A-31611, MAY 23, 1930, 9 COMP. GEN. 487

A-31611: May 23, 1930

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IS NOT ENTITLED TO FLIGHT PAY FOR SUCH MONTHS DURING WHICH THE FLIGHT REQUIREMENTS WERE NOT MET. 1930: THERE IS FOR CONSIDERATION THE QUESTION AS TO WHETHER LIEUT. IS ENTITLED TO AVIATION PAY FOR THE MONTHS OF MAY. THE PAYMENTS SO MADE WERE $156.25 FOR MAY. LIEUTENANT COMMANDER THOMAS WAS ASSIGNED AS ASSISTANT NAVAL ATTACHE TO THE AMERICAN EMBASSIES AT LONDON. FLIGHT REQUIREMENTS WERE LAST MET THROUGH THE MONTH OF AUGUST. THERE IS NO EVIDENCE OF ANY FLIGHTS HAVING BEEN MADE FROM SEPTEMBER. ARE AS FOLLOWS: PERIOD IN AIR NUMBER OF FLIGHTS HOURS MINUTES 1928 SEPTEMBER. RESULTS IN A SUSPENSION OF FLIGHT PAY FOR THE PERIOD BETWEEN THE FIRST DAY OF THE MONTH SUCCEEDING THAT IN WHICH THE FLIGHT REQUIREMENTS WERE LAST MET AND THE LAST DAY OF THE MONTH PRECEDING THAT IN WHICH THE FLIGHT REQUIREMENTS ARE AGAIN MET.

A-31611, MAY 23, 1930, 9 COMP. GEN. 487

PAY - AVIATION DUTY - NAVY OFFICER AN OFFICER OF THE NAVY REQUIRED BY ORDERS OF COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, WHO FAILS TO MEET THE FLIGHT REQUIREMENTS PRESCRIBED IN PARAGRAPH 10 OF THE EXECUTIVE ORDER OR MARCH 10, 1927, FOR FOUR OR MORE CONSECUTIVE MONTHS, IS NOT ENTITLED TO FLIGHT PAY FOR SUCH MONTHS DURING WHICH THE FLIGHT REQUIREMENTS WERE NOT MET. UNDER SUCH CIRCUMSTANCES A NEW PERIOD DOES NOT COMMENCE WITH THE FOURTH MONTH AND THE FLIGHT REQUIREMENTS FOR THAT MONTH MAY NOT BE MET IN IN THE SECOND OR THIRD MONTH THEREAFTER.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 23, 1930:

THERE IS FOR CONSIDERATION THE QUESTION AS TO WHETHER LIEUT. COMMANDER WILLIAM D. THOMAS, UNITED STATES NAVY, IS ENTITLED TO AVIATION PAY FOR THE MONTHS OF MAY, JUNE, AND JULY, 1929, AS CREDITED AND PAID TO HIM ON THE ROLLS OF CAPT. GEO. W. STEELE, UNITED STATES NAVY, UNITED STATES NAVAL ATTACHE, PARIS, FRANCE, FIRST QUARTER, 1930. THE PAYMENTS SO MADE WERE $156.25 FOR MAY, $158.12 FOR JUNE, AND $162.50 FOR JULY.

BY ORDERS DATED AUGUST 15, 1928, LIEUTENANT COMMANDER THOMAS WAS ASSIGNED AS ASSISTANT NAVAL ATTACHE TO THE AMERICAN EMBASSIES AT LONDON, ENGLAND; PARIS, FRANCE; BERLIN, GERMAN; AND THE HAGUE, THE NETHERLANDS, FOR DUTY INVOLVING FLYING, IT BEING STATED THEREIN:

9. THESE ORDERS CONSTITUTE YOUR ASSIGNMENT TO DUTY IN A PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY AND YOUR EXISTING DETAIL TO DUTY INVOLVING FLYING CONTINUES IN EFFECT.

PRIOR TO THE PERIOD IN QUESTION, FLIGHT REQUIREMENTS WERE LAST MET THROUGH THE MONTH OF AUGUST, 1928. THERE IS NO EVIDENCE OF ANY FLIGHTS HAVING BEEN MADE FROM SEPTEMBER, 1928, TO APRIL, 1929, INCLUSIVE. ACCORDING TO THE EVIDENCE, FLIGHTS MADE SINCE AUGUST, 1928, ARE AS FOLLOWS:

PERIOD IN AIR

NUMBER OF

FLIGHTS

HOURS MINUTES

1928 SEPTEMBER-------------------- 0 0 0 OCTOBER---------------------- 0 0 0 NOVEMBER---------- ---------- 0

0 0 DECEMBER--------------------- 0 00

1929 JANUARY---------------------- 0 0 0 FEBRUARY--------------------- 0 0 0 MARCH---------- ------------- 0

0 0 APRIL------------------------ 0 0 0 MAY-------------------------- 1 1 45 JUNE------- ----------------- 0

0 0 JULY------------------------- 9 11 12

PARAGRAPH 10 OF THE EXECUTIVE ORDER OF MARCH 10, 1927, ISSUED IN PURSUANCE OF SECTION 20 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, 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.

PAY BILL INSTRUCTIONS, APPROVED BY DECISION OF JUNE 29, 1927, 6 COMP. GEN. 851, PROVIDE:

F-7. FAILURE TO PERFORM THE REQUISITE FLIGHTS FOR ANY REASON, EXCEPT SICKNESS OR INJURY INCURRED IN LINE OF DUTY, RESULTS IN A SUSPENSION OF FLIGHT PAY FOR THE PERIOD BETWEEN THE FIRST DAY OF THE MONTH SUCCEEDING THAT IN WHICH THE FLIGHT REQUIREMENTS WERE LAST MET AND THE LAST DAY OF THE MONTH PRECEDING THAT IN WHICH THE FLIGHT REQUIREMENTS ARE AGAIN MET. THE PRACTICAL EFFECT ON FLIGHT PAY IS THAT IT IS LOST FOR THE ENTIRE PERIOD DURING WHICH FLIGHT REQUIREMENTS ARE NOT MET. THE THREE MONTHS'PERIOD ALLOWED FOR COMPLYING WITH THE FLIGHT REQUIREMENTS IS INTENDED TO COVER LEAVE, TEMPORARY DUTY AWAY FROM FLYING FACILITIES, ADVERSE WEATHER CONDITIONS PREVENTING FLYING, ETC.

EXAMPLES

ORDERS REQUIRING AERIAL FLIGHTS EFFECTIVE JULY 21:

CASE 7

FLIGHTS IN JULY --------------------------------------------- 1

FLIGHTS IN AUGUST ------------------------------------------- 4

FLIGHTS IN SEPTEMBER ---------------------------------------- 9

FLIGHTS IN OCTOBER ------------------------------------------ 8

FLIGHTS IN NOVEMBER ----------------------------------------- 14

TOTAL -------------------------------------------------- 36

CREDIT FLIGHT PAY FOR OCTOBER AND NOVEMBER ONLY. FLIGHT PAY FOR JULY, AUGUST, AND SEPTEMBER HAVE LAPSED BECAUSE FLIGHT REQUIREMENTS WERE NOT MET WITHIN THE THREE MONTHS' PERIOD; I.E., PRIOR TO SEPTEMBER 30. EVERY MONTH IN WHICH THERE IS A FAILURE OF FLIGHT REQUIREMENTS DOES NOT COMMENCE THE RUNNING OF A NEW THREE-MONTH PERIOD. (COMP. DEC. 22 MAY, 1925.) FLIGHT REQUIREMENTS FOR OCTOBER WERE MET IN NOVEMBER, AS OCTOBER WAS BEGINNING OF A NEW THREE MONTHS' PERIOD.

NOTE.--- THE ABOVE EXAMPLES ARE WORKED OUT ON THE BASIS OF FLIGHTS; THE SAME PRINCIPLES APPLYING TO THE ALTERNATE REQUISITE OF HOURS IN THE AIR.

THE EXAMPLE THUS GIVEN APPEARS TO BE BASED ON THE THEORY THAT WHERE THE FLIGHT REQUIREMENTS ARE NOT MET FOR THREE CONSECUTIVE MONTHS, AND THERE IS ALSO A FAILURE IN THE FOURTH MONTH, THIS FOURTH MONTH COMMENCES THE RUNNING OF A NEW 3-MONTH PERIOD IN WITH THE DEFICIENCY MAY BE MET EITHER IN THE SECOND OR THIRD MONTH THEREAFTER. EXTENDING THIS PRINCIPLE TO A CASE WHERE THE FLIGHT REQUIREMENTS WERE NOT MET OVER AN EXTENDED PERIOD, EACH PERIOD OF THREE MONTHS WOULD CONSTITUTE A 3 MONTH PERIOD WITHIN THE MEANING OF THE EXECUTIVE ORDER, AND THAT WHEN THE AVIATOR FINALLY QUALIFIED, THE EXCESS FLIGHTS PERFORMED IN THAT MONTH COULD BE APPLIED TO THE PRIOR MONTH OR MONTHS IN THAT PARTICULAR PERIOD. APPLYING THIS PRINCIPLE TO THE FACTS IN THE CASE OF LIEUTENANT COMMANDER THOMAS WHERE THE FLIGHT REQUIREMENTS WERE MET THROUGH AUGUST, 1928, AND WERE NOT AGAIN MET UNTIL JULY, 1929, THE INTERVENING PERIOD WOULD BE DIVIDED INTO 3-MONTH PERIODS, AS FOLLOWS: SEPTEMBER, OCTOBER, AND NOVEMBER, WOULD CONSTITUTE ONE PERIOD; DECEMBER, JANUARY, AND FEBRUARY ANOTHER PERIOD; MARCH, APRIL AND MAY ANOTHER PERIOD, AND JUNE WOULD COMMENCE ANOTHER PERIOD. HAVING MET THE JUNE REQUIREMENTS IN JULY HE WOULD BE ENTITLED TO FLIGHT PAY FOR JUNE AND JULY, BUT NOT FOR MAY AS THAT MONTH WAS IN THE PRIOR PERIOD. APPARENTLY LIEUTENANT COMMANDER THOMAS WAS PAID FLIGHT PAY FOR MAY, JUNE, AND JULY IN AN ATTEMPT TO APPLY THE ABOVE PRINCIPLE TO THE FACTS IN HIS CASE. HOWEVER, AS THE PAYMENT OF FLIGHT PAY FOR MAY WAS NOT IN ACCORDANCE WITH THE ABOVE PRINCIPLE, IT WILL BE DISALLOWED.

THE CORRECTNESS OF THE PRINCIPLE ILLUSTRATED IN "CASE 7" OF THE PAY BILL INSTRUCTIONS, QUOTED ABOVE, WILL BE CONSIDERED. IT WILL BE NOTED THAT BY PARAGRAPH 10 OF THE EXECUTIVE ORDER THE REQUIREMENTS ARE BASED ON THE CALENDAR MONTH, AND IF THE REQUIREMENTS FOR ONE CALENDAR MONTH ARE NOT MET, A 2-MONTH PERIOD IS PROVIDED IF THE REQUIREMENTS FOR THE 2-MONTH PERIOD ARE NOT MET, A 3-MONTH PERIOD IS PROVIDED. THESE ARE PERIODS OF GRACE GIVEN TO THE AVIATOR TO AFFORD HIM OPPORTUNITY TO QUALIFY WHEN BY REASON OF TEMPORARY CONDITIONS HE CAN NOT MEET THE REQUIREMENTS FOR ONE OR TWO CONSECUTIVE MONTHS, AND THE THE 2-MONTH OR 3-MONTH PERIOD COMMENCES WITH THE FIRST MONTH IN WHICH THE FAILURE TO QUALIFY ARISES. SEE 4 COMP. GEN. 975.

THE 3-MONTH PERIOD IS AUTHORIZED ONLY FOR THE PURPOSE OF ENABLING THE AVIATOR TO MEET THE REQUIREMENTS FOR A PARTICULAR THREE MONTHS BEGINNING WITH THE MONTH IN WHICH HE FAILS TO QUALIFY. IF HE FAILS TO QUALIFY FOR THE 3-MONTH PERIOD, THE PURPOSE OF FIXING SUCH A PERIOD FAILS, AND IT IS NO LONGER TO BE CONSIDERED AS AN ENTIRETY, IT IS THEN MERELY A PERIOD OF TIME DURING WHICH FLIGHT REQUIREMENTS WERE NOT MET. IN OTHER WORDS THE 3- MONTH PERIOD AS AN ENTIRETY IS MERELY TENTATIVE AND IS DEPENDENT UPON THE REQUIREMENTS FOR SUCH PERIOD BEING MET. IN THE EXAMPLE GIVEN IN THE PAY BILL INSTRUCTIONS, THE REQUIREMENTS FOR THE 3-MONTH PERIOD, JULY TO SEPTEMBER, AS AN ENTIRETY NOT HAVING BEEN MET, AND THE REQUIREMENTS FOR SEPTEMBER ALONE NOT HAVING BEEN MET A NEW PERIOD DOES NOT COMMENCE WITH OCTOBER BY REASON OF THE FAILURE TO MEET THE REQUIREMENTS FOR THAT MONTH, AS IT IS NOT THE FIRST MONTH THE FAILURE OCCURRED BUT THE FOURTH CONSECUTIVE MONTH.

"CASE 7" IN SO FAR AS IT HAS BEEN CONSIDERED AUTHORITY FOR THE PROPOSITION THAT A NEW PERIOD COMMENCES WITH THE FOURTH MONTH OF AN EXTENDED PERIOD OF FAILURE TO MEET FLIGHT REQUIREMENTS WILL NOT BE FOLLOWED WITH RESPECT TO PAYMENTS MADE FOR ANY PERIOD AFTER MAY 31, 1930, AND THE PAY BILL INSTRUCTIONS IN REGARD THERETO SHOULD BE AMENDED TO CONFORM TO THE VIEWS HEREIN EXPRESSED.