B-140799, FEBRUARY 25, 1960, 39 COMP. GEN. 604

B-140799, FEBRUARY 25, 1960, 39 COMP. GEN. 604

MILITARY PERSONNEL - PAY - AVIATION DUTY - INCAPACITY PERIODS THE FLIGHT PAY PRESCRIBED IN SECTION 614, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, FOR MEMBERS OF THE UNIFORMED SERVICES WHO HAVE HELD AERONAUTICAL RATINGS FOR 20 YEARS OR MORE AND CERTAIN MEMBERS STATIONED OUTSIDE THE UNITED STATES OR IN ALASKA, WHERE PARTICIPATION IN FLYING DUTY IS IMPRACTICABLE, WAS NOT INTENDED AS A GRATUITY IRRESPECTIVE OF THE AVAILABILITY AND PHYSICAL FITNESS OF SUCH MEMBERS FOR FLIGHT DUTY, SO THAT AN IMPLEMENTING REGULATION WHICH WOULD PERMIT FLIGHT PAY TO SUCH MEMBERS WHO BECOME PHYSICALLY INCAPACITATED FOR FLYING DUTY AS A RESULT OF THE PERFORMANCE UNDER ORDERS OF HAZARDOUS DUTY FOR 3 MONTHS FOLLOWING THE MONTH IN WHICH THE INCAPACITY WAS INCURRED AS AUTHORIZED IN SECTION 10 OF EXECUTIVE ORDER NO. 10152 WOULD BE PROPER, BUT SECTION 614 OF THE 1960 ACT DOES NOT CONTAIN AUTHORITY FOR PAYMENT OF FLIGHT PAY WHILE THE MEMBER IS STILL INCAPACITATED BEYOND THE 3-MONTH PERIOD. MEMBERS OF THE UNIFORMED SERVICES WHO ARE COVERED BY THE FLIGHT PAY PROVISIONS IN SECTION 614, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, AND WHO BECOME PHYSICALLY INCAPACITATED FOR FLYING FOR ANY REASON OTHER THAN AS A RESULT OF A PERFORMANCE OF HAZARDOUS DUTY MAY, BY REGULATION, BE PERMITTED TO CONTINUE TO RECEIVE FLYING PAY FOR 3 MONTHS; HOWEVER, THE MATTER OF SUSPENSION FROM FLYING STATUS AT THE END OF SUCH PERIOD IS NOT REQUIRED UNDER EXECUTIVE ORDER NO. 10152, BUT IS LEFT TO THE DISCRETION OF THE INDIVIDUAL SECRETARIES. A PROPOSED REGULATION TO WITHHOLD FLIGHT PAY FROM MEMBERS OF THE UNIFORMED SERVICES, WHO ARE COVERED BY THE FLIGHT PAY PROVISIONS IN SECTION 614, DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, AND WHO ARE SUSPENDED FROM A FLYING STATUS FOR REASONS OTHER THAN FOR PHYSICAL INCAPACITY, FOR THE PERIOD OF SUSPENSION UNLESS THE SUSPENSION IS REMOVED WITHIN 3 MONTHS WOULD NOT BE IMPROPER, THERE BEING NO FLIGHT REQUIREMENTS FOR SUCH MEMBERS SO THAT NO FLIGHT DEFICIENCIES WOULD HAVE TO BE MADE UP.

TO THE SECRETARY OF DEFENSE, FEBRUARY 25, 1960:

REFERENCE IS MADE TO LETTER OF DECEMBER 15, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION WHETHER THERE IS ANY LEGAL OBJECTION TO THE ISSUANCE OF PROPOSED REGULATIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 254, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE PROPOSED REGULATIONS ARE INTENDED TO IMPLEMENT SECTION 614 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, PUBLIC LAW 86-166, APPROVED AUGUST 18, 1959, 73 STAT. 380-381.

THE ABOVE SECTION READS 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 204 (B) OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802), AS AMENDED, TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE FISCAL YEAR 1960 (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN 20 YEARS, OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS.

SECTION 4 OF THE EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, PROVIDES IN PERTINENT PART THAT:

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 PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY.

(A) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949:

(1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT.

(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS

OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE

REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 12 HOURS

AERIAL FLIGHT. * * *

SECTION 5 OF THE EXECUTIVE ORDER PROVIDES THAT:

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 4 HEREOF HAVE BEEN COMPLIED WITH, EXCEPT AS OTHERWISE PROVIDED IN SECTION 10 HEREOF.

SECTION 10 OF THE EXECUTIVE ORDER IS AS FOLLOWS:

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

BEFORE DISCUSSING THE PROPOSED REGULATIONS IT IS APPROPRIATE TO POINT OUT THAT IN 34 COMP. GEN. 243, IN DISCUSSING THE PROVISIONS OF SECTION 628 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, 67 STAT. 354--- ALMOST IDENTICAL WITH THE PROVISIONS OF SECTION 614, SUPRA -- WE STATED, AT PAGE 246, THAT:

WHILE SECTION 628 PROVIDES THAT UNDER CERTAIN CONDITIONS FLIGHT PAY MAY ACCRUE WITHOUT MEETING THE FLIGHT REQUIREMENTS PRESCRIBED IN EXECUTIVE ORDER NO. 10152, IT DOES NOT PURPORT TO AFFECT IN ANY OTHER WAY THE OPERATION OF THE EXECUTIVE ORDER.

THAT RULE IS ALSO FOR APPLICATION HERE.

THE PROPOSED REGULATIONS ARE AS FOLLOWS:

A. ANY MEMBER, FOR WHOM THE FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED, WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR A 3 MONTHS GRACE PERIOD AUTHORIZED BY SECTION 10 OF EXECUTIVE ORDER 10152 COMMENCING ON THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE INCAPACITY OCCURRED, AND FOLLOWING SUCH 3 MONTHS PERIOD SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR AN ADDITIONAL 3 MONTHS PERIOD COMMENCING ON THE DATE SUBSEQUENT TO THE DATE ON WHICH THE FIRST GRACE PERIOD EXPIRED. THE SECRETARIES CONCERNED SHALL BE REQUIRED TO SUSPEND FROM FLYING STATUS ANY MEMBER WHO REMAINS INCAPACITATED AT THE EXPIRATION OF THE 6 MONTHS GRACE PERIOD.

B. ANY MEMBER FOR WHOM FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED, WHO IS INCAPACITATED FOR ANY REASON, OTHER THAN AS A RESULT OF PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY TO WHICH OTHERWISE ENTITLED THROUGH THE DATE PRECEDING THE DATE ON WHICH HE IS SUSPENDED FROM FLYING STATUS. THE SECRETARIES CONCERNED SHALL BE REQUIRED TO SUSPEND FROM FLYING STATUS ANY MEMBER WHO REMAINS INCAPACITATED FOR A PERIOD OF 3 CONSECUTIVE MONTHS FROM THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE INCAPACITY OCCURRED.

C. ANY MEMBER FOR WHOM FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED AND WHO IS SUSPENDED FROM FLYING DUTY FOR REASONS OF OTHER THAN INCAPACITY, AND SUCH SUSPENSION IS SUBSEQUENTLY REMOVED, SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERIOD CONCERNED PROVIDED THE SUSPENSION IS REMOVED WITHIN A 3 MONTHS PERIOD COMMENCING ON THE DATE OF SUSPENSION.

PARAGRAPH "A" OF THE PROPOSED REGULATIONS PERTAINS TO MEMBERS, COVERED BY SECTION 614, WHO BECOME PHYSICALLY INCAPACITATED FOR FLYING DUTY AS A RESULT OF THE PERFORMANCE UNDER ORDERS OF HAZARDOUS DUTY. IN THIS CONNECTION, WE ARE OF THE OPINION THAT IN ENACTING SECTION 614 THE CONGRESS DID NOT INTEND TO BESTOW A GRATUITY UPON CERTAIN MEMBERS WHO HAVE HELD AERONAUTICAL RATINGS FOR 20 YEARS OR MORE, AND CERTAIN MEMBERS STATIONED OUTSIDE THE UNITED STATES OR IN ALASKA WHERE PARTICIPATION IN FLYING DUTY IS IMPRACTICABLE. INSTEAD, IT MUST HAVE BEEN INTENDED THAT AT LEAST SOME BENEFIT, ACTUAL OR POTENTIAL, WOULD ACCRUE TO THE GOVERNMENT IN EXCHANGE FOR THE SUBSTANTIAL MONETARY BENEFITS CONFERRED UPON THESE MEMBERS. IT IS BELIEVED THAT THE CONGRESS INTENDED THAT SUCH MEMBERS BE AVAILABLE FOR FLYING DUTY IF AND WHEN SUCH DUTY MIGHT BE REQUIRED TO THE SAME EXTENT AS OTHER MEMBERS WHO ARE ENTITLED TO FLYING PAY. AVAILABILITY FOR FLYING DUTY PRESUPPOSES PHYSICAL FITNESS FOR FLYING DUTY.

IN THE SITUATION CONTEMPLATED BY THE PROPOSED REGULATIONS IN PARAGRAPH "A," THE MEMBER WOULD BE ENTITLED TO FLYING PAY FOR 3 MONTHS FOLLOWING THE MONTH IN WHICH THE INCAPACITY WAS INCURRED AS AUTHORIZED IN SECTION 10 OF EXECUTIVE ORDER NO. 10152. SECTION 614 DOES NOT CONTAIN AUTHORITY FOR THE PAYMENT OF FLYING PAY, WHILE THE MEMBER IS STILL INCAPACITATED, BEYOND THE PERIOD AUTHORIZED IN THE EXECUTIVE ORDER. 34 COMP. GEN. 243, 246.

ACCORDINGLY, IT IS OUR VIEW THAT THE REGULATIONS PROPOSED IN PARAGRAPH "A" ARE UNAUTHORIZED TO THE EXTENT THAT THEY RELATE TO THE SECOND GRACE PERIOD. WE SEE NO OBJECTION TO THE LAST SENTENCE SINCE THE MATTER OF WHEN A SUSPENSION SHOULD BE MADE FROM FLYING STATUS WOULD SEEM TO BE AN ADMINISTRATIVE MATTER.

PARAGRAPH "B" OF THE PROPOSED REGULATIONS WOULD PROVIDE, IN EFFECT, THAT A MEMBER COVERED BY SECTION 614 WHO BECOMES PHYSICALLY INCAPACITATED FOR FLYING FOR ANY REASON OTHER THAN AS A RESULT OF A PERFORMANCE OF HAZARDOUS DUTY, SHALL CONTINUE TO RECEIVE FLYING PAY FOR THREE MONTHS, AT THE END OF WHICH HE SHALL BE SUSPENDED FROM FLYING STATUS AND CEASE TO BE ENTITLED TO FLYING PAY. EXECUTIVE ORDER NO. 10152 IMPOSES NO REQUIREMENTS AS TO WHEN A SUSPENSION FROM FLYING STATUS SHALL BE MADE, THAT MATTER APPARENTLY BEING LEFT TO THE DISCRETION OF THE INDIVIDUAL SECRETARIES. IT IS NOTED THAT PARAGRAPH 29G (1), AIR FORCE MANUAL 35-13C, DECEMBER 9, 1958, PROVIDES THAT IN CASE OF INCAPACITY NOT DUE TO THE PERFORMANCE OF HAZARDOUS DUTY, SUSPENSION WILL NOT BE MADE UNTIL A PERIOD OF THREE MONTHS HAS ELAPSED.

WE SEE NO OBJECTION TO THE ISSUANCE OF PARAGRAPH "B.'

THE PROPOSED REGULATIONS CONTAINED IN PARAGRAPH "C" PERTAIN TO MEMBERS COVERED BY SECTION 614 WHO ARE SUSPENDED FROM A FLYING STATUS FOR REASONS OTHER THAN PHYSICAL INCAPACITY. IT APPARENTLY IS CONTEMPLATED THAT FLYING PAY BE WITHHELD FOR THE PERIOD OF THE SUSPENSION, UNLESS THE SUSPENSION IS REMOVED WITHIN 3 MONTHS. PARAGRAPH 5 OF EXECUTIVE ORDER NO. 10152 PROVIDES THAT MEMBERS (OBLIGATED TO MEET FLYING REQUIREMENTS) SHALL NOT BE ENTITLED TO FLYING PAY WHILE SUSPENDED FROM FLYING STATUS UNLESS THE SUSPENSION IS REMOVED AND FLYING REQUIREMENTS FOR THE PERIOD OF THE SUSPENSION ARE MET. THE MAXIMUM PERIOD UNDER SECTION 4 OF THE EXECUTIVE ORDER FOR MAKING UP FLIGHT DEFICIENCIES IS 3 MONTHS. SINCE THERE ARE NO FLIGHT REQUIREMENTS FOR MEMBERS COVERED BY 614, THERE WOULD BE NO FLIGHT DEFICIENCIES FOR THEM TO MAKE UP. THUS, THE PROPOSED REGULATIONS APPEAR TO CONTEMPLATE A SITUATION COMPARABLE TO THAT COVERED BY SECTIONS 4 AND 5 OF THE EXECUTIVE ORDER AS TO MEMBERS NOT COVERED BY SECTION 614.