A-25387, JANUARY 23, 1929, 8 COMP. GEN. 384

A-25387: Jan 23, 1929

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WAS TERMINATED JULY 12. IS NOT ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 12 OF THE EXECUTIVE ORDER OF MARCH 10. TO FLYING PAY PRIOR TO REPORTING FOR DUTY AFTER SUSPENSION FROM FLYING IS REMOVED. REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUT. LIEUTENANT BEAU WAS RATED AS AIRPLANE PILOT UNDER THE PROVISIONS OF PARAGRAPH 1584 1/2. HE WAS RELIEVED BY PARAGRAPH 2. THAT HE WAS RELIEVED FROM DUTY IN THE PHILIPPINE DEPARTMENT MAY 3. THAT HE WAS TRANSFERRED TO THE FITZSIMONS GENERAL HOSPITAL. WHERE HE WAS UNDER TREATMENT TO JUNE 30. THAT ON THAT DATE LIEUTENANT BEAU'S RETURN TO FLYING DUTY WAS CONFIRMED AS OF JULY 12. IS APPARENTLY UPON THE UNDERSTANDING THAT HIS SUSPENSION FROM FLYING DUTY MAY 3.

A-25387, JANUARY 23, 1929, 8 COMP. GEN. 384

PAY - AVIATION DUTY - FLIGHTS AFTER TERMINATION OF SUSPENSION FROM FLYING AN OFFICER OF THE ARMY WHOSE SUSPENSION FROM FLYING DUE TO SICKNESS IN LINE OF DUTY EFFECTIVE MAY 3, 1927, UPON RELIEF FROM DUTY AND ORDER TO HOSPITAL FOR OBSERVATION AND TREATMENT, WAS TERMINATED JULY 12, 1928, DATE OF PASSING PHYSICAL EXAMINATION FOR FLYING, AND WHO PERFORMED FLIGHTS FROM JULY 12 TO 31, 1928, TOTALING OVER 12 HOURS IN THE AIR, IS NOT ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 12 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, TO FLYING PAY PRIOR TO REPORTING FOR DUTY AFTER SUSPENSION FROM FLYING IS REMOVED.

COMPTROLLER GENERAL MCCARL TO FIRST LIEUT. FRANK G. MARCHMAN, UNITED STATES ARMY, JANUARY 23, 1929:

THERE HAS BEEN RECEIVED YOUR NINTH INDORSEMENT OF NOVEMBER 26, 1928 (360 FAA-BEAU, L.V.), REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUT. LUCAS V. BEAU, JR., AIR CORPS (DOL), UNITED STATES ARMY, FOR FLYING PAY FROM MAY 1 TO JUNE 30, 1928, INCLUSIVE.

BY PARAGRAPH 1, PERSONNEL ORDERS NO. 7, OFFICE OF THE CHIEF OF AIR SERVICE, DATED JANUARY 9, 1920, LIEUTENANT BEAU WAS RATED AS AIRPLANE PILOT UNDER THE PROVISIONS OF PARAGRAPH 1584 1/2, ARMY REGULATIONS, EFFECTIVE OCTOBER 16, 1919. HE WAS RELIEVED BY PARAGRAPH 2, SPECIAL ORDERS, NO. 91, WAR DEPARTMENT, APRIL 19, 1927, FROM DUTY IN THE PHILIPPINE DEPARTMENT, EFFECTIVE UPON DATE OF DEPARTURE FROM MANILA; ASSIGNED TO STATION AT CRISSY FIELD, PRESIDIO OF SAN FRANCISCO, CALIF.; DIRECTED UPON ARRIVAL AT SAN FRANCISCO TO REPORT IN PERSON TO THE COMMANDING OFFICER, LETTERMAN GENERAL HOSPITAL, PRESIDIO OF SAN FRANCISCO, FOR OBSERVATION AND TREATMENT; AND UPON DISCHARGE FROM THE HOSPITAL TO REPORT IN PERSON TO THE COMMANDING OFFICER OF CRISSY FIELD FOR ASSIGNMENT TO DUTY. PARAGRAPH 37, SPECIAL ORDERS, NO. 149, WAR DEPARTMENT, DATED JUNE 26, 1928, RELIEVED HIM FROM FURTHER ASSIGNMENT AT CRISSY FIELD, EFFECTIVE UPON DISCHARGE FROM THE FITZSIMONS GENERAL HOSPITAL, DENVER, COLO., DETAILED HIM TO DUTY AS INSTRUCTOR OF AIR HOSPITAL, DENVER, COLO., DETAILED HIM TO DUTY AS INSTRUCTOR OF AIR CORPS, COLORADO NATIONAL GUARD, WITH STATION AT DENVER, COLO., AND ORDERED HIM TO PROCEED TO FORT SAM HOUSTON, TEX., AND REPORT IN PERSON TO THE COMMANDING GENERAL, EIGHTH CORPS AREA, FOR TEMPORARY DUTY FOR A PERIOD OF NOT TO EXCEED SEVEN DAYS FOR THE PURPOSE OF RECEIVING INSTRUCTIONS, AND UPON COMPLETION OF THE TEMPORARY DUTY TO PROCEED TO DENVER, COLO., AND TAKE STATION.

LIEUTENANT BEAU STATES IN LETTER OF JULY 20, 1928, THAT HE WAS RELIEVED FROM DUTY IN THE PHILIPPINE DEPARTMENT MAY 3, 1927, DUE TO SICKNESS IN LINE OF DUTY. IT HAS BEEN ASCERTAINED THAT HE ARRIVED IN THE UNITED STATES MAY 31, 1927; THAT HE WAS TRANSFERRED TO THE FITZSIMONS GENERAL HOSPITAL, DENVER, COLO., JUNE 14, 1927, WHERE HE WAS UNDER TREATMENT TO JUNE 30, 1928; THAT HE REPORTED FOR DUTY WITH THE COLORADO NATIONAL GUARD JULY 15, 1928. THE CHIEF OF THE AIR CORPS STATED IN INDORSEMENT OF AUGUST 9, 1928, THAT ON THAT DATE LIEUTENANT BEAU'S RETURN TO FLYING DUTY WAS CONFIRMED AS OF JULY 12, 1928, THE DATE UPON WHICH HE SUCCESSFULLY PASSED THE PHYSICAL EXAMINATION FOR FLYING AT BROOKS FIELD. THE VOUCHER PRESENTED BY THE OFFICER FOR FLYING PAY FROM MAY 1 TO JUNE 30, 1928, INCLUSIVE, IS APPARENTLY UPON THE UNDERSTANDING THAT HIS SUSPENSION FROM FLYING DUTY MAY 3, 1927, DUE TO SICKNESS IN LINE OF DUTY, HAVING BEEN REMOVED JULY 12, 1928, HE WOULD, PURSUANT TO THE PROVISIONS OF PARAGRAPH 2 -J, A.R. 35-1480, WHICH EMBODIES THE PROVISIONS OF PARAGRAPH 12 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, BE ENTITLED THERETO, HAVING PERFORMED FLIGHTS ACCORDING TO HIS CERTIFICATE AS FOLLOWS:

TABLE

DATE PERIOD IN THE AIR

FLIGHT NO.--- HOURS MINUTES JULY 17 ----------------------- 1-4 1 05 JULY 20 ---------------------- 5-6 1 05 JULY 21 ----- ----------------- 7 1

00 JULY 23 ---------------------- 8-10 2 20 JULY 27 --------------------- -- 11 -------- 55 JULY 28 ----------------------- 12-14 2 00 JULY 29 ----- ------------------ 14-15 2

30 JULY 30 ----------------------- 16 2 15

----------------------------------- -- TOTAL ------------------------- 16 13 10

SECTION 13A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 2 OF THE ACT OF 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: * *

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, PROVIDES 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 SUCH 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.

PARAGRAPH 10 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, PRESCRIBES AS NECESSARY TO ENTITLE TO FLYING PAY (A) DURING ONE CALENDAR MONTH 10 FLIGHTS TOTALING AT LEAST THREE HOURS, OR TO BE IN THE AIR A TOTAL OF FOUR HOURS; (B) DURING TWO CONSECUTIVE CALENDAR MONTHS, IF (A) NOT MET, 20 FLIGHTS TOTALING AT LEAST SIX HOURS, OR BE IN THE AIR A TOTAL OF EIGHT HOURS; (C) DURING THREE CONSECUTIVE CALENDAR MONTHS, IF (B) NOT MET, 30 FLIGHTS TOTALING AT LEAST NINE HOURS, OR BE IN THE AIR A TOTAL OF TWELVE HOURS. THE THREE MONTHS' PERIOD WAS FIXED AS A PERIOD OF GRACE TO GIVE AN OFFICER THE OPPORTUNITY TO COMPLY WITH THE REQUIREMENTS AND THAT PERIOD OF GRACE IS BY THE REGULATIONS FIXED AS AN ENTIRELY SO FAR AS NONCOMPLIANCE WITH THE FLYING REQUIREMENTS IS CONCERNED. THE MINIMUM REQUIREMENTS IN ORDER TO QUALIFY HAVE APPLICATION TO THE CALENDAR MONTHS AND THE THREE MONTHS' GRACE IN WHICH QUALIFICATION MAY BE MADE UP COMMENCES WITH THE MONTH IN WHICH THE DEFICIENCY OR FAILURE TO QUALIFY ARISES, 4 COMP. GEN. 975, IN THIS CASE MAY, 1927. THE OFFICER'S SUSPENSION FROM FLYING, RESULTING FROM HIS ORDERS, HAVING COMMENCED MAY 3, 1927, AND TERMINATED JULY 12, 1928, MORE THAN THE PERIOD OF A YEAR, THE FLIGHTS PERFORMED BY HIM FROM JULY 12 TO 31, 1928, CONSTITUTE UNDER THE CIRCUMSTANCES AND WITHIN THE MEANING OF THE EXECUTIVE ORDER FOR FLYING-PAY PURPOSES THE BEGINNING OF A NEW THREE MONTHS' PERIOD, AND ARE APPLICABLE ONLY TO FLYING PAY FROM DATE OF REPORTING FOR FLYING DUTY AFTER THE SUSPENSION WAS REMOVED. SEE 6 COMP. GEN. 857.

THE LANGUAGE OF THE LAST SENTENCE OF PARAGRAPH 12 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, CONTAINS AN OBVIOUS INCONSISTENCY. IT REQUIRES SUSPENSION FROM FLYING DUTY. THE PROVISO, HOWEVER, NULLIFIES THE SUSPENSION WHEN THE OFFICER OR MAN BECOMES PHYSICALLY FIT FOR FLYING. DURING THE ENTIRE PERIOD OF HIS SUSPENSION HE IS NOT PHYSICALLY FIT FOR FLYING, HE IS ACTUALLY SUSPENDED FROM FLYING DUTY; WHEN HE AGAIN BECOMES FIT FOR FLYING DUTY THE SUSPENSION IS TO BE NULLIFIED. HE THUS NEVER WAS SUSPENDED AND WAS AT ALL TIMES ASSIGNED TO FLYING DUTY. THE LITERAL READING OF THE PARAGRAPH ESTABLISHES THIS ABSURDITY. THE EXECUTIVE ORDER OF JULY 1, 1922 (SEE G.O. 30, W.D. 1922, PAGE 4), CONTAINED A PROVISION AS FOLLOWS:

* * * 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 HIS DETAIL TO DUTY INVOLVING FLYING, FROM THE DATE THE SUSPENSION FROM FLYING WAS REVOKED BY THE COMMANDING OFFICER.

UNDER THIS PROVISION AN OFFICER SICK OR INJURED IN LINE OF DUTY WHO WAS INCAPACITATED FOR TWO MONTHS WOULD LOSE FLYING PAY FOR THOSE TWO MONTHS, ALTHOUGH DURING THE THIRD MONTH HE MIGHT MAKE UP THE DEFICIENCY IN FLIGHTS DURING THE TWO PRIOR MONTHS. THE PURPOSE OF THE LANGUAGE IN THE EXECUTIVE ORDER NOW IN EFFECT, IT IS APPARENT, WAS TO WITHDRAW PERMISSION FROM THE OFFICER OR MAN TO MAKE FLIGHTS, BUT TO CONTINUE HIM ON FLYING STATUS IF HIS PHYSICAL CONDITION PERMITTED RESUMPTION OF FLIGHTS WITHIN THE THREE MONTHS' PERIOD, THUS ENTITLING HIM TO FLYING PAY FOR THE ENTIRE THREE MONTHS IF WITHIN THAT TIME HE MAKES THE FLIGHTS REQUIRED ENTITLING HIM TO PAY. THIS IS THE INTERPRETATION PLACED UPON THE ORDER BY THE NAVY DEPARTMENT. SEE 6 COMP. GEN. 857. WHERE THE SUSPENSION FROM FLYING EXCEEDS THREE MONTHS, THE OFFICER OR MAN, UNDER THE EXECUTIVE ORDER, HAS BEEN SUSPENDED FROM FLYING DUTY, AND THERE CAN BE NO RETROACTIVE NULLIFICATION OF A SUSPENSION VALID WHEN MADE AND VALID DURING THE ENTIRE PERIOD IT WAS IN EFFECT. IN SUCH A CASE THE OFFICER OR MAN IS ENTITLED TO FLYING PAY ONLY FROM DATE OF REPORTING FOR DUTY AFTER THE SUSPENSION FROM FLYING DUTY HAS BEEN REMOVED.

YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.