B-125037, MAY 27, 1964

B-125037, MAY 27, 1964

TO SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1964, SUBMITTING FOR OUR VIEWS AND RECOMMENDATIONS A COPY OF PROPOSED AMENDMENTS TO SECTIONS 4 AND 10 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, 15 F.R. 5489, AS AMENDED, PRESCRIBING THE MINIMUM FLIGHT REQUIREMENTS FOR PAYMENT OF INCENTIVE PAY BASED ON THE PERFORMANCE OF HAZARDOUS DUTY (AERIAL FLIGHT) AS AUTHORIZED BY THE PROVISIONS OF 37 U.S.C. 301 (A) (1) AND (4). IT IS POINTED OUT THAT THE AMENDMENTS PROPOSED RESULT FROM A STUDY CONDUCTED BY THE DEPARTMENT OF DEFENSE ON THE SUGGESTION THIS OFFICE MADE TO CONGRESS IN 1963 WITH RESPECT TO THE FEASIBILITY OF ELIMINATING MINIMUM FLIGHT TIME REQUIREMENTS FOR THE PAYMENT OF INCENTIVE (AERIAL FLIGHT) PAY.

IT IS PROPOSED TO AMEND ACTIONS 4 AND 10 OF EXECUTIVE ORDER NO. 10152 TO READ AS FOLLOWS:

"SEC. 4. UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, OTHER THAN GLIDER FLIGHTS, SHALL BE REQUIRED TO MEET THE FOLLOWING MINIMUM FLIGHT REQUIREMENTS, EXCEPT AS OTHERWISE PROVIDED IN SECTION 10 HEREOF, IN ORDER TO BE ENTITLED TO RECEIVE MONTHLY INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, OR TO HAVE THE RECEIPT OF THAT PAY VALIDATED. SUCH MEMBERS MAY BE PAID MONTHLY, SUBJECT TO AN ANNUAL OR MORE FREQUENT ACCOUNTING TO VERIFY COMPLIANCE WITH THEIR MINIMUM REQUIREMENTS.

"/A) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 301 (A) OF TITLE 37, UNITED STATES CODE:

"/1) AT LEAST 48 HOURS OF AERIAL FLIGHT IN THE FISCAL YEAR, OR, FOR A FRACTION OF THE FISCAL YEAR, A PROPORTIONATE PART THEREOF.

"/2) MEMBERS WHO FAIL TO MEET THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED BY SUBDIVISION (1) OF THIS SUBSECTION SHALL BE ENTITLED TO RECEIVE MONTHLY INCENTIVE PAY OR TO HAVE THE RECEIPT OF THAT PAY VALIDATED AT A RATE OF ONE MONTH'S PAY FOR EACH FOUR HOURS OF AERIAL FLIGHT PERFORMED DURING SUCH PERIOD.

"/B) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES OR INACTIVE-DUTY TRAINING WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 301 (F) OF TITLE 37, UNITED STATES CODE:

"/1) AT LEAST 24 HOURS OF AERIAL FLIGHT IN THE FISCAL YEAR, OR, FOR A FRACTION OF THE FISCAL YEAR, A PROPORTIONATE PART THEREOF.

"/2) MEMBERS WHO FAIL TO MEET THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED BY SUBDIVISION (1) OF THIS SUBSECTION SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY OR TO HAVE THE RECEIPT OF THAT PAY VALIDATED FOR THAT PERIOD IN THE SAME RATIO THAT THE HOURS OF AERIAL FLIGHT PERFORMED BEAR TO THE MINIMUM FLIGHT REQUIREMENTS FOR THE PERIOD.

"/C) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO PERFORM BOTH ACTIVE DUTY AND INACTIVE DUTY TRAINING DURING THE FISCAL YEAR AND WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 301 (A) AND (F) OF TITLE 37, UNITED STATES ODE:

"/1) FOR PERIODS OF ACTIVE DUTY, A PROPORTIONATE PART OF THE FLIGHT REQUIREMENTS PRESCRIBED IN SUBDIVISION (1) OF SUBSECTION (A) OF THIS SECTION.

"/2) FOR PERIODS OF INACTIVE-DUTY TRAINING, A PROPORTIONATE PART OF THE FLIGHT REQUIREMENTS PRESCRIBED IN SUBDIVISION (1) OF SUBSECTION (B) OF THIS SECTION. HOWEVER, THE TOTAL FLIGHT REQUIREMENTS AS DETERMINED BY SUBDIVISIONS (1) AND (2) OF THIS SUBSECTION MAY BE MET ANY TIME DURING THE FISCAL YEAR ON INACTIVE-DUTY TRAINING, OR ON ACTIVE-DUTY AND INACTIVE-DUTY TRAINING, IF THE INACTIVE-DUTY FLIGHT REQUIREMENT FOR THAT FISCAL YEAR HAS BEEN MET.

"SEC. 10. 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 ACTION 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. DURING SUCH THREE- MONTH PERIOD, OR PORTION THEREOF, THE INCAPACITATED MEMBER SHALL BE DEEMED TO HAVE PERFORMED HAZARDOUS DUTY AT THE MONTHLY RATE OF FOUR HOURS OF AERIAL FLIGHT FOR THE PURPOSES OF SECTION 4 (A) AND TWO HOURS OF AERIAL FLIGHT FOR THE PURPOSES OF SECTION 4 (B).'

YOUR REQUEST THAT OUR REVIEW OF THIS MATTER COVER IN PARTICULAR THE FOLLOWING POINTS:

"/A) 37 U.S.C. 301 AUTHORIZES THE PAYMENT OF MONTHLY INCENTIVE PAY FOR THE PERFORMANCE OF DUTY AS CREW MEMBER INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT. MAY ENTITLEMENT TO MONTHLY FLIGHT PAY BE BASED UPON A REQUIREMENT TO PERFORM 48 HOURS OF AERIAL FLIGHT IN A FISCAL YEAR, WITHOUT SPECIFICATION THAT THOSE FLIGHTS MUST BE PERFORMED MONTHLY OR AT STATED INTERVALS DURING THE FISCAL YEAR?

"/B) THE PROPOSED AMENDMENT AUTHORIZES MEMBERS TO BE PAID MONTHLY, "SUBJECT TO AN ANNUAL OR MORE FREQUENT ACCOUNTING TO VERIFY COMPLIANCE WITH THEIR MINIMUM REQUIREMENTS.' IS THIS PROVISION LEGALLY OBJECTIONABLE, EITHER FROM THE STANDPOINT OF 31 U.S.C. 529 OR OTHERWISE?

IT IS POINTED OUT THAT THE PROVISIONS OF 37 U.S.C 301 DO NOT SPECIFY MONTHLY PERFORMANCE AS A PREREQUISITE TO RECEIVE INCENTIVE PAY FOR AERIAL FLIGHT DUTY AND THAT IN THE PAST ENTITLEMENT TO AERIAL FLIGHT PAY HAS BEEN DETERMINED ON A MONTHLY BASIS ONLY BECAUSE THE PAY THEREFOR HAS BEEN EXPRESSED AS A MONTHLY AMOUNT. ALSO, THAT NO REASON IS PERCEIVED WHY THE "FREQUENT AND REGULAR" LANGUAGE OF THE STATUTE WOULD NOT BE SATISFIED EQUALLY AS WELL BY THE PERFORMANCE OF 48 HOURS OF AERIAL FLIGHT IN A YEAR AS BY THAT OF 4 HOURS IN A SINGLE MONTH. IT IS STATED THAT UNDER THE PROPOSED AMENDMENT TO THE EXECUTIVE ORDER, MEMBERS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY (AERIAL FLIGHT) WOULD BE PAID INCENTIVE PAY EACH MONTH WITHOUT CERTIFICATION OR VERIFICATION THAT HAZARDOUS DUTY HAS BEEN PERFORMED. VERIFICATION OF ENTITLEMENT TO SUCH INCENTIVE PAY WILL BE ACCOMPLISHED AT THE CLOSE OF EACH FISCAL YEAR AT WHICH TIME PAYMENT WILL BE VALIDATED IF THE TOTAL ANNUAL AERIAL FLIGHT REQUIREMENT OF 48 HOURS HAS BEEN MET IN FULL OR, IF NOT, THAT THE UNEARNED AMOUNT OF INCENTIVE PAY WILL BE RECOUPED FROM THE MEMBER CONCERNED.

UNDER SECTION 4 OF EXECUTIVE ORDER NO. 10152, AS NOW CURRENTLY IN EFFECT, MINIMUM FLIGHT REQUIREMENTS OF 4 HOURS OF AERIAL FLIGHT ARE PRESCRIBED ON A CALENDAR-MONTH BASIS. IF THE MEMBER FAILS TO MEET HIS FLIGHT REQUIREMENTS IN ONE MONTH OR IN A CONSECUTIVE 2-MONTH PERIOD, HE CAN SUBSEQUENTLY QUALIFY FOR INCENTIVE (AERIAL FLIGHT) PAY FOR SUCH 2 OR 3- MONTH PERIOD UNDER SECTION 4 (A) (2) OR (3), RESPECTIVELY, OF THE EXECUTIVE ORDER IF HE MEETS THE CUMULATIVE FLIGHT REQUIREMENT OF 8 HOURS DURING A CONSECUTIVE PERIOD OF 2 MONTHS OR 12 HOURS IN A CONSECUTIVE PERIOD OF 3 MONTHS. UNDER THOSE PROVISIONS PAYMENT OF INCENTIVE PAY MAY BE MADE FOR RETROACTIVE PERIODS ONLY.

SECTION 4 (A) (6) OF THE EXECUTIVE ORDER PROVIDES THAT UNDER THE SPECIAL CIRCUMSTANCES THERE SPECIFIED A MEMBER MAY COMPLY WITH THE PRESCRIBED MINIMUM MONTHLY FLIGHT REQUIREMENT BY PERFORMING AT LEAST 24 HOURS OF AERIAL FLIGHT OVER A PERIOD OF 6 CONSECUTIVE CALENDAR MONTHS. SUCH FLIGHT REQUIREMENT MAY BE MET AT ANY TIME DURING THE 6 MONTH PERIOD AND WHEN MET THE MEMBER CONCERNED IS ENTITLED TO RECEIVE INCENTIVE PAY FOR AERIAL FLIGHT DUTY FOR THE 6 CONSECUTIVE CALENDAR MONTHS INVOLVED. MONTHLY PAYMENT MAY THEN BE MADE FOR ANY REMAINING MONTH OF SUCH 6-MONTH PERIOD AS WELL AS RETROACTIVELY FOR ANY PRIOR MONTH OR MONTHS IN THAT SAME PERIOD. UNDER SECTION 10 OF THE EXECUTIVE ORDER A MEMBER WHO IS INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF AERIAL FLIGHT DUTY PERFORMED PURSUANT TO COMPETENT ORDERS IS DEEMED TO HAVE FULFILLED ALL OF THE FLIGHT REQUIREMENTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED 3 MONTHS FOLLOWING THE DATE OF INCAPACITY.

THE REGULATIONS PRESCRIBED BY THE PRESIDENT IN SECTIONS 4 AND 10 OF EXECUTIVE ORDER NO. 10152 WERE PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 809. THOSE STATUTORY PROVISIONS ARE NOW CODIFIED IN SECTION 301, TITLE 37, U.S.C. (PUB.L. 87-649, SEPTEMBER 7, 1962, 76 STAT. 461-463). SUBSECTION (A) OF SECTION 301 PROVIDES:

"SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY * * * FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS. FOR THE PURPOSES OF THIS SUBSECTION,"HAZARDOUS DUTY" MEANS DUTY -

"/1) AS A CREW MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS;

"/4) INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT, NOT AS A CREW MEMBER UNDER CLAUSE (1) OF THIS SUBSECTION.'

UNLESS OTHERWISE PROVIDED BY LAW INCENTIVE PAY MUST BE "EARNED" BY THE ACTUAL "PERFORMANCE" OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THUS, THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 OF THE EXECUTIVE ORDER MUST FIRST BE FULLY MET BEFORE ANY PROPER BASIS IS PRESENTED FOR THE PAYMENT OF INCENTIVE PAY BASED ON AERIAL FLIGHT DUTY.

THE PROPOSAL TO SHIFT FROM A MONTHLY MINIMUM AERIAL FLIGHT TIME REQUIREMENT OF 4 HOURS TO 48 HOURS OF AERIAL FLIGHT IN A FISCAL YEAR (OR FOR A FRACTION OF A FISCAL YEAR THE PROPORTIONATE PART THEREOF) AND IN THE CASE OF MEMBERS OF THE RESERVE COMPONENTS ON INACTIVE DUTY TRAINING FROM 2 HOURS OF AERIAL FLIGHT PER CALENDAR MONTH TO 24 HOURS OF AERIAL FLIGHT IN A FISCAL YEAR (OR THE PROPORTIONATE PART THEREOF) IS COUPLED WITH THE FURTHER PROPOSED AMENDMENT TO SECTION 4 OF THE EXECUTIVE ORDER THAT:

"SUCH MEMBERS MAY BE PAID MONTHLY, SUBJECT TO AN ANNUAL OR MORE FREQUENT ACCOUNTING TO VERIFY COMPLIANCE WITH THEIR MINIMUM REQUIREMENTS.'

ALSO, THE PROPOSED NEW SECTION 4 (A) (2) WOULD PROVIDE THAT MEMBERS WHO FAIL TO MEET THE MINIMUM FLIGHT REQUIREMENTS OF 48 HOURS OF AERIAL FLIGHT IN THE FISCAL YEAR OR THE PROPORTIONATE PART THEREOF---

"* * * SHALL BE ENTITLED TO RECEIVE MONTHLY INCENTIVE PAY OR TO HAVE THE RECEIPT OF THAT PAY VALIDATED AT A RATE OF ONE MONTH'S PAY FOR EACH FOUR HOURS OF AERIAL FLIGHT PERFORMED DURING SUCH PERIOD.'

A CORRESPONDING VALIDATING PROVISION IS PROPOSED IN NEW SECTION 4 (B) (2) RELATIVE TO MEMBERS OF THE RESERVE COMPONENTS. THOSE PROPOSED CHANGES WOULD PERMIT PAYMENT OF INCENTIVE PAY MONTHLY OR AT OTHER INTERVALS PRIOR TO THE ACTUAL PERFORMANCE OF HAZARDOUS DUTY AND WOULD BE INCONSISTENT WITH THE BASIC PROVISIONS OF LAW. HENCE, THE CONCLUSION IS REQUIRED THAT THE PROPOSED CHANGES TO EXECUTIVE ORDER NO. 10152 WOULD NOT BE PROPER.

FURTHERMORE, THE PROVISIONS OF 31 U.S.C. 529, TO WHICH SPECIFIC REFERENCE IS MADE IN YOUR LETTER, AND WHICH, IN PERTINENT PART, PROVIDE THAT "NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE UNLESS AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW" CONSTITUTE A STATUTORY BAR TO THE PAYMENT OF INCENTIVE PAY TO ANYONE FOR ANY PERIOD IN ADVANCE OF THE ACTUAL PERFORMANCE OF HAZARDOUS DUTY. FOR A SPECIFIC EXCEPTION TO THIS STATUTORY BAR SEE 37 U.S.C. 1006 AUTHORIZING ADVANCE PAYMENTS TO MEMBERS OF THE ARMED FORCES UNDER CERTAIN PRESCRIBED CONDITIONS.

OUR SUGGESTION IN OUR REPORT TO THE CONGRESS WITH RESPECT TO ABOLISHING MINIMUM FLIGHT TIME REQUIREMENTS WAS DIRECTED TOWARDS (1) REDUCING ADMINISTRATIVE COSTS AND MINIMIZING OVERPAYMENTS RESULTING FROM THE PREPARATION OF FLIGHT CERTIFICATES AND OTHER DOCUMENTATIONS TO SUPPORT THE SERVICEMEN'S CLAIM FOR PAYMENT AND (2) THE UNECONOMICAL USE OF AIRCRAFT MAINTAINED AT NUMEROUS LOCATIONS FOR THE PRINCIPAL, IF NOT THE SOLE, PURPOSE OF ENABLING MEMBERS OF THE UNIFORMED SERVICES WHOSE BASIC DUTY ASSIGNMENT DOES NOT, IN FACT, REQUIRE THE PERFORMANCE OF REGULAR AND FREQUENT AERIAL FLIGHT TO MEET TIME REQUIREMENTS NOW PRESCRIBED IN EXECUTIVE ORDER NO. 10152 AND THUS QUALIFY FOR AND RECEIVE THE INCENTIVE PAY FOR AERIAL FLIGHT DUTY AUTHORIZED IN 37 U.S.C. 301 (A) (1) AND (4).

AS TO THE NEED FOR THE PREPARATION OF MONTHLY FLIGHT CERTIFICATES AND OTHER DOCUMENTATIONS, THIS OFFICE WILL NOT OBJECT TO DISCONTINUING THE REQUIREMENT THAT SUCH CERTIFICATES BE PREPARED AND SUBMITTED IN SUPPORT OF THE PAYMENT OF AERIAL FLIGHT PAY; IT BEING UNDERSTOOD, OF COURSE, THAT SUFFICIENT ADMINISTRATIVE RECORDS WOULD BE MAINTAINED AT THE BASE LEVEL TO AUTHORIZE SUCH PAYMENTS AND FOR SUBSEQUENT REVIEW BY THIS OFFICE WHEN CIRCUMSTANCES WARRANT. IT SHOULD BE UNDERSTOOD, ALSO, THAT AN APPROPRIATE MILITARY PAY ORDER COVERING THE FIRST PAY PERIOD IN WHICH AERIAL FLIGHT PAY BECOMES DUE SHOULD BE SUBMITTED IN SUPPORT OF THAT PAYMENT AND A MILITARY PAY ORDER SHOULD BE SUBMITTED EACH TIME THERE IS ANY CHANGE IN THE MEMBER'S QUALIFICATION OR ENTITLEMENT TO SUCH FLIGHT PAY. WITH RESPECT TO FLIGHTS PERFORMED UNDER THE CIRCUMSTANCES INDICATED IN ITEM (2) ABOVE, IT IS OUR VIEW THAT PAYMENT OF INCENTIVE (AERIAL FLIGHT) PAY ON A REGULAR MONTHLY BASIS TO OTHERWISE QUALIFIED MEMBERS OF THE UNIFORMED SERVICES WITHOUT THE NECESSITY OF MEETING MINIMUM FLIGHT TIME REQUIREMENTS WILL RESULT IN A SUBSTANTIAL NET SAVINGS TO THE GOVERNMENT BY THE ELIMINATION OF ,MINIMUM FLIGHT TIME" PLANES AND THE ATTENDANT MAINTENANCE AND SERVICING COSTS. WE FEEL SUCH SAVINGS ARE POSSIBLE WITHOUT ANY REDUCTION IN THE OVER-ALL AVIATION SKILL AND EFFICIENCY OF ANY INDIVIDUAL ON FLYING DUTY AND WITHOUT AFFECTING THE BASIC AVIATION STANDARDS OF THE UNIFORMED SERVICES. OUR VIEWS ARE PREDICATED TO SOME EXTENT ON THE FACT THAT IN OUR REVIEW AT AIR FORCE BASES WE HAVE NOTED AND HAVE BEEN INFORMED BY AIR FORCE OFFICIALS THAT MANY OF THE AIRCRAFT USED FOR PROFICIENCY FLYING ARE OBSOLETE AND CONTRIBUTE VERY LITTLE TO A RATED PILOT'S BASIC FLYING SKILLS. WE DOUBT THAT, FROM THE STANDPOINT OF SAFETY, MEMBERS WHO ARE REQUIRED TO FLY SUCH PLANES IN ORDER TO MEET THE MINIMUM FLIGHT TIME REQUIREMENTS WOULD BE PERMITTED TO FLY TACTICAL AND MODERN OPERATIONAL AIRCRAFT ESSENTIAL TO THE NATIONAL DEFENSE STRUCTURE WITHOUT EXTENSIVE REFRESHER TRAINING.

SECTION 514 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1964, PUB.L. 88-149, 77 STAT. 266, PROVIDES AS FOLLOWS:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXECUTIVE ORDER, OR REGULATION, NO PART OF THE APPROPRIATIONS IN THIS ACT SHALL BE AVAILABLE FOR ANY EXPENSES OF OPERATING AIRCRAFT UNDER THE JURISDICTION OF THE ARMED FORCES FOR THE PURPOSE OF PROFICIENCY FLYING EXCEPT IN ACCORDANCE WITH THE REGULATIONS ISSUED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED AND APPROVED BY THE SECRETARY OF DEFENSE WHICH SHALL ESTABLISH PROFICIENCY STANDARDS AND MAXIMUM AND MINIMUM FLYING HOURS FOR THIS PURPOSE: PROVIDED, THAT WITHOUT REGARD TO ANY PROVISION OF LAW OR EXECUTIVE ORDER PRESCRIBING MINIMUM FLIGHT REQUIREMENTS, SUCH REGULATIONS MAY PROVIDE FOR THE PAYMENT OF FLIGHT PAY AT THE RATES PRESCRIBED IN SECTION 301 OF TITLE 37, U.S.C. TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN FIFTEEN YEARS, OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS.'

IN THESE STATUTORY PROVISIONS CONGRESS CLEARLY DISCLOSES THE INTENT TO REDUCE THE COST OF OPERATING AIRCRAFT UNDER THE JURISDICTION OF THE ARMED FORCES WHERE THE SOLE PURPOSE OF MAINTAINING SUCH AIRCRAFT IS TO MAKE IT POSSIBLE TO MEET THE REQUIREMENTS OF PROFICIENCY FLYING. ALSO, IT WILL BE NOTED THAT CONGRESS HAS FURTHER PROVIDED THAT, WITHOUT REGARD TO ANY PROVISION OF LAW OR EXECUTIVE ORDER PRESCRIBING MINIMUM FLIGHT REQUIREMENTS, THE REGULATIONS ISSUED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED AND APPROVED BY THE SECRETARY OF DEFENSE, AS AUTHORIZED IN THE BASIC PROVISIONS OF SECTION 514, MAY PROVIDE FOR PAYMENT OF FLIGHT PAY AT THE RATES STATED IN 37 U.S.C. 301 TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN 15 YEARS OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS.

SIMILAR PROVISIONS (WITH SOME RELATIVELY MINOR MODIFICATIONS FROM TIME TO TIME) HAVE BEEN INCLUDED IN DEPARTMENT OF DEFENSE APPROPRIATION ACTS COMMENCING WITH THE ACT OF AUGUST 1, 1953, CH. 305, 67 STAT. 336, COVERING THE FISCAL YEAR, 1954. SECTION 628 OF THAT ACT, 67 STAT. 354, RESTRICTED THE FUNDS THEREIN APPROPRIATED, OR APPROPRIATED IN ANY OTHER ACT, FOR OPERATING AIRCRAFT SO AS TO LIMIT PROFICIENCY FLYING TO 100 HOURS FOR THAT FISCAL YEAR. THE PROVISO IN SECTION 628 WAS APPLICABLE TO THOSE OFFICERS WHO HAD HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN 20 YEARS OR WHOSE PARTICULAR DUTY ASSIGNMENT OUTSIDE THE UNITED STATES MADE IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS. THE SPECIFIC 100 -HOUR RESTRICTION MENTIONED IN THE 1953 ACT WAS DISCONTINUED AFTER THE FISCAL YEAR 1954 AND SUCH A LIMITATION HAS NOT BEEN INCORPORATED IN ANY OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS FOR THE FISCAL YEARS 1955 TO DATE.

IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR 1957, ACT OF JULY 2, 1956, CH. 488, THE PROVISO IN SECTION 616 OF THAT ACT, 70 STAT. 470, WAS MADE APPLICABLE TO "MEMBERS" IN LIEU OF "OFFICERS" AND SECTION 615 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, PUB.L. 85-724, AUGUST 22, 1958, 72 STAT. 726, AS AMENDED, EFFECTIVE JANUARY 3, 1959, IN THE SECOND SUPPLEMENTAL APPROPRIATION ACT, 1959, PUB.L. 86-30, 73 STAT. 38, EXTENDED THE OPERATION OF CLAUSE (2) IN THE PROVISO TO MEMBERS WHOSE PARTICULAR DUTY ASSIGNMENT IN ALASKA, AS WELL AS OUTSIDE THE UNITED STATES, MADE IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS. THE MOST RECENT PERTINENT CHANGE WAS MADE IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1962, PUB.L. 87-144, AUGUST 17, 1961, WHEREIN SECTION 614, 75 STAT. 378, REDUCED THE PERIOD SPECIFIED IN CLAUSE (1) FROM 20 TO 15 YEARS.

IN THE FISCAL YEARS 1952 AND 1953, IMMEDIATELY PRECEDING THE PERIOD ABOVE REFERRED TO, THE FOLLOWING LIMITATION WAS PLACED BY CONGRESS ON THE USE OF FUNDS APPROPRIATED IN THE APPROPRIATIONS FOR THOSE FISCAL YEARS:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAYMENT OF FLIGHT PAY TO PERSONNEL WHOSE ACTUAL ASSIGNED DUTIES DO NOT INVOLVE OPERATIONAL OR TRAINING FLIGHTS.'

SEE SECTION 633, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, CH. 512, OCTOBER 18, 1951, 65 STAT. 450, AND SECTION 651, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, CH. 630, JULY 10, 1952, 66 STAT. 537.

THUS, IT APPEARS THAT FOR MANY YEARS CONGRESS HAS BEEN SEEKING A METHOD TO ELIMINATE EXCESSIVE COSTS OF AVIATION FLIGHT PAY ACTIVITIES WITHOUT REDUCING THE EFFECTIVENESS OF THE AVIATION SERVICES OF THE ARMED FORCES. IT WAS FIRST SOUGHT TO HAVE ALL PERSONNEL OF THE UNIFORMED SERVICES REMOVED FROM INCENTIVE (AERIAL FLIGHT) PAY STATUS WHOSE ACTUAL ASSIGNED DUTIES DID NOT INVOLVE OPERATIONAL OR TRAINING FLIGHTS. NEXT, RESTRICTIONS WERE IMPOSED ON PROFICIENCY FLYING AND CERTAIN INDIVIDUALS WERE EXEMPTED FROM ALL MINIMUM FLIGHT TIME REQUIREMENTS. THESE ACTIONS HAVE FALLEN SHORT OF THE GOAL SOUGHT SINCE THE ULTIMATE SAVINGS POSSIBLE IN THIS AREA CAN BE REALIZED ONLY BY THE ELIMINATION OF "MINIMUM FLIGHT TIME" PLANES NOW BEING MAINTAINED AT UNREASONABLE COSTS TO THE GOVERNMENT SOLELY FOR THE PURPOSE OF QUALIFYING FOR FLIGHT PAY RATHER THAN MAINTAINING FLYING SKILL.

THE PROPOSAL TO AMEND SECTION 4 OF THE EXECUTIVE ORDER SO AS TO CHANGE THE MINIMUM FLIGHT TIME REQUIREMENT FROM 4 HOURS PER CALENDAR MONTH TO 48 HOURS PER FISCAL YEAR DOES NOT APPEAR TO PRESENT ANY SOLUTION TO THE BASIC PROBLEM OF EXCESSIVE COSTS RESULTING FROM THE MAINTENANCE OF "MINIMUM FLIGHT TIME" PLANES. WE ARE NOT UNMINDFUL, OF COURSE, THAT THERE IS A DEFINITE NEED FOR FLIGHT TRAINING AND MINIMUM FLIGHT TIME REQUIREMENTS AS WELL AS THE FACT THAT THE PLANES AS MACHINES REQUIRE CONSTANT ATTENTION AND FUNCTION AT THEIR PEAK EFFICIENCY ONLY WHEN PROPERLY MAINTAINED AND REGULARLY FLOWN.

A POSITIVE STEP IN THAT DIRECTION COULD BE TAKEN IN THE NEXT FISCAL YEAR (1965) BY CHANGING THE LANGUAGE OF THE PROVISO CONTAINED IN SECTION 514, H.R. 10939, 88TH CONGRESS "AN ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF DEFENSE FOR THE FISCAL YEAR ENDING JUNE 30, 1965, AND FOR OTHER PURPOSES" (WHICH SECTION, AS PRESENTLY WORDED, IS IDENTICAL WITH SECTION 514 IN THE 1964 DEPARTMENT OF DEFENSE APPROPRIATION ACT) TO READ AS FOLLOWS:

"PROVIDED, THAT WITHOUT REGARD TO ANY PROVISION OF LAW, OR EXECUTIVE ORDER PRESCRIBING MINIMUM FLIGHT REQUIREMENTS, SUCH REGULATIONS MAY PROVIDE FOR THE PAYMENT OF FLIGHT PAY AT THE RATES PRESCRIBED IN SECTION 301 OF TITLE 37, U.S.C. TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR

"/1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN 15 YEARS,

"/2) WHOSE DUTY ASSIGNMENT DOES NOT INVOLVE OR REQUIRE REGULAR AND FREQUENT AERIAL FLIGHTS, OR

"/3) WHOSE DUTY STATION IS SO LOCATED AS TO MAKE IMPRACTICAL THE PERFORMANCE OF REGULAR AND FREQUENT AERIAL FLIGHTS.'

WE BELIEVE THAT THE SUGGESTED CHANGES IN THE LANGUAGE OF THE PROVISO OF SECTION 514 OF H.R. 10939, 88TH CONGRESS, WOULD PERMIT VERY SUBSTANTIAL REDUCTIONS IN THE NUMBER OF "MINIMUM FLIGHT TIME" PLANES PRESENTLY BEING EMPLOYED. ACCORDINGLY, WE ARE OF THE OPINION THAT LEGISLATION SHOULD BE PROPOSED TO THE CONGRESS TO ACCOMPLISH CHANGES IN THE PROVISO AS SUGGESTED ABOVE.

A COPY OF THIS LETTER IS BEING SENT TO THE SECRETARY OF DEFENSE, THE CHAIRMAN, SUBCOMMITTEE ON DEPARTMENT OF DEFENSE, COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, THE CHAIRMAN, COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AND THE CHAIRMAN, COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE.