B-101391, MAY 18, 1951, 30 COMP. GEN. 463

B-101391, MAY 18, 1951, 30 COMP. GEN. 463

PAY - AVIATION DUTY - AFTER INCAPACITATING AVIATION ACCIDENT A NAVAL RESERVE OFFICER WHO, WHILE ENGAGED IN TRAINING DUTY UNDER FLIGHT ORDERS OF LIMITED DURATION, BECAME INCAPACITATED BY REASON OF A AVIATION ACCIDENT IS NOT ENTITLED TO FLIGHT PAY FOR THREE MONTHS FROM SUCH ACCIDENT, UNDER SECTION 10 OF EXECUTIVE ORDER 10152 OF AUGUST 17, 1950, WHICH PERMITS THE CONTINUANCE OF FLYING PAY IF OTHERWISE ELIGIBLE FOR ACTIVE-DUTY PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1949, THERE BEING NO INDICATION THAT AVIATION PAY BEYOND THE TERMINATION DATE OF HIS ORDERS WAS CONTEMPLATED OR THAT HE WOULD HAVE BEEN CONTINUED IN A FLYING STATUS BEYOND SUCH TERMINATION DATE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, MAY 18, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 8, 1951, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER LIEUTENANT (JG) JOHN M. WEBB, UNITED STATES NAVAL RESERVE, IS ENTITLED TO AVIATION PAY FOR THE MONTHS OF OCTOBER, NOVEMBER, AND DECEMBER, 1950.

IN THE EVENT THAT IT IS HELD THAT LIEUTENANT WEBB IS ENTITLED TO SUCH PAY, DECISION ALSO IS REQUESTED AS TO WHETHER AN OFFICER, INJURED IN AN AVIATION ACCIDENT WHILE IN A DRILL PAY STATUS, WOULD BE ENTITLED TO CREDIT OF FLIGHT PAY FOR THREE MONTHS FROM THE DATE OF SUCH ACCIDENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 10 OF EXECUTIVE ORDER 10152 OF AUGUST 17, 1950, IF OTHERWISE ELIGIBLE FOR ACTIVE DUTY PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1949.

IT IS STATED THAT LIEUTENANT WEBB WAS INJURED IN AN AIRCRAFT ACCIDENT ON SEPTEMBER 21, 1950, WHILE ON TRAINING DUTY, AND THAT THERE IS IN EFFECT FOR HIM A " DISABILITY" PAY RECORD AS AUTHORIZED BY THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 81ST CONGRESS, AND JOINT LETTER 49-949, NAVY DEPARTMENT BULLETIN, JULY-DECEMBER 1949, PROMULGATED PURSUANT THERETO. THE FILE CONTAINS A CERTIFIED TRUE COPY OF A CERTIFICATE EXECUTED BY CAPTAIN J. R. MCINTOSH, MC, USNR, TO THE EFFECT THAT LIEUTENANT WEBB WAS INCAPACITATED BY INJURY RECEIVED IN LINE OF DUTY, NOT DUE TO HIS OWN MISCONDUCT, IN AN AIRCRAFT ACCIDENT ON SEPTEMBER 21, 1950.

THE PERIOD FOR WHICH LIEUTENANT WEBB WAS ORDERED TO TRAINING DUTY IS NOT STATED; NO DIRECT INFORMATION IS GIVEN AS TO WHETHER HE WAS UNDER FLIGHT ORDERS WHEN INJURED AND THERE IS NO SHOWING AS TO THE AGGREGATE DURATION OF ALL FLIGHTS PERFORMED BY HIM DURING THE PERIOD OF TRAINING DUTY UP TO THE TIME OF SUCH INJURY. ALL SUCH FACTS ARE MATERIAL IN DETERMINING HIS RIGHTS TO PAY AND ALLOWANCES INCIDENT TO SUCH TRAINING DUTY. HOWEVER, IN THE ABSENCE OF SUCH INFORMATION IT WILL BE ASSUMED, IN THIS CASE, THAT THE OFFICER WAS ORDERED TO TRAINING DUTY FOR 15 DAYS, THAT HE WAS IN RECEIPT OF COMPETENT ORDERS REQUIRING HIM TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS IN CONNECTION WITH SUCH DUTY, AND THAT HE HAD MET FLIGHT REQUIREMENTS FOR 15 DAYS WHEN INJURED.

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED BY SECTION 1 OF THE ACT OF JUNE 20, 1949, PUBLIC LAW 108, 63 STAT. 201, PROVIDES, IN PERTINENT PART, THAT:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE WHO- -

(2) IF CALLED OR ORDERED BY THE FEDERAL GOVERNMENT TO ACTIVE NAVAL OR MILITARY SERVICE OR TO PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING FOR ANY PERIOD OF TIME, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED; SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE SERVICE DURING SUCH PERIOD, AND THEY * * * SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME * * * PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS * * *.

IN 29 COMP. GEN. 509, CITED IN YOUR LETTER, IT WAS HELD THAT UNDER THE ABOVE PROVISIONS OF LAW AN OFFICER OF THE MARINE CORPS RESERVE--- INJURED IN AN AIRPLANE ACCIDENT WHILE SERVING UNDER ORDERS DIRECTING ACTIVE DUTY FOR TRAINING FOR 15 DAYS--- WAS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES BEYOND THE TERMINATION DATE OF SAID ORDERS WHILE HOSPITALIZED AND WHILE AWAITING ACTION ON HIS RETIREMENT PROCEEDINGS. THE QUESTION OF THE PROPRIETY OF PAYMENT OF AVIATION PAY TO THE OFFICER FOR ANY PERIOD WAS NOT PRESENTED OR CONSIDERED.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, 81ST CONGRESS, 63 STAT. 810, PROVIDES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, VARIOUS RATES OF INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS, INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS.

SECTION 10 OF THE EXECUTIVE ORDER 10152, AUGUST 17, 1950, ISSUED PURSUANT TO THE ABOVE SECTION 204, IS AS FOLLOWS:

ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.

THE ABOVE SECTION PROVIDES, INTER ALIA, THAT AN INDIVIDUAL UNDER FLIGHT ORDERS, INCAPACITATED FOR FLYING AS THE RESULT OF AN AVIATION ACCIDENT,"SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS," ETC. SECTION 4 OF THE SAME EXECUTIVE ORDER PRESCRIBES MINIMUM FLIGHT REQUIREMENTS WHICH MUST BE MET TO ENTITLE AN INDIVIDUAL TO AVIATION PAY. APPARENTLY, SECTION 10 IS INTENDED TO PROVIDE THAT AN INDIVIDUAL INCAPACITATED BY AN AVIATION ACCIDENT SHALL BE DEEMED TO HAVE MET THE FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS, ETC. IN THAT RESPECT THE SAID SECTION DOES NOT SEEM TO BE MATERIALLY DIFFERENT FROM PARAGRAPH 10 OF EXECUTIVE ORDER 9195, DATED JULY 7, 1942, ISSUED TO CARRY OUT THE PROVISIONS OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, THE LAW IN EFFECT PRIOR TO THE CAREER COMPENSATION ACT OF 1949. THAT PARAGRAPH OF EXECUTIVE ORDER 9195 PRESCRIBED FLIGHT REQUIREMENTS, AND PROVIDED, IN PART, THAT AN INDIVIDUAL UNDER FLIGHT ORDERS, INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT, SHOULD NOT BE REQUIRED TO PERFORM SUCH FLIGHTS DURING HIS INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT. UNDER THOSE PROVISIONS IT WAS HELD THAT AN ENLISTED MAN OF THE ARMY, INCAPACITATED FOR FLYING BY AN AVIATION ACCIDENT SUSTAINED WHILE UNDER FLIGHT ORDERS OF LIMITED DURATION, WAS NOT ENTITLED TO AVIATION PAY BEYOND THE TERMINATION DATE OF SUCH ORDERS, IN THE ABSENCE OF EVIDENCE TO SHOW THAT BUT FOR THE ACCIDENT HE WOULD HAVE BEEN CONTINUED IN A FLYING STATUS BEYOND SUCH TERMINATION DATE. 23 COMP. GEN. 267, DIFFERENTLY PHRASED, IT WAS HELD THAT THE PROVISIONS IN EXECUTIVE ORDER 9195 AUTHORIZING AVIATION PAY FOR A LIMITED PERIOD BEYOND THE DATE OF AN AVIATION ACCIDENT WERE NOT INTENDED TO GRANT A MERE BONUS OR COMPENSATION FOR INJURY, BUT WERE INTENDED TO INSURE THAT, FOR SUCH PERIOD, AN INDIVIDUAL WOULD NOT BE DEPRIVED OF THE AVIATION PAY WHICH HE NORMALLY WOULD HAVE RECEIVED HAD THE ACCIDENT NOT OCCURRED. LIKE CONCLUSION IS REQUIRED UNDER THE PROVISIONS OF SECTION 10 OF EXECUTIVE ORDER 10152. HENCE, IT MUST FOLLOW THAT LIEUTENANT WEBB IS ENTITLED TO AVIATION PAY FOR THE ORDERED PERIOD OF HIS TRAINING DUTY ONLY, THERE BEING NO INDICATION THAT FLYING DUTY BEYOND THAT PERIOD WAS CONTEMPLATED.

IN VIEW OF THE ABOVE CONCLUSION, AN ANSWER TO YOUR SECOND QUESTION IS NOT REQUIRED.