A-79137, AUGUST 6, 1936, 16 COMP. GEN. 134

A-79137: Aug 6, 1936

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PAY - AVIATION DUTY - ARMY OFFICER INJURED WHILE FLYING THE CALENDAR MONTH IS. DURING WHICH FLIGHTS ARE NOT REQUIRED OF AN ARMY OFFICER. COMMENCES WITH THE FIRST OF THE MONTH FOLLOWING THE ACCIDENT WHERE PRIOR TO THE ACCIDENT THE OFFICER HAD COMPLETED SUFFICIENT FLIGHTS TO QUALIFY FOR ADDITIONAL PAY FOR FLYING FOR THE MONTH IN WHICH HE WAS INJURED. WHERE THE FLIGHTS REQUIRED BY EXECUTIVE ORDER ARE MADE AT ANY TIME DURING THE THREE SUCCESSIVE CALENDAR MONTHS NEXT FOLLOWING THE THREE MONTHS' PERIOD DURING WHICH NO FLIGHTS WERE REQUIRED. ADDITIONAL PAY FOR FLYING FOR THE THREE MONTHS' PERIOD IS AUTHORIZED. FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON VOUCHERS TRANSMITTED THEREWITH STATED IN FAVOR OF SECOND LT.

A-79137, AUGUST 6, 1936, 16 COMP. GEN. 134

PAY - AVIATION DUTY - ARMY OFFICER INJURED WHILE FLYING THE CALENDAR MONTH IS, BY PARAGRAPH 10 OF THE EXECUTIVE ORDER OF JUNE 27, 1932, CONSTITUTED THE UNIT FOR DETERMINING THE QUALIFICATION OF AN ARMY OFFICER FOR ADDITIONAL PAY FOR FLYING. THE THREE MONTHS' PERIOD, STIPULATED BY EXECUTIVE ORDER ISSUED PURSUANT TO LAW, DURING WHICH FLIGHTS ARE NOT REQUIRED OF AN ARMY OFFICER, INCAPACITATED FOR FLYING DUTY BY REASON OF AN AVIATION ACCIDENT WHILE MAKING AN AUTHORIZED FLIGHT, TO ENTITLE HIM TO ADDITIONAL PAY FOR FLYING, COMMENCES WITH THE FIRST OF THE MONTH FOLLOWING THE ACCIDENT WHERE PRIOR TO THE ACCIDENT THE OFFICER HAD COMPLETED SUFFICIENT FLIGHTS TO QUALIFY FOR ADDITIONAL PAY FOR FLYING FOR THE MONTH IN WHICH HE WAS INJURED. WHERE THE FLIGHTS REQUIRED BY EXECUTIVE ORDER ARE MADE AT ANY TIME DURING THE THREE SUCCESSIVE CALENDAR MONTHS NEXT FOLLOWING THE THREE MONTHS' PERIOD DURING WHICH NO FLIGHTS WERE REQUIRED, ADDITIONAL PAY FOR FLYING FOR THE THREE MONTHS' PERIOD IS AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJOR W. M. DIXON, UNITED STATES ARMY, AUGUST 6, 1936:

THERE HAS BEEN RECEIVED YOUR REQUEST OF JULY 6, 1936, FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON VOUCHERS TRANSMITTED THEREWITH STATED IN FAVOR OF SECOND LT. H. H. UPHAM, AIR CORPS, U.S. ARMY, IN THE AMOUNT OF $141.67, FOR ADDITIONAL PAY FOR FLYING FROM FEBRUARY 23, 1936, TO APRIL 30, 1936, AND IN THE AMOUNT OF $62.50 FOR THE PERIOD MAY 1 TO 31, 1936.

A CERTIFICATE APPENDED TO THE FIRST DESCRIBED VOUCHER SIGNED BY COL. J. H. PIRIE, A.C., IS TO THE EFFECT THAT LIEUTENANT UPHAM WAS FOUND BY A BOARD OF OFFICERS CONVENED AT MARCH FIELD, CALIFORNIA, TO HAVE INCURRED A PERSONAL INJURY ON NOVEMBER 23, 1935, IN LINE OF DUTY AND NOT THE RESULT OF HIS OWN MISCONDUCT, WHILE ENGAGED IN AN AERIAL FLIGHT IN A GOVERNMENT- OWNED AIRPLANE, WHICH INCAPACITATED HIM FOR FLYING DUTY TO FEBRUARY 24, 1936. ON MAY 1, 1936, IT WAS CERTIFIED BY THE FLIGHT SURGEON, CRISSY FIELD, PRESIDIO OF SAN FRANCISCO, CALIF., THAT SECOND LT. HUDSON H. UPHAM, A.C., WAS PHYSICALLY AND MENTALLY QUALIFIED FOR DUTY INVOLVING FLYING, AND THIS WAS APPROVED "WITH WAIVER" BY ORDER OF THE CHIEF OF AIR CORPS MAY 12, 1936. DURING NOVEMBER 1935, PRIOR TO HIS INJURY, HE PERFORMED FOUR FLIGHTS TOTALING FIVE HOURS AND TWENTY MINUTES. HE PERFORMED NO FLIGHTS AFTER BEING INJURED UNTIL MAY 16, 1936, AND THEREAFTER DURING MAY 1936 HE PERFORMED 34 FLIGHTS, TOTALING 17 HOURS AND 10 MINUTES.

PARAGRAPH 10 OF EXECUTIVE ORDER NO. 5865, DATED JUNE 27, 1932, PROMULGATED FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF 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:

FOR PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, * * * WHO ARE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, THE FOLLOWING REQUIREMENTS ARE PRESCRIBED: PROVIDED, THAT ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF COMPETENT AUTHORITY AND WHO AS A RESULT OF SUCH ORDERS HAS PARTICIPATED REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID CCIDENT: (A) DURING ONE CALENDAR MONTH. 10 OR MORE FLIGHTS TOTALING AT

LEAST 3 HOURS, OR IN LIEU

THEREOF TO BE IN THE AIR A TOTAL

OF AT LEAST 4 HOURS. (B) DURING 2 CONSECUTIVE CALENDAR

20 OR MORE FLIGHTS TOTALING AT

MONTHS, WHEN THE REQUIREMENTS LEAST 6 HOURS, OR IN LIEU

OF SUBPARAGRAPH (A) ABOVE HAVE THEREOF TO BE IN THE AIR A TOTAL

NOT BEEN MET. OF AT LEAST 8 HOURS. (C) DURING 3 CONSECUTIVE CALENDAR

30 OR MORE FLIGHTS TOTALING AT

MONTHS, WHEN THE REQUIREMENTS LEAST 9 HOURS, OR IN LIEU

OF SUBPARAGRAPH (B) ABOVE HAVE THEREOF TO BE IN THE AIR A TOTAL

NOT BEEN MET. OF AT LEAST 12 HOURS.

(D) FOR FRACTIONS OF A CALENDAR MONTH THE NUMBER OF AERIAL FLIGHTS AND THE TIME IN THE AIR REQUIRED SHALL BEAR THE SAME RATIO TO THE NUMBER OF FLIGHTS AND THE TIME IN THE AIR REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

(E) FOR FRACTIONS OF TWO CONSECUTIVE CALENDAR MONTHS THE PERIOD IN QUESTION SHALL BE CONSIDERED AS A UNIT AND THE NUMBER OF AERIAL FLIGHTS AND TIME IN THE AIR REQUIRED SHALL BEAR THE SAME RATIO TO THE NUMBER OF AERIAL FLIGHTS AND TIME IN THE AIR REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

NOTE: THE ABOVE REQUIREMENTS FOR ANY PARTICULAR PERIOD MAY BE MET AT ANY TIME DURING SUCH PERIOD.

THE CALENDAR MONTH IS CONSTITUTED THE UNIT FOR DETERMINING THE QUALIFICATION OF AN OFFICER FOR ADDITIONAL FLYING PAY, EXCEPT AT THE BEGINNING AND TERMINATION OF A FLYING STATUS. THE PRESCRIBED REQUIREMENTS MAY BE MET AT ANY TIME DURING A PARTICULAR PERIOD. THE OFFICER PRIOR TO THE ACCIDENT NOVEMBER 23, 1935, HAD PERFORMED SUFFICIENT FLYING TO ENTITLE HIM TO FLYING PAY FOR NOVEMBER 1935, AND IT WAS NOT NECESSARY TO EXCUSE HIM FROM THE PERFORMANCE OF ANY REQUIRED FLIGHTS TO ENTITLE HIM TO ADDITIONAL FLYING PAY FOR THAT MONTH. HE IS, HOWEVER, UNDER THE PROVISIONS OF THE REGULATIONS, AS CONSTRUED BY THE COURT OF CLAIMS IN DENNETT V. UNITED STATES, 78 CT.CLS. 258, AND FOLLOWED IN A-55383, MAY 14, 1934, EXCUSED FROM THE PRESCRIBED PERFORMANCE OF FLIGHTS "FOR A PERIOD NOT TO EXCEED 3 MONTHS" FOLLOWING THE DATE OF THE ACCIDENT. HE IS, THEREFORE, ENTITLED TO ADDITIONAL FLYING PAY WITHOUT PERFORMING ANY FLYING FOR THE INDICATED UNIT OF "3 CONSECUTIVE CALENDAR MONTHS," OR FOR DECEMBER 1935, JANUARY AND FEBRUARY 1936.

PARAGRAPH 2 OF THE CITED EXECUTIVE ORDER PROVIDES THAT EACH OFFICER WHO IS A QUALIFIED AIRCRAFT PILOT OR 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, SHALL BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND THAT ORDERS TO THAT EFFECT "SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH COMMISSION, ASSIGNMENT, OR ATTACHMENT, EXCEPT AS HEREINAFTER PROVIDED IN PARAGRAPH 12.' PARAGRAPH 12 PROVIDES THAT A COMMANDING OFFICER SHALL SUSPEND FROM FLYING ANY OFFICER (ETC.) UNDER HIS COMMAND WHO, IN HIS OPINION, IS UNFIT FOR FLYING "EXCEPT AS A RESULT OF AN AVIATION CIDENT.'

MARCH 1936, WAS THE BEGINNING OF A NEW 3 MONTHS' PERIOD, 4 COMP. GEN.975, AND NO FLIGHTS WERE PERFORMED DURING THAT MONTH NOR DURING THE SUCCEEDING MONTH OF APRIL 1936, BUT THE DEFICIENCY FOR THESE MONTHS WAS MADE UP IN MAY 1936, DURING WHICH MONTH THE OFFICER EXCEEDED THE MINIMUM REQUIREMENT OF 30 FLIGHTS TOTALING AT LEAST 9 HOURS IN THE AIR. YOU ARE ACCORDINGLY ADVISED THAT IF THE OFFICER HAS NOT BEEN PAID FLYING PAY FOR ANY PART OF THE PERIOD FROM FEBRUARY 23 TO MAY 31, 1936, COVERED BY HIS CLAIM, AND IF THEY ARE OTHERWISE CORRECT, PAYMENT MAY BE MADE ON THE VOUCHERS WHICH ARE RETURNED.