A-24506, SEPTEMBER 25, 1928, 8 COMP. GEN. 141

A-24506: Sep 25, 1928

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PAY - AVIATION DUTY - ARMY OFFICER WHERE AN OFFICER OF THE ARMY WAS SUSPENDED FROM ALL DUTY INVOLVING FLYING BY REASON OF HAVING FAILED TO PASS THE PHYSICAL EXAMINATION FOR FLYING REQUIRED BY PARAGRAPH 4 OF ARMY REGULATIONS 40-110. THE FACT THAT THE OFFICER WAS SICK IN LINE OF DUTY DURING A PORTION OF THE PERIOD WHILE UNDER SUSPENSION IN NO WAY AFFECTS HIS RIGHT TO PAY UNDER THE EXECUTIVE ORDER OF MARCH 10. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPT. SUCH FACTS WERE COMMUNICATED TO HIM BY FIRST INDORSEMENT. YOU STATE HE WAS PAID FLYING PAY FROM THAT DATE TO AUGUST 31. IS BASED ON THE FLIGHTS MADE DURING AUGUST. STATED THAT THE OFFICER "WAS SICK IN LINE OF DUTY DURING THE PERIOD FEBRUARY 16TH.

A-24506, SEPTEMBER 25, 1928, 8 COMP. GEN. 141

PAY - AVIATION DUTY - ARMY OFFICER WHERE AN OFFICER OF THE ARMY WAS SUSPENDED FROM ALL DUTY INVOLVING FLYING BY REASON OF HAVING FAILED TO PASS THE PHYSICAL EXAMINATION FOR FLYING REQUIRED BY PARAGRAPH 4 OF ARMY REGULATIONS 40-110, AUGUST 1, 1925, NO FLYING PAY ACCRUED DURING THE PERIOD OF SUSPENSION, AND THE FACT THAT THE OFFICER WAS SICK IN LINE OF DUTY DURING A PORTION OF THE PERIOD WHILE UNDER SUSPENSION IN NO WAY AFFECTS HIS RIGHT TO PAY UNDER THE EXECUTIVE ORDER OF MARCH 10, 1927, ISSUED UNDER SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782.

COMPTROLLER GENERAL MCCARL TO MAJ. JEROME CLARK, UNITED STATES ARMY, SEPTEMBER 25, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 10, 1928, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPT. NEIL CREIGHTON, AIR CORPS, UNITED STATES ARMY, IN THE AMOUNT OF $214.67 FOR ADDITIONAL PAY FOR FLYING FROM JUNE 1, TO JULY 26, 1928.

PERSONNEL ORDERS NO. 26, WAR DEPARTMENT, AIR SERVICE, DATED FEBRUARY 1, 1928, SUSPENDED CAPTAIN CREIGHTON FROM ALL DUTY INVOLVING FLYING BY REASON OF HAVING FAILED TO PASS THE PHYSICAL EXAMINATION FOR FLYING, UNTIL SUCH TIME AS A REEXAMINATION SHOULD SHOW HIM PHYSICALLY QUALIFIED FOR FLYING DUTY, AND THE TEMPORARY SUSPENSION SHOULD BE REMOVED BY ORDERS FROM THE WAR DEPARTMENT. UNDER DATE OF AUGUST 3, 1928, THE CHIEF OF THE AIR CORPS, WASHINGTON, D.C., DIRECTED THE COMMANDING OFFICER, SCOTT FIELD, BELLEVILLE, ILL., TO INFORM THIS OFFICER THAT THE EXAMINATION TAKEN BY HIM ON JULY 27, 1928, SHOWS HIM TO BE PHYSICALLY QUALIFIED FOR ALL DUTY INVOLVING FLYING. SUCH FACTS WERE COMMUNICATED TO HIM BY FIRST INDORSEMENT, DATED AUGUST 8, 1928, AND THE FLIGHT CERTIFICATE ATTACHED TO THE VOUCHER SHOWS FLIGHTS MADE BY THE OFFICER, AS FOLLOWS:

CHART.

DATE NUMBER OF PERIOD IN THE AIR

OF FLIGHTS AUG. 9 ---------------------------------- 1 1 HR. 19 MIN. AUG. 10 ---------------------------------- 1 1 HR. 40 MIN. AUG. 13 ------------ ---------------------- 1 1 HR. 25 MIN. AUG. 15 --------------------------- ------- 1 2 HR. 00 MIN. AUG. 16 ---------------------------------- 2 1 HR. 44 MIN. AUG. 28 ---------------------------------- 1 4 HR. 15 MIN.

TOTAL ------------------------------ 7 12 HR. 23 MIN.

BY RADIOGRAM OF SEPTEMBER 1, 1928, THE AIR SERVICE ADVISED THE COMMANDING OFFICER, SCOTT FIELD, THAT THIS OFFICER'S TEMPORARY SUSPENSION TERMINATED JULY 27, 1928, AND YOU STATE HE WAS PAID FLYING PAY FROM THAT DATE TO AUGUST 31, 1928, ON VOUCHER NO. 14 OF YOUR ACCOUNTS FOR SEPTEMBER, 1928. THE CLAIM FOR FLYING PAY FROM JUNE 1 TO JULY 26, 1928, IS BASED ON THE FLIGHTS MADE DURING AUGUST, 1928, AND AN UNDATED CERTIFICATE FROM MAJ. W. E. WILMERDING, MEDICAL CORPS, SURGEON AT SCOTT FIELD, STATED THAT THE OFFICER "WAS SICK IN LINE OF DUTY DURING THE PERIOD FEBRUARY 16TH, 1928, TO JULY 26TH, 1928.'

PARAGRAPH 12 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, ISSUED UNDER SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, IS AS FOLLOWS:

A COMMANDING OFFICER SHALL SUSPEND FROM FLYING ANY OFFICER, WARRANT OFFICER OR ENLISTED MAN UNDER HIS COMMAND, WHO, IN HIS OPINION, IS UNFIT FOR FLYING EXCEPT AS A RESULT OF AN AVIATION ACCIDENT. SUCH ACTION SHALL BE REPORTED WITH THE REASONS THEREFOR FOR CONFIRMATION TO THE AUTHORITY WHO ISSUED THE ORDER REQUIRING THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. THE CONFIRMATION OF SUCH ACTION SHALL HAVE THE EFFECT OF SUSPENDING THE ORDER TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS OF THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN CONCERNED FROM THE DATE OF SUCH SUSPENSION FROM FLYING WAS MADE. WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN, SO SUSPENDED FROM FLYING, BECOMES, IN THE OPINION OF HIS COMMANDING OFFICER, AGAIN FIT FOR FLYING, THE COMMANDING OFFICER SHALL REVOKE HIS SUSPENSION FROM FLYING AND SUCH ACTION SHALL BE REPORTED, WITH REASONS THEREFOR, FOR CONFIRMATION TO THE AUTHORITY WHO CONFIRMED THE SUSPENSION FROM FLYING; THE CONFIRMATION OF SUCH REVOCATION SHALL HAVE THE EFFECT OF TERMINATING THE SUSPENSION OF THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN CONCERNED FROM THE DATE OF SUCH REVOCATION BY HIS COMMANDING OFFICER. PROVIDED THAT IN THE CASE OF SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY AND THE SUSPENSION IS SUBSEQUENTLY REMOVED, SUCH SUSPENSION SHALL BE CONSIDERED AS NULLIFIED FROM ITS BEGINNING AND THE INDIVIDUAL CONCERNED SHALL BE ENTITLED TO INCREASED PAY FOR FLYING PROVIDING THE REQUIREMENTS OF PARAGRAPH 10 ABOVE ARE COMPLIED WITH.

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

* * * 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 HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT: * *

SECTION 20 OF THE JOINT PAY ACT AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, PROVIDES:

THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF ALL BRANCHES OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, 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 FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT, SHALL RECEIVE THE SAME INCREASE OF THEIR PAY AND THE SAME ALLOWANCE FOR TRAVELING EXPENSES AS ARE AUTHORIZED FOR THE PERFORMANCE OF LIKE DUTIES IN THE ARMY. * * * REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS SECTION SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE IN HIS JUDGMENT, BE UNIFORM FOR ALL THE SERVICES CONCERNED.

PARAGRAPH 4 OF ARMY REGULATIONS 40-110, AUGUST 1, 1925, PROVIDES:

REEXAMINATION; PHYSICAL INCAPACITY.--- A. REEXAMINATION OF ALL PILOTS AND RATED OBSERVERS AND OF THOSE UNDERGOING FLYING TRAINING WILL BE MADE IN JANUARY AND JULY OF EACH YEAR. SUCH REEXAMINATION OF ANY INDIVIDUAL WILL ALSO BE MADE WHENEVER CONSIDERED NECESSARY BY THE CHIEF OF THE AIR SERVICE OR BY THE COMMANDING OFFICER TO DETERMINE HIS PHYSICAL FITNESS TO CONTINUE FLYING DUTY OR FLYING TRAINING.

B. THE FLIGHT SURGEON IS AUTHORIZED, IN SUCH CASES WHERE THE EXAMINATION WAS COMPLETE AND SATISFACTORY IN JANUARY, AND IF HE DEEMS IT ADVISABLE, TO OMIT CERTAIN PORTIONS OF THE JULY EXAMINATION AS HEREINAFTER INDICATED.

C. UPON RECOMMENDATION OF THE FLIGHT SURGEON THE COMMANDING OFFICER WILL AT ONCE RELIEVE FROM FLYING DUTY OR SUSPEND THE FLYING TRAINING OF ANY INDIVIDUAL REPORTED PHYSICALLY INCAPACITATED. WHEN THE INDIVIDUAL IS AGAIN REPORTED BY THE FLIGHT SURGEON AS PHYSICALLY FIT, THE COMMANDING OFFICER MAY, IF THE INCAPACITY WAS FOR A SLIGHT OR TEMPORARY DISABILITY, AUTHORIZE RESUMPTION OF SUCH DUTY OR TRAINING WITHOUT REFERENCE OF THE CASE TO THE CHIEF OF THE AIR SERVICE.

D. REEXAMINATION WILL ALWAYS BE MADE OF ANY OFFICER OR ENLISTED MAN ON FLYING STATUS AFTER HE HAS RETURNED FROM SICK LEAVE, AND SUCH INDIVIDUALS WILL NOT BE ALLOWED TO RESUME FLYING UNTIL THE FLIGHT SURGEON REPORTS THEM PHYSICALLY QUALIFIED.

THE SUSPENSION FROM FLYING IN THIS CASE, IT WOULD APPEAR, WAS MADE FOLLOWING REEXAMINATION TO DETERMINE PHYSICAL FITNESS AS REQUIRED BY PARAGRAPH 4, ARMY REGULATIONS 40-110, AND THE EFFECT OF SUCH SUSPENSION ON FLIGHT PAY IS THAT DURING THE PERIOD OF SUSPENSION NO FLIGHT PAY ACCRUES, AND THE FACT THAT HE WAS SICK IN LINE OF DUTY DURING A PORTION OF THE PERIOD WHILE UNDER SUSPENSION IN NO WAY AFFECTS HIS RIGHT TO PAY UNDER THE LAW AND EXECUTIVE ORDER. THE OFFICER IS ENTITLED TO PAY ONLY AFTER HIS ORDERS TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS WERE REVIVED BY THE RAISING OF THE SUSPENSION, AND THE FLIGHTS MADE DURING THE MONTH OF AUGUST, 1928, ARE APPLICABLE UNDER PARAGRAPH 10 OF THE EXECUTIVE ORDER ONLY TO PAY AFTER THE SUSPENSION WAS REMOVED.

YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.