B-114461, MAY 22, 1953, 32 COMP. GEN. 530

B-114461, MAY 22, 1953, 32 COMP. GEN. 530

PAY - ADDITIONAL - AVIATION DUTY - INJURY NOT RESULT OF AVIATION ACCIDENT - GROUND RESCUE OPERATIONS AN OFFICER INCAPACITATED FOR FLYING DUTY AS A RESULT OF INJURIES RECEIVED WHILE PARTICIPATING IN GROUND RESCUE OPERATIONS INCIDENT TO A PLANE CRASH WHICH HAD NO RELATION TO HIS FLYING DUTY ASSIGNMENT MAY NOT BE CONSIDERED AS HAVING RECEIVED HIS INJURIES AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1 OF EXECUTIVE ORDER NO. 10152, SO AS TO BE ENTITLED, UNDER SECTION 10 OF THE ORDER, TO FLIGHT PAY FOR A THREE MONTH PERIOD FOLLOWING INJURY.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. D. O. OTTEN, UNITED STATES AIR FORCE, MAY 22, 1953:

BY LETTER DATED MARCH 27, 1953, THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED TO THIS OFFICE YOUR LETTER OF JANUARY 16, 1953, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER MAJOR PAUL G. GRENIER, AO 433001, USAF, MAY BE CREDITED WITH AVIATION PAY FOR THE PERIOD FEBRUARY 1 TO APRIL 30, 1952.

IT APPEARS FROM THE STATEMENT OF MAJOR GRENIER THAT ON JANUARY 19, 1952, AN AIRPLANE ENGAGED IN A TEST FLIGHT CRASHED INTO THE REHABILITATION CENTER AT MATHER AIR FORCE BASE; THAT AT THAT TIME MAJOR GRENIER WAS ACROSS THE STREET IN ANOTHER BUILDING DISCUSSING ADMINISTRATIVE MATTERS; THAT WHEN THE CRASH OCCURRED HE RAN TO ASSIST IN REMOVING PERSONNEL FROM THE DEMOLISHED BUILDING AND THEN PROCEEDED TO THE CRASHED AIRPLANE; THAT WHILE ASSISTING IN THE RELEASE OF AN AIRMAN TRAPPED BETWEEN THE AIRPLANE AND THE SIDE OF THE COLLAPSED BUILDING, THE AIRCRAFT EXPLODED RESULTING IN THE INJURY AND HOSPITALIZATION OF MAJOR GRENIER UNTIL AUGUST 27, 1952. PARAGRAPH 9 OF SPECIAL ORDERS NO. 18, DATED JANUARY 22, 1952, HEADQUARTERS, 3535TH BOMBARDMENT TRAINING WING, MATHER AIR FORCE BASE, MATHER FIELD, CALIFORNIA, AS AMENDED BY PARAGRAPH 26 OF SPECIAL ORDERS NO. 20, DATED JANUARY 24, 1952, ISSUED BY THE SAME HEADQUARTERS, CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF JANUARY 19, 1952, SUSPENDED MAJOR GRENIER FROM FLYING DUTY AS OF THE DATE OF THE ACCIDENT BECAUSE OF HIS BEING PHYSICALLY DISQUALIFIED FOR SUCH DUTY ") NOT AS RESULT OF AVN ACDT).'

EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950, PROMULGATING REGULATIONS RELATING TO THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, PROVIDES IN PART AS FOLLOWS:

SECTION 1. FOR THE PURPOSES OF THESE REGULATIONS:

(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 ATTESTED 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 OR AUXILIARY THEREOF, OR (2) PARTICIPATION IN ANY DULY AUTHORIZED AERIAL FLIGHT OR OTHER AIRCRAFT OR GLIDER OPERATIONS.

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.

IT SEEMS TO BE MAJOR GRENIER'S CONTENTION THAT THE DEFINITION OF "AVIATION ACCIDENT" AS SET FORTH IN PARAGRAPH 3C OF AIR FORCE REGULATION 173-128, DATED FEBRUARY 8, 1951--- SUCH DEFINITION BEING SUBSTANTIALLY THE SAME AS QUOTED ABOVE--- EVIDENCES AN INTENTION THAT IT SHALL APPLY TO PERSONNEL WHO RECEIVE INJURIES IN OTHER THAN AERIAL FLIGHTS, SUCH AS THE ACCIDENT IN WHICH HE WAS INVOLVED, AS WELL AS PERSONNEL WHO ARE INJURED IN AERIAL FLIGHTS, PROVIDING THEY ARE ASSIGNED TO FLYING DUTY BY COMPETENT ORDERS. AND, IN SUPPORT OF THAT VIEW HE CITES PARAGRAPH 17A OF THE SAME REGULATION WHICH IS SIMILAR TO THE ABOVE QUOTED SECTION 10, BUT PROVIDES:

A. GENERAL.--- ANY MEMBER WHO IS PLACED ON A FLYING STATUS AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY BY AVIATION ACCIDENT OR OTHERWISE, * * *

EXECUTIVE ORDER NO. 10152 NOT ONLY PRESCRIBES REGULATIONS RELATIVE TO THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF AVIATION DUTY, BUT ALSO PRESCRIBES REGULATIONS FOR THE PAYMENT OF INCENTIVE PAY FOR THE OTHER TYPES OF HAZARDOUS DUTY FOR WHICH SUCH PAY IS AUTHORIZED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809. HENCE, SECTION 10 IS STATED MORE BROADLY THAN THE CORRESPONDING PROVISION IN PRIOR EXECUTIVE ORDERS SUCH AS SECTION 10 OF EXECUTIVE ORDER NO. 9195, JULY 7, 1942, WHICH RELATED ONLY TO THE PAYMENT OF ADDITIONAL PAY FOR THE PERFORMANCE OF AVIATION DUTY. THE PROVISIONS OF THE SAID PARAGRAPH 17 OF THE CITED AIR FORCE REGULATION MAY NOT BE CONSIDERED AS ENLARGING THE RIGHTS IN THAT RESPECT AUTHORIZED BY SECTION 10 OF THE EXECUTIVE ORDER. THE PERSONS COVERED BY THE SAID SECTION 10 WHO ARE DEEMED TO HAVE FULFILLED THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY WHILE INJURED OR OTHERWISE INCAPACITATED ARE DESCRIBED AS MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO ARE INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF "SUCH DUTY," THAT IS, THE HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. OBVIOUSLY, MAJOR GRENIER'S INJURY DID NOT RESULT FROM THE PERFORMANCE OF HIS FLYING DUTY ASSIGNMENT, BUT RESULTED FROM PARTICIPATING IN RESCUE OPERATIONS WHICH HAD NO RELATION TO HIS ASSIGNMENT TO FLYING DUTY. THAT IS ADMINISTRATIVELY RECOGNIZED AS EVIDENCED BY THE ORDERS SUSPENDING HIM FROM FLYING DUTY BECAUSE OF HIS INJURY, NOT THE RESULT OF AN AVIATION ACCIDENT, WITHIN THE MEANING OF THE APPLICABLE DEFINITION OF SUCH TERM.

ACCORDINGLY, MAJOR GRENIER MAY NOT BE DEEMED, BY REASON OF THE PROVISIONS OF THE SAID SECTION 10, TO HAVE MET THE REQUIREMENTS FOR FLYING PAY FOR A THREE MONTH PERIOD FOLLOWING HIS INJURY. THEREFORE, HE MAY NOT BE CREDITED WITH AVIATION PAY FOR SUCH PERIOD AND THE ENCLOSURES RECEIVED WITH YOUR LETTER WILL BE RETAINED IN THIS OFFICE.