B-106335, FEB 20, 1952

B-106335: Feb 20, 1952

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MASSACHUSETTS REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. IT APPEARS FROM THE EVIDENCE IN THE CASE THAT YOU WERE ASSIGNED TO DUTY AS U.S. THAT WHILE ON SUCH DUTY YOU WERE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS. IT IS DISCLOSED THAT YOU HAD 20.45 HOURS' FLIGHT TIME IN MAY 1950. THE CLAIM WAS DENIED ON THE BASIS (1) THAT THE INJURY WHICH INCAPACITATED YOU FOR FLYING WAS NOT A RESULT OF THE PERFORMANCE OF AVIATION DUTY AND (2) THAT SINCE YOU LAST MET FLIGHT REQUIREMENTS IN MAY 1950. "(C) THE TERM 'AVIATION ACCIDENT' SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH A MEMBER WHO IS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IS INJURED OR OTHERWISE INCAPACITATED AS THE RESULT.

B-106335, FEB 20, 1952

PRECIS-UNAVAILABLE

CAPTAIN ANDREW H. BERGESON, USN:

MASSACHUSETTS INSTITUTE OF TECHNOLOGY

PROJECT LINCOLN

P. O. BOX 390

CAMBRIDGE 39, MASSACHUSETTS

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1951, REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 24, 1951, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY INVOLVING FLYING FOR THE MONTHS OF JUNE, JULY, AND AUGUST 1950.

IT APPEARS FROM THE EVIDENCE IN THE CASE THAT YOU WERE ASSIGNED TO DUTY AS U.S. NAVAL ATTACHE AND U.S. NAVAL ATTACHE FOR AIR, BUENOS AIRES, ARGENTINA, AND TO ADDITIONAL DUTY AS U.S. NAVAL ATTACHE AND U.S. NAVAL ATTACHE FOR AIR, ASUNCION, PARAGUAY, AND THAT WHILE ON SUCH DUTY YOU WERE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS. IT IS DISCLOSED THAT YOU HAD 20.45 HOURS' FLIGHT TIME IN MAY 1950; THAT ON JUNE 10, 1950, YOU FELL AND BROKE AN ARM WHILE ATTENDING AN "OFFICIAL ARGENTINE NAVAL FUNCTION"; THAT DUE TO SUCH INJURY YOU PERFORMED NO FLIGHTS DURING THE MONTHS OF JUNE, JULY, AND AUGUST 1950; AND THAT YOU HAD 12.2 HOURS' FLIGHT TIME IN SEPTEMBER 1950. YOU CLAIM FLYING PAY FOR THE MONTHS OF JUNE, JULY, AND AUGUST UNDER THE PROVISIONS OF SECTION 10 OF EXECUTIVE ORDER 10152 OR, IN THE ALTERNATIVE, SUCH PAY FOR JULY AND AUGUST UNDER THE PROVISIONS OF SECTION 4(A)(3) OF THE SAID EXECUTIVE ORDER. THE CLAIM WAS DENIED ON THE BASIS (1) THAT THE INJURY WHICH INCAPACITATED YOU FOR FLYING WAS NOT A RESULT OF THE PERFORMANCE OF AVIATION DUTY AND (2) THAT SINCE YOU LAST MET FLIGHT REQUIREMENTS IN MAY 1950, THE THREE MONTHS' PERIOD TO MAKE UP SUCH FLIGHT REQUIREMENTS TERMINATED ON AUGUST 31, 1950, PRIOR TO THE EFFECTIVE DATE (SEPTEMBER 1, 1950) OF THE SAID SECTION 4.

EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950, F.R., VOL. 15, PART 8, AUGUST 1950, PROMULGATING REGULATIONS COVERING VARIOUS KINDS OF "HAZARDOUS DUTY", PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SECTION 1. FOR THE PURPOSES OF THESE REGULATIONS:

"(B) THE TERM 'AERIAL FLIGHT' SHALL BE CONSTRUED TO MEAN FLIGHT IN AN AIRCRAFT OR GLIDER; AND A FLIGHT SHALL BE DEEMED TO BEGIN WHEN THE AIRCRAFT OR GLIDER TAKES OFF FROM REST AT ANY POINT OF SUPPORT AND TO TERMINATE WHEN IT NEXT COMES TO A COMPLETE STOP AT A POINT OF SUPPORT.

"(C) THE TERM 'AVIATION ACCIDENT' SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH A MEMBER WHO IS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IS INJURED OR OTHERWISE INCAPACITATED AS THE RESULT, AS ATTENDED BY THE APPROPRIATE MEDICAL AUTHORITY OF THE UNIFORMED SERVICE CONCERNED, OF (1) JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OF AUXILIARY THEREOF, OR (2) PARTICIPATION IN ANY DULY AUTHORIZED AERIAL FLIGHT OR OTHER AIRCRAFT OR GLIDER OPERATIONS."

"SEC. 4. ***

"(A) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949:

"(1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT.

"(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

"(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 12 HOURS OF AERIAL FLIGHT.

"(4) FOR FRACTIONS OF A CALENDAR MONTH, THE TIME OF AERIAL FLIGHT REQUIRED SHALL BEAR THE SAME RATIO TO THE TIME REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH."

"SEC. 10. 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 SAID SECTION 10 PROVIDES THAT CERTAIN PERSONS, UNDER CERTAIN CIRCUMSTANCES, WILL BE DEEMED TO HAVE FULFILLED THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY. THE PERSONS COVERED THEREBY ARE DESCRIBED AS ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY. OF THOSE PERSONS WHO MEET THAT CONDITION, THE SECTION APPLIES ONLY TO PERSONS INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF "SUCH DUTY"; THAT IS, THE HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. YOUR HAZARDOUS DUTY WAS FLYING DUTY AND SINCE YOUR INJURY DID NOT RESULT FROM THE "PERFORMANCE OF SUCH DUTY," YOU ARE NOT ENTITLED TO THE BENEFITS OF THE SAID SECTION 10.

WITH RESPECT TO YOUR ALTERNATE CLAIM FOR FLYING PAY FOR THE MONTHS OF JULY AND AUGUST 1950, BASED ON FLIGHTS PERFORMED IN SEPTEMBER, 1950, YOU URGE THAT PAYMENT THEREOF IS AUTHORIZED UNDER THE PROVISIONS OF SECTION 4(A)(3) OF EXECUTIVE ORDER 10152. THAT PROVISION IS MADE EFFECTIVE ON SEPTEMBER 1, 1950. SEE SECTION 13 OF THE SAID EXECUTIVE ORDER. THE REGULATIONS IN EFFECT PRIOR TO SEPTEMBER 1, 1950 (SECTION 10 OF EXECUTIVE ORDER 9195, DATED JULY 7, 1942; PARAGRAPH 54088-2, VOLUME V, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL) REQUIRED THAT FLIGHT DEFICIENCIES BE MADE UP DURING THREE CONSECUTIVE CALENDAR MONTHS. THIS OFFICE CONSISTENTLY HAS HELD THAT THE THREE MONTH PERIOD COMMENCED WITH THE MONTH IN WHICH THE DEFICIENCY OR FAILURE TO QUALIFY FIRST AROSE AND ENDED AT THE END OF THE THIRD MONTH THEREAFTER. IF A FAILURE TO PERFORM FLIGHTS CONTINUED THROUGHOUT THE ENTIRE THREE MONTH PERIOD, A RIGHT TO FLYING PAY WAS NOT REVIVED UNTIL THE MONTH IN WHICH FLIGHTS ARE PERFORMED. 4 COMP.GEN. 975; 8 ID. 384, 386; 16 ID. 134; 23 ID. 950; ID. 967; 25 ID. 80; ID. 488; ID. 536; B-90485, JANUARY 26, 1950; B 99897, MARCH 30, 1951. SINCE YOU PERFORMED NO FLIGHT IN THE MONTHS OF JUNE, JULY, AND AUGUST 1950, THE POSSIBILITY OF QUALIFYING FOR FLYING PAY FOR THOSE MONTHS EXPIRED ON THE LAST DAY OF AUGUST. HENCE, UNDER THE REGULATIONS THEN IN EFFECT YOU WERE NOT ENTITLED TO FLYING PAY FOR THOSE MONTHS. THE REGULATIONS CONTAINED IN EXECUTIVE ORDER NO. 10152 MAY NOT BE VIEWED AS RETROACTIVELY EFFECTIVE SO AS TO REVIVE A RIGHT TO FLYING PAY FOR JULY AND AUGUST.

ACCORDINGLY, UPON REVIEW, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.