A-21226, FEBRUARY 14, 1928, 7 COMP. GEN. 476

A-21226: Feb 14, 1928

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HIS RATE OF PAY FOR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY IS INCLUSIVE OF THE INCREASED PAY FOR FLYING. THE CLAIM IS PRESENTED UNDER THE ACT OF DECEMBER 17. IT IS STATED THAT AN AMOUNT EQUAL TO SIX MONTHS' BASE PAY AND LONGEVITY PAY. THE PAPERS SUBMITTED SHOW THAT MAJOR SHERMAN AT THE DATE OF HIS DEATH WAS AND HAD BEEN CONTINUOUSLY ASSIGNED TO FLYING DUTY FROM JULY 1. HE WAS NOT ENTITLED TO BE PAID FLYING PAY UNLESS AND UNTIL HE HAD COMPLIED WITH THE FLYING REQUIREMENTS. FLYING PAY IS NOT DUE AS A PART OF THE ARREARS OF PAY DUE THE ESTATE OF THE LATE OFFICER. IT WAS HELD. THAT THE SIX MONTHS' PAY INCLUDED COMPENSATION OF EVERY KIND AND CHARACTER TO WHICH THE DECEASED WAS ENTITLED AT THE DATE OF HIS DEATH AND WHICH IS "PAY" AS DISTINGUISHED FROM ALLOWANCES.

A-21226, FEBRUARY 14, 1928, 7 COMP. GEN. 476

GRATUITIES - SIX MONTHS' DEATH - ARMY OFFICER WHERE AN OFFICER OF THE AIR CORPS OF THE ARMY, HOLDING A PILOT'S RATING AND ASSIGNED TO FLYING DUTY, DIES, WITHOUT MAKING ANY FLIGHTS DURING THE THREE MONTHS SUCCEEDING THE QUARTER IN WHICH HE LAST COMPLIED WITH THE FLYING REQUIREMENTS, HIS RATE OF PAY FOR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY IS INCLUSIVE OF THE INCREASED PAY FOR FLYING, ALTHOUGH NO FLYING PAY ACCRUED TO HIM ON THE DATE OF HIS DEATH. 17 COMP. DEC. 828, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO MAJ. E. T. COMEGYS, UNITED STATES ARMY, FEBRUARY 14, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 7, 1928, SUBMITTING VOUCHER IN FAVOR OF DIXIE MILLING SHERMAN, WIDOW OF THE LATE MAJ. WILLIAM C. SHERMAN, AIR CORPS, UNITED STATES ARMY, WHO DIED WHILE ON THE ACTIVE LIST OF THE ARMY, NOVEMBER 22, 1927, FOR $1,012.50, AN AMOUNT EQUAL TO SIX MONTHS' FLYING PAY AT THE RATE RECEIVED BY THE DECEASED. THE CLAIM IS PRESENTED UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367. IT IS STATED THAT AN AMOUNT EQUAL TO SIX MONTHS' BASE PAY AND LONGEVITY PAY, $2,025, HAS BEEN PAID THE WIDOW. THE PAPERS SUBMITTED SHOW THAT MAJOR SHERMAN AT THE DATE OF HIS DEATH WAS AND HAD BEEN CONTINUOUSLY ASSIGNED TO FLYING DUTY FROM JULY 1, 1922; THAT FOR THE QUARTER ENDED OCTOBER 31, 1927, HE MADE 33 FLIGHTS OF 9 HOURS AND 30 MINUTES DURATION, BUT THAT FOR THE MONTH OF NOVEMBER, 1927, HE HAD MADE NO FLIGHTS. AT THE DATE OF DEATH, UNDER THE TERMS OF THE LAW AND THE EXECUTIVE ORDER ISSUED PURSUANT THERETO, HE WAS NOT ENTITLED TO BE PAID FLYING PAY UNLESS AND UNTIL HE HAD COMPLIED WITH THE FLYING REQUIREMENTS, AND THERE HAVING BEEN NO COMPLIANCE THEREWITH DURING THE 22 DAYS OF NOVEMBER PRIOR TO HIS DEATH, FLYING PAY IS NOT DUE AS A PART OF THE ARREARS OF PAY DUE THE ESTATE OF THE LATE OFFICER.

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, PROVIDES:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE QUARTERMASTER GENERAL OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW * * * AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * *

UNDER STATUTES WORDED SIMILAR TO THE FOREGOING, IT WAS HELD, 14 COMP. DEC. 851 AND 882, 21 ID. 848, THAT THE SIX MONTHS' PAY INCLUDED COMPENSATION OF EVERY KIND AND CHARACTER TO WHICH THE DECEASED WAS ENTITLED AT THE DATE OF HIS DEATH AND WHICH IS "PAY" AS DISTINGUISHED FROM ALLOWANCES, INCLUDING FLYING PAY. THE PAY ACTUALLY ACCRUING TO AN OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH SEEMS TO HAVE BEEN THE DETERMINING FACTOR AS, IN THE CASE OF AN ENLISTED MAN, CONTINUOUSLY DETAILED TO EXTRA DUTY, WHO, BY REASON OF ILLNESS IMMEDIATELY PRIOR TO HIS DEATH, PERFORMED NO DUTY, IT WAS HELD THE AMOUNT EQUAL TO SIX MONTHS' PAY SHOULD NOT INCLUDE EXTRA DUTY PAY. 17 COMP. DEC. 828. THE STATUS THERE INVOLVED WAS NOT AS IN THE INSTANT MATTER. THE PAY THERE CONSIDERED WAS EARNED OR NOT EARNED WITH THE PASSING OF EACH DAY, WAS PAYABLE ONLY FOR THE ACTUAL PERFORMANCE OF EXTRA DUTY AND IF THE EXTRA DUTY WAS NOT PERFORMED, THE PAY AUTHORIZED THEREFOR WAS NOT FOR THAT DAY A PART OF THE RATE OF PAY RECEIVED BY THE DECEASED AT THE DATE OF HIS DEATH.

FLYING PAY IS AN ADDITION TO PAY PROPER AND IS PAYABLE PURSUANT TO LAW AND REGULATIONS, ONLY AFTER THE PERFORMANCE OF THE FLIGHTS PRESCRIBED BY REGULATIONS; BUT AN INTERPRETATION OF THE LAWS AND REGULATIONS APPLICABLE SUGGEST, NEVERTHELESS, FLYING PAY MAY BE A PART OF THE RATE OF PAY OF AN OFFICER OR ENLISTED MAN HOLDING A PILOT'S RATING AND CONTINUOUSLY ASSIGNED TO FLYING DUTY, NOTWITHSTANDING HE DOES NOT, DURING THE MONTH OR QUARTER IN WHICH HIS DEATH OCCURS, PERFORM FLIGHTS ENTITLING HIM TO THE ADDITIONAL PAY FOR FLYING ON THE DATE OF HIS DEATH.

SECTION 13 (A) OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 2 OF THE ACT OF JULY 2, 1926, 44 STAT. 781, PROVIDES:

THERE IS HEREBY CREATED AN AIR CORPS * * *: PROVIDED, THAT THE CHIEF OF THE AIR CORPS, AT LEAST TWO BRIGADIER GENERALS, AND AT LEAST 90 PERCENTUM OF THE OFFICERS IN EACH GRADE BELOW THAT OF BRIGADIER GENERAL SHALL BE FLYING OFFICERS:

* * * PROVIDED FURTHER, THAT ANY OFFICER WHO IS SPECIFICALLY RECOMMENDED BY THE SECRETARY OF WAR BECAUSE OF SPECIAL QUALIFICATIONS OTHER THAN AS A FLYER MAY BE DETAILED TO THE AIR CORPS FOR A PERIOD LONGER THAN ONE YEAR, OR MAY BE PERMANENTLY COMMISSIONED IN THE AIR CORPS, BUT SUCH OFFICERS, TOGETHER WITH THOSE FLYING OFFICERS WHO SHALL HAVE BECOME DISQUALIFIED FOR FLYING, SHALL NOT BE INCLUDED AMONG THE 90 PERCENTUM OF FLYING OFFICERS: AND PROVIDED FURTHER, * * *WHEREVER USED IN THIS ACT A FLYING OFFICER IN TIME OF PEACE IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT: PROVIDED, THAT ALL OFFICERS OF THE AIR CORPS NOW HOLDING ANY RATING AS A PILOT SHALL BE CONSIDERED AS FLYING OFFICERS WITHIN THE MEANING OF THIS ACT * * *. OFFICERS AND ENLISTED MEN OF THE ARMY SHALL RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAS HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT: * * *

THE EXECUTIVE ORDER OF MARCH 10, 1927, PROVIDES, PARAGRAPHS 2 AND 10:

2. EACH OFFICER OR WARRANT OFFICER WHO IS A QUALIFIED AIRCRAFT PILOT AND WHO IS NOT UNFIT FOR DUTIES AS SUCH, AND WHO IS COMMISSIONED IN, OR DULY ASSIGNED OR ATTACHED TO THE AIR CORPS OF THE ARMY, * * * INCLUDING THOSE ASSIGNED TO SPECIAL, ADMINISTRATIVE, OR SCHOOL DUTIES, SHALL BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS; ORDERS REQUIRING SUCH FLIGHTS SHALL BE ISSUED BY THE CHIEF OF AIR CORPS FOR THE ARMY, * * * AND SUCH ORDERS SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH COMMISSION, ASSIGNMENT, OR ATTACHMENT, EXCEPT AS HEREINAFTER PROVIDED IN PARAGRAPH 12.

10. FOR PERSONNEL OF THE ARMY, * * * WHO ARE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, THE FOLLOWING REQUIREMENTS ARE PRESCRIBED: * * *

(A) DURING ONE CALENDAR MONTH 10 FLIGHTS TOTALING AT LEAST 3 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF 4 HOURS.

(B) DURING 2 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (A) ABOVE HAVE NOT BEEN MET. 20 FLIGHTS TOTALING AT LEAST 6 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF 8 HOURS.

(C) DURING 3 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (B) ABOVE HAVE NOT BEEN MET. 30 FLIGHTS TOTALING AT LEAST 9 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF 12 HOURS.

PARAGRAPH 12 OF THE EXECUTIVE ORDER PROVIDES FOR SUSPENSIONS FROM FLYING AND IS NOT APPLICABLE HERE. THE PURPOSE OF THE LAST QUOTED LAWIS TO ESTABLISH AN AIR CORPS CONSISTING OF 90 PERCENT FLYING OFFICERS. THE DECEASED IN THIS CASE WAS ONE OF THE NUMBER COMPOSING THE 90 PERCENT. HAD BEEN CONTINUOUSLY ON FLYING DUTY FROM PRIOR TO JULY 1, 1922, TO THE DATE OF HIS DEATH. HE WAS UNDER ORDERS TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. CULVER V. UNITED STATES, 271 U.S. 315. EXAMINATION OF THE RECORDS SHOWS THAT DURING THE 12 MONTHS ENDED OCTOBER 31, 1927, HE HAD MADE THE REQUIRED FLIGHTS DURING THE ENTIRE YEAR. UNDER THE TERMS OF THE REGULATIONS, HE WAS PERMITTED UNTIL JANUARY 31, 1928, TO COMPLY WITH THE FLYING REQUIREMENTS FOR THE 3 MONTHS' PERIOD COMMENCING NOVEMBER 1, 1927. IN THESE CIRCUMSTANCES, CERTAINLY COLLOQUIALLY, AT ANY TIME BEFORE THE EXPIRATION OF THESE THREE MONTHS THE DECREASED OFFICER'S RATE OF PAY WAS HIS BASE AND LONGEVITY PAY INCREASED BY 50 PERCENT.

THE ACT OF 1919 FIXES THE AMOUNT PAYABLE TO THE WIDOW AS ONE EQUAL TO SIX MONTHS' PAY "AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH.' AS OFFICERS ARE REQUIRED TO BE PAID MONTHLY, SECTION 1268, REVISED STATUTES, AND SECTION 1189, REVISED STATUTES, REQUIRES THAT THE ARMY BE PAID IN SUCH MANNER THAT THE ARREARS SHALL AT NO TIME EXCEED TWO MONTHS IF AVOIDABLE, OBVIOUSLY THE ACT OF 1919 DOES NOT CONTEMPLATE THE DAILY PAYMENT OF PAY TO ESTABLISH THE RATE OF PAY RECEIVED; AND WAS INTENDED TO INCLUDE THE RATE OF PAY WHICH THE OFFICER BY VIRTUE OF HIS RANK, LENGTH OF SERVICE, ASSIGNMENT AND DUTY STATUS WAS ENTITLED TO RECEIVE. THIS IS THE RATE OF PAY RECEIVED BY THE OFFICER AT THE DATE OF HIS DEATH, NOTWITHSTANDING THE FULL AMOUNT OF THE RATE OF PAY WAS NOT PAYABLE ON DATE OF DEATH BECAUSE OF FAILURE TO PERFORM THE CONDITIONS PRECEDENT TO THE PAYMENT OF SOME PART OF IT IF AT THE TIME OF DEATH THE PERIOD HAD NOT EXPIRED DURING WHICH SUCH CONDITION PRECEDENT COULD HAVE BEEN PERFORMED TO ENTITLE TO PAYMENT OF THE FULL RATE OF PAY AUTHORIZED BY HIS ASSIGNMENT AND STATUS. IT IS ACCORDINGLY CONCLUDED THAT THE RATE OF PAY OF MAJOR SHERMAN AT THE DATE OF HIS DEATH WAS INCLUSIVE OF FLYING PAY. THE VOUCHER, IF OTHERWISE CORRECT, MAY BE PAID.