC. NAVY: A-11921, MAY 4, 1926, PRESCRIBED THE FOLLOWING REQUIREMENTS FOR AN INDIVIDUAL TO BE ENTITLED TO 50 PERCENT FLYING PAY, NAMELY:

(A) MUST BE RATED A FLYING OFFICER.

(B) MUST RECEIVE NOTICE OF HIS DETAIL TO OR ASSIGNMENT TO PARTICIPATE IN AERIAL FLIGHTS.

(C) MUST ENTER UPON DUTY PURSUANT THERETO.

WHILE THIS RULING HAD IN MIND A DECISION SPECIFIC TO NAVAL AVIATORS AND WAS RENDERED PRIOR TO THE INCLUSION OF FLIGHT SURGEONS AS FLYING OFFICERS, IT IS NOT CONSIDERED PROHIBITIVE IN THE CASE OF LT. ROSENTHAL, FOR THE FOLLOWING REASONS:

LT. ROSENTHAL MEETS REQUIREMENT (A) HAVING BEEN DESIGNATED A FLIGHT SURGEON BY BUPERS ON JULY 20, 1943. ( FLYING OFFICERS.) LT. ROSENTHAL DID RECEIVE NOTICE OF HIS DESIGNATION ON DECEMBER 22, 1943, SAID DESIGNATION ON DECEMBER 22, 1943, SAID DESIGNATION BEING DATED EFFECTIVE AS OF JULY 20.

LT. ROSENTHAL WAS ALREADY ON A FLYING STATUS AS A NONFLYING OFFICER AT THE TIME NOTICE WAS RECEIVED, HOWEVER, NO CHANGE IN FLIGHT ORDERS WERE REQUIRED FOR HIM TO ENTER ON A FLYING STATUS AS A FLIGHT SURGEON, SINCE HIS MEDICAL DUTIES IN A FLYING STATUS REMAINED THE SAME, I.E., WERE NOT ALTERED BY RECEIPT OF HIS DESIGNATION AS A FLIGHT SURGEON. IT APPEARS THAT FAILURE TO RECOGNIZE THE FUNCTIONS OF AN AVIATION MEDICAL EXAMINER (NONFLYING OFFICER) WHILE ON A FLYING STATUS, AS IDENTICAL WITH THOSE OF A FLIGHT SURGEON ON A FLYING STATUS, HAS LED TO THE ASSUMPTION THAT A DIFFERENCE IN FLIGHT DUTY EXISTS. SUCH DOES NOT EXIST. BASICALLY ALL MEDICAL OFFICERS, WHETHER AVIATION EXAMINERS (NONFLYING OFFICERS) OR FLIGHT SURGEONS, HAVE THE SAME OBJECT, THE SAME MISSION, AND PERFORM THE SAME FUNCTIONS IN A FLYING STATUS, NAMELY TO BE AVAILABLE FOR ALL MEDICAL EMERGENCIES REQUIRING THEIR SERVICES IN A FLYING STATUS AND TO MAINTAIN THE CLOSEST LIAISON IN A PRACTICAL WAY WITH FLYING PERSONNEL TO ENABLE THEM TO DETECT STALENESS, FATIGUE, OR OTHER ABNORMALITIES ENCOUNTERED IN FLYING. AGAIN IT IS EMPHASIZED, THERE IS NO DIFFERENCE IN THE BASIC OBJECTIVITY AND FUNCTIONS OF AN AVIATION EXAMINER AND A FLIGHT SURGEON WITH REGARD TO THEIR FLIGHT DUTIES. THE ONLY DIFFERENCE THAT DOES EXIST IS THE MATTER OF EXPERIENCE. THE PROCEDURE FOR ATTAINING THE DESIGNATION OF FLIGHT SURGEON HAS BEEN SET FORTH IN (C) OF PARAGRAPH (2) AND PARAGRAPH (3) ABOVE. ACCORDINGLY, THE BUREAU OF MEDICINE AND SURGERY HAS CERTIFIED THAT THE FUNCTIONAL FLYING OF AN AVIATION EXAMINER AND A FLIGHT SURGEON HAS THE SAME OBJECTIVITY AND IS IN FACT THE SAME FOR PROFESSIONAL PURPOSES. IT DOES NOT APPEAR PRACTICAL NOR ESSENTIAL TO ISSUE NEW AND ADDITIONAL ORDERS TO A MEDICAL OFFICER WHO IS ALREADY ON A FLYING STATUS AS AN AVIATION EXAMINER, TO ENTER UPON NEW FLYING DUTIES AS A FLIGHT SURGEON, WHEN, IN FACT, THERE ARE NO NEW DUTIES PRESCRIBED AND THE PURPOSE AND NATURE OF THEIR FLYING REMAINS THE SAME. TO UNDERSTAND SUCH A MEASURE WOULD ADD ADMINISTRATIVE DIFFICULTIES ALREADY COMPLICATED, DUE TO THE LARGE NUMBER OF PERSONNEL INVOLVED AND THE GREAT DISTANCES AND DIFFICULTIES CONCERNED IN CONTACTING PERSONNEL NOW DISTRIBUTED THROUGH THE FLEET UNITS AND IN THE PACIFIC THEATRE.

8. TO SUMMARIZE THE PRACTICAL POINTS FOR CONSIDERATION:

(A) THE BASIC MEDICAL AND FLIGHT DUTIES OF FLIGHT SURGEONS AND AVIATION EXAMINERS ARE IDENTICAL WITH REGARD TO THE NATURE AND PURPOSE OF THEIR FLYING DUTIES.

(B) THE DESIGNATION OF A MEDICAL OFFICER AS A FLIGHT SURGEON IS BUT A RECOGNITION OF ADDITIONAL EXPERIENCE AND PERFECTION IN THE PERFORMANCE OF HIS TOTAL PROFESSIONAL DUTIES AS AN AVIATION MEDICAL OFFICER. BUT WITHOUT CHANGE IN THE PURPOSE OR NATURE OF HIS PROFESSIONAL OR FLIGHT DUTIES.

(C) THEREFORE, THE GOVERNING FACTOR FOR PAY PURPOSES SHOULD BE THE DATE THE INDIVIDUAL IS RECOGNIZED AS HAVING ACQUIRED THE ADDITIONAL EXPERIENCE OR QUALIFICATIONS OF A FLIGHT SURGEON, AND NOT THE DATE HE RECEIVES SUCH NOTIFICATION, PROVIDED OF COURSE THAT HE IS ALREADY IN A FLYING STATUS AS AN AVIATION EXAMINER.

9. IF THE COMPTROLLER IS PREPARED TO ACCEPT BUMED'S CERTIFICATION AS STATED IN PARAGRAPH (8) ABOVE, THAT NO CHANGE IN FLYING DUTIES ARE IMPOSED ON A MEDICAL OFFICER BY VIRTUE OF BEING DESIGNATED A FLIGHT SURGEON, THEN THE BASIC REQUIREMENTS OF THE COMPTROLLERS DECISION AS REFERRED TO UNDER PARAGRAPH (7) WILL HAVE BEEN MET AND THE GOVERNING FACTORS SHOULD BECOME THE DATE THAT LT. ROSENTHAL WAS CERTIFIED AS A FLIGHT SURGEON, AND NOT THE DATE SUCH CERTIFICATION WAS RECEIVED BY LT. ROSENTHAL ALREADY BEING IN A FLIGHT STATUS AS AN AVIATION EXAMINER.

AS STATED IN DECISION OF JANUARY 9, 1945, IT IS WELL ESTABLISHED THAT AN OFFICER MAY NOT BE REGARDED AS DETAILED TO OR ON DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS AS A FLYING OFFICER SO AS TO ENTITLE HIM TO THE 50 PERCENT INCREASED PAY AUTHORIZED FOR FLYING OFFICERS UNTIL SUCH TIME AS HE IS RATED A FLYING OFFICER, RECEIVES NOTICE OF HIS DETAIL OR ASSIGNMENT TO PARTICIPATE IN AERIAL FLIGHTS AND ENTERS UPON DUTY AS A FLYING OFFICER PURSUANT THERETO. WHILE ADMINISTRATIVELY IT MAY BE CONSIDERED THAT BASICALLY THERE IS NO MATERIAL DIFFERENCE--- OTHER THAN THAT OF EXPERIENCE--- IN THE CHARACTER OF DUTIES OR FUNCTIONS OF AVIATION MEDICAL EXAMINERS AND FLIGHT SURGEONS, THE LAW RECOGNIZES A DISTINCTION BETWEEN FLIGHT SURGEONS (FLYING OFFICERS) AND AVIATION EXAMINERS (NONFLYING OFFICERS) AND PRESCRIBES DIFFERENT FLIGHT REQUIREMENTS AND RATES OF ADDITIONAL PAY FOR EACH CLASS OF OFFICERS. A NONFLYING OFFICER ASSIGNED TO FLYING DUTY PURSUANT TO COMPETENT ORDERS WHO MEETS THE LIMITED FLIGHT REQUIREMENTS PRESCRIBED FOR SUCH OFFICERS--- THREE OR MORE FLIGHTS WITHIN EACH 90-DAY PERIOD, REGARDLESS OF THE DURATION OF SUCH FLIGHTS-- ACQUIRES A VESTED RIGHT TO THE LIMITED ADDITIONAL FLYING PAY AUTHORIZED FOR NONFLYING OFFICERS AND THE FACT THAT PREVIOUSLY HE MAY HAVE BEEN ADMINISTRATIVELY DESIGNATED A FLYING OFFICER WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF SUCH DESIGNATION ORDINARILY WOULD NOT OPERATE TO DIVEST HIM OF SUCH VESTED RIGHT. CF. GOULD V. UNITED STATES, 19 C.1CLS. 593; 18 COMP. GEN. 528. CONSEQUENTLY, THE FACT THAT IN A PARTICULAR CASE A NONFLYING OFFICER ACTUALLY MAY HAVE MET THE MORE STRINGENT FLIGHT REQUIREMENT PRESCRIBED FOR FLYING OFFICERS DURING THE PERIOD INTERVENING BETWEEN THE DATE OF ISSUANCE OF AN ORDER DESIGNATING HIM A FLYING OFFICER AND THE DATE OF ITS RECEIPT BY THE OFFICER IS IMMATERIAL INSOFAR AS CONCERNS HIS VESTED RIGHT TO ADDITIONAL PAY AS A NONFLYING OFFICER. ANY OTHER VIEW OF THE MATTER WOULD NECESSARILY REQUIRE THE RECOGNITION OF AN ALTERNATE STATUS OF FLYING OFFICER OR NONFLYING OFFICER, DEPENDING ON WHICH WOULD BE THE MORE ADVANTAGEOUS TO THE OFFICER CONCERNED. IT SEEMS CLEAR THAT THE LAW AND REGULATIONS DO NOT CONTEMPLATE THE RECOGNITION OF ANY SUCH ALTERNATE OR DUAL STATUS. ACCORDINGLY, I FIND NO LEGAL BASIS FOR MODIFYING THE CONCLUSION REACHED IN THAT RESPECT IN THE DECISION OF JANUARY 9, 1945. HOWEVER, IN VIEW OF THE ADMINISTRATIVE BASIS FOR THE PRACTICE IN THE MATTER TO THE CONTRARY WHICH EXISTED PRIOR TO RECEIPT OF THE DECISION OF JANUARY 9, 1945, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS MADE ON SUCH BASIS PRIOR TO MARCH 1, 1945.

IT APPEARS TO BE THE VIEW OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY THAT SINCE THE PROVISO APPEARING IN THE MILITARY APPROPRIATION ACT, 1943 APPROVED JULY 2, 1942, 56 STAT. 612, AND SUBSEQUENT MILITARY APPROPRIATION ACTS, THAT "DURING THE CONTINUANCE OF THE PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF, A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS * * * WHILE UNDERGOING FLYING TRAINING" WAS DESIGNED TO REMOVE DISCRIMINATION IN THE FLYING PAY OF FLIGHT SURGEONS,"IT WOULD APPEAR INCONSISTENT THAT CONGRESS INTENDED THAT DISCRIMINATION WOULD APPLY WHILE UNDER FLYING TRAINING FOR SUCH DUTIES.' WHILE ONE OF THE PURPOSES OF THE SAID PROVISO WAS TO REMOVE EXISTING LIMITATIONS RESTRICTING THE FLYING PAY OF FLIGHT SURGEONS TO $720 PER ANNUM, BY INCLUDING "FLIGHT SURGEONS" WITHIN THE STATUTORY DEFINITION OF FLYING OFFICERS DURING THE TEMPORARY PERIOD STATED THEREIN, IT DOES NOT FOLLOW THAT THE SAID PROVISO WAS INTENDED ALSO TO INCLUDE STUDENT FLIGHT SURGEONS UNDERGOING FLYING TRAINING WITHIN SUCH DEFINITION. AT THE OUTSET IT MAY BE NOTED THAT INASMUCH AS THE SAID PROVISO IS CONTAINED IN A MILITARY APPROPRIATION ACT WHICH IS NOT EXPRESSLY MADE APPLICABLE TO NAVAL PERSONNEL, AND AS A FLYING OFFICER IN THE NAVY IS NOT "DEFINED UNDER EXISTING LAW," THE PROVISO ITSELF HAS NO DIRECT APPLICATION TO NAVAL PERSONNEL. HOWEVER, ANNUAL NAVAL AS WELL AS MILITARY APPROPRIATION ACTS CONTAIN A RESTRICTION AGAINST PAYMENT OF ADDITIONAL FLYING PAY TO "NON FLYING" OFFICERS IN EXCESS OF SPECIFIED RATES AND, ALTHOUGH A FLYING OFFICER IN THE NAVY IS NOT DEFINED BY STATUTE, IT HAS BEEN RECOGNIZED THAT IN APPLYING SUCH APPROPRIATION RESTRICTION AGAINST "NONFLYING OFFICERS" THE SECRETARY OF THE NAVY IS AUTHORIZED TO DEFINE FLYING OFFICERS IN THE NAVY UNDER REGULATIONS COMPARABLE TO THOSE PRESCRIBED BY THE SECRETARY OF WAR PURSUANT TO STATUTES EXPRESSLY DEFINING FLYING OFFICERS IN THE ARMY. DECISION OF JANUARY 6, 1941, B-13727, AND 24 COMP. GEN. 636. CONSEQUENTLY, UNLESS THE PROVISO IN THE VARIOUS MILITARY APPROPRIATION ACTS INCLUDING WITHIN THE STATUTORY DEFINITION OF FLYING OFFICER "COMMISSIONED OFFICERS * * * WHILE UNDERGOING FLIGHT TRAINING" MAY BE VIEWED AS EVIDENCING A LEGISLATIVE PURPOSE THAT ARMY MEDICAL OFFICERS UNDERGOING FLYING TRAINING FOR DUTY AS FLIGHT SURGEONS BE CONSIDERED FLYING OFFICERS, THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR THE ISSUANCE OF REGULATIONS BY THE SECRETARY OF THE NAVY DESIGNATING STUDENT NAVAL FLIGHT SURGEONS AS FLYING OFFICERS.

IT WILL BE NOTED THAT THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY DOES NOT STATE OR EVEN SUGGEST THAT ARMY MEDICAL OFFICERS UNDERGOING FLYING TRAINING FOR DUTY AS FLIGHT SURGEONS ARE CONSIDERED FLYING OFFICERS AND PAID THE INCREASED PAY OF 50 PERCENT WHILE UNDERGOING SUCH TRAINING. ON THE CONTRARY, IT APPEARS THAT ARMY MEDICAL OFFICERS UNDER FLYING TRAINING FOR DUTY AS FLIGHT SURGEONS AT THE ARMY AIR FORCES SCHOOL OF AVIATION MEDICINE, RANDOLPH FIELD, TEXAS, ARE NOT CONSIDERED FLYING OFFICERS UNTIL THEY HAVE COMPLETED THE PRESCRIBED COURSE IN AVIATION MEDICINE AND ALSO HAVE ACQUIRED A SPECIFIED NUMBER OF HOURS FLYING IN MILITARY AIRCRAFT. SEE ARMY AIR FORCES REGULATION 35-52, DATED APRIL 13, 1944, AS AMENDED. WHILE IT APPEARS TO BE ADMINISTRATIVELY RECOGNIZED THAT NAVAL AVIATION MEDICAL EXAMINERS--- LIKE ARMY AVIATION MEDICAL EXAMINERS-- - MAY NOT BE CONSIDERED FLYING OFFICERS UNTIL SUCH TIME AS THEY HAVE BEEN DESIGNATED FLYING OFFICERS, THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY APPEARS TO BE OF THE VIEW THAT A DISTINCTION EXISTS IN THE CASE OF STUDENT NAVAL FLIGHT SURGEONS BECAUSE THEY ARE REQUIRED TO UNDERGO CERTAIN ADDITIONAL FLYING TRAINING NOT ORDINARILY PRESCRIBED FOR EITHER ARMY OR NAVY AVIATION MEDICAL EXAMINERS. HOWEVER, AS POINTED OUT IN THE DECISION OF JANUARY 9, 1945, THE PURPOSE OF THE SAID PROVISO INCLUDING "COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING" WITHIN THE STATUTORY DEFINITION OF FLYING OFFICER WAS TO PERMIT ARMY OFFICERS UNDERGOING FLYING TRAINING AS STUDENT AVIATORS--- NOT ENTITLED UNDER THEN EXISTING LAW TO THE 50 PERCENT INCREASED PAY AUTHORIZED FOR FLYING OFFICERS (22 COMP. GEN. 730/--- TO RECEIVE SUCH ADDITIONAL PAY AS FLYING OFFICERS AS THEN AUTHORIZED FOR STUDENT AVIATORS IN THE NAVY AND MARINE CORPS. 21 COMP. GEN. 578. THAT SUCH WAS THE LEGISLATIVE PURPOSE OF SAID PROVISO IS APPARENT FROM THE DISCUSSION OF THE PROVISO BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES (PAGE 71), AS FOLLOWS:

MR. SNYDER. GENERAL, LOOKING AT THE FLIGHT-PAY PROJECTS ON PAGE 12 OF THE JUSTIFICATIONS, WHICH I APPRECIATE APPLIES SOLELY TO OFFICERS, I SHOULD LIKE YOU TO STATE IF YOU PAY FLIGHT PAY TO STUDENT AVIATORS.

GENERAL LOUGHRY. YES, SIR.

MR. SNYDER. I ASK THAT BECAUSE THE COMPTROLLER GENERAL RULED ON LAST DECEMBER 16 THAT STUDENT AVIATORS OF THE MARINE CORPS WERE ENTITLED TO FLIGHT PAY, AND THAT RULING ALSO APPLIED TO THE NAVY. IN AN EARLIER DECISION ARMY STUDENT AVIATORS WERE BARRED BY THE LEGAL DEFINITION, APPLY TO THE ARMY ALONE, OF A FLYING OFFICER. WE ENDEAVOR TO KEEP THE SERVICES ON A UNIFORM BASIS AS TO PAY. WE HAVE A HARD TIME DOING SO AT TIMES, AS WE ALL KNOW. HOW DOES THE ARMY FEEL ABOUT THIS MATTER?

GENERAL LOUGHRY. I WOULD LIKE TO MAKE A BRIEF STATEMENT, AND COLONEL BRADLEY IS HERE FROM THE AIR CORPS TO MAKE A FURTHER STATEMENT. IT IS MY UNDERSTANDING THAT SO FAR THIS SITUATION IS NOT CLEARED UP, AND THAT THE DECISION OF THE COMPTROLLER GENERAL WAS SIMPLY IN ACCORDANCE WITH EXISTING LAW. THE LAW, AS IT APPLIES TO THE NAVY FLYING OFFICERS, DOES INCLUDE STUDENT AVIATORS; WHEREAS THE LAW PERTAINING TO THE ARMY PROVIDES THAT THE FLYING OFFICER SHALL CONSIST OF RATED PILOTS, OBSERVERS, AND MEMBERS OF COMBAT CREWS. THE DIFFERENCE IS THE RESULT OF A DIFFERENCE IN THE EXISTING LAW. IS THAT CORRECT, COLONEL BRADLEY?

COLONEL BRADLEY. OFFICER STUDENT AVIATORS RECEIVE ONLY $60 PER MONTH FOR FLIGHT PAY DURING THE PERIOD THEY ARE UNDERGOING TRAINING. THEY DO NOT RECEIVE 50 PERCENT FLIGHT PAY UNTIL THEY BECOME RATED PILOTS OR OBSERVERS.

MR. SNYDER. GENERAL, I SUGGEST, IF ANY DISCRIMINATION EXISTS, THAT YOU PREPARE SOME LANGUAGE DESIGNED TO REMOVE IT, AND SUBMIT IT TO THE CLERK OF THE COMMITTEE BEFORE WE MARK UP THE BILL.

ALSO, THE REPORT OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, H.R. 2266, FURTHER EXPLAINS THE PURPOSE OF THE SAID PROVISO AS FOLLOWS:

THE SECOND PHRASE OF THE PROVISO, APPLYING TO COMMISSIONED OFFICERS AND WARRANT OFFICERS UNDERGOING FLYING TRAINING, IS INTENDED TO EQUALIZE FLYING PAY OF ARMY AND NAVY PERSONNEL UNDERGOING FLYING INSTRUCTION.

IT SEEMS APPARENT FROM THE FOREGOING THAT IT WAS NOT THE LEGISLATIVE PURPOSE, NOR THE UNDERSTANDING OF THE WAR DEPARTMENT OFFICIALS TESTIFYING ON THE PROVISO, THAT THE LANGUAGE EMPLOYED THEREIN SHOULD BE VIEWED AS INCLUDING ARMY OFFICERS UNDERGOING FLYING TRAINING FOR DUTIES AS FLIGHT SURGEONS BUT WAS TO BRING IN ARMY STUDENT AVIATORS TO PUT THEM ON A PARITY WITH NAVY STUDENT AVIATORS IN THAT RESPECT. CONSEQUENTLY, SINCE IT DOES NOT APPEAR THAT THE SAID PROVISO CONTEMPLATED THAT MEDICAL OFFICERS OF THE ARMY UNDERGOING TRAINING AS FLIGHT SURGEONS WERE TO BE INCLUDED WITHIN THE STATUTORY DEFINITION OF FLYING OFFICER THERE IS PERCEIVED NO LEGAL BASIS FOR THE ISSUANCE OF REGULATIONS WHICH WOULD INCLUDE STUDENT NAVAL FLIGHT SURGEONS WITHIN THE DEFINITION OF FLYING OFFICERS SO AS TO ENTITLE THEM TO THE 50 PERCENT INCREASE OF PAY AUTHORIZED FOR FLYING OFFICERS.

THE ARGUMENTS PRESENTED BY THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY HAVE BEEN GIVEN CAREFUL CONSIDERATION BUT, IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE PROVISION IN QUESTION, IT MUST BE CONCLUDED THAT THIS OFFICE WOULD NOT BE WARRANTED IN MODIFYING THE PRIOR DECISION ON THE MATTER. OF COURSE, IF IT BE THE ADMINISTRATIVE VIEW THAT THE FLIGHT TRAINING REQUIREMENTS PRESCRIBED FOR STUDENT NAVAL FLIGHT SURGEONS ARE SUCH AS TO SUBJECT THEM TO THE GREATER FLYING HAZARDS, ETC., ORDINARILY ENCOUNTERED BY STUDENT AVIATORS, RATHER THAN TO THE LIMITED FLIGHT HAZARDS, ETC., WHICH MAY BE ENCOUNTERED BY ARMY MEDICAL OFFICERS UNDERGOING TRAINING LEADING TO THE DESIGNATION OF FLIGHT SURGEON, THE MATTER IS PROPERLY FOR CONSIDERATION BY THE CONGRESS, IT BEING NOTED THAT SUCH BODY MAY PRESENTLY RECONSIDER THE GENERAL MATTER OF THE RATES OF PAY OF MILITARY AND NAVAL PERSONNEL, WITH PARTICULAR REFERENCE TO INCREASES AUTHORIZED FOR FLYING PAY. SEE THE NEXT TO THE LAST PARAGRAPH OF THE FIRST SUPPLEMENTAL SURPLUS APPROPRIATION RESCISSION ACT, 1946, PUBLIC LAW 301, APPROVED FEBRUARY 18, 1946, 60 STAT. 20.