B-119213, APRIL 7, 1954, 33 COMP. GEN. 436

B-119213: Apr 7, 1954

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WHICH AUTHORIZES CONTINUATION OF INCENTIVE PAY FOR THREE MONTHS FOR MEMBERS OF UNIFORMED SERVICES IN FLYING STATUS WHO ARE INCAPACITATED AS RESULT OF AVIATION ACCIDENT. THEREFORE A MEMBER WHO IS CAPTURED BY THE ENEMY WHILE IN FLYING STATUS. WHO IS RELEASED FROM CAPTIVITY INCAPACITATED FOR FLYING BECAUSE OF PRIVATION AND HARDSHIP SUFFERED WHILE A PRISONER. 1954: REFERENCE IS MADE TO LETTER DATED MARCH 8. WHO WERE ON FLYING STATUS AT THE TIME THEY WERE CAPTURED. THERE WAS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER A COPY OF COMMITTEE ACTION NO. 95. IN WHICH IT IS STATED THAT ABOUT 220 AIR FORCE AIRMEN AND OFFICER PRISONERS OF WAR. WHO HAD BEEN ON FLYING STATUS WHEN THEY WERE CAPTURED.

B-119213, APRIL 7, 1954, 33 COMP. GEN. 436

FLIGHT PAY - REPATRIATED PRISONERS OF WAR PHYSICALLY INCAPACITATED FOR FLYING - PERIODS FOLLOWING RELEASE FROM CAPTIVITY SECTION 10 OF EXECUTIVE ORDER NO. 10152, WHICH AUTHORIZES CONTINUATION OF INCENTIVE PAY FOR THREE MONTHS FOR MEMBERS OF UNIFORMED SERVICES IN FLYING STATUS WHO ARE INCAPACITATED AS RESULT OF AVIATION ACCIDENT, CONTEMPLATES THAT SUCH INCAPACITY RESULTS FROM PERFORMANCE OF AERIAL FLIGHTS, AND THEREFORE A MEMBER WHO IS CAPTURED BY THE ENEMY WHILE IN FLYING STATUS, AND WHO IS RELEASED FROM CAPTIVITY INCAPACITATED FOR FLYING BECAUSE OF PRIVATION AND HARDSHIP SUFFERED WHILE A PRISONER, MAY NOT BE GRANTED INCENTIVE PAY FOR PERIODS IMMEDIATELY FOLLOWING RELEASE, DURING WHICH HE DID NOT PARTICIPATE IN AERIAL FLIGHTS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 7, 1954:

REFERENCE IS MADE TO LETTER DATED MARCH 8, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION AS TO WHETHER AIRMEN AND OFFICERS WHO BECAME PRISONERS OF WAR DURING THE KOREAN CONFLICT, AND WHO WERE ON FLYING STATUS AT THE TIME THEY WERE CAPTURED, MAY BE GRANTED INCENTIVE PAY, UNDER EXECUTIVE ORDER NO. 10152, FOR PERIODS IMMEDIATELY FOLLOWING THEIR RELEASE, DURING WHICH THEY DID NOT PARTICIPATE IN AERIAL FLIGHTS.

THERE WAS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER A COPY OF COMMITTEE ACTION NO. 95, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, IN WHICH IT IS STATED THAT ABOUT 220 AIR FORCE AIRMEN AND OFFICER PRISONERS OF WAR, WHO HAD BEEN ON FLYING STATUS WHEN THEY WERE CAPTURED, WERE REPATRIATED DURING AUGUST AND SEPTEMBER 1953; THAT THEY ALL RECEIVED INCENTIVE PAY FOR THE ENTIRE PERIOD OF THEIR CAPTIVITY, UNDER THE PROVISIONS OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 143, AS AMENDED; THAT MOST OF THESE AIRMEN AND OFFICERS WERE PHYSICALLY INCAPACITATED FOR FLYING AT THE TIME THEY WERE REPATRIATED; AND THAT ALL OF THEM WERE PLACED IN A HOSPITAL/PATIENT STATUS, AND WERE SUSPENDED FROM FLYING STATUS, AT THE TIME THEY WERE RETURNED TO UNITED NATIONS' CONTROL.

PARAGRAPH 10 OF THE EXECUTIVE ORDER NO. 5865, EFFECTIVE JULY 1, 1932, AND PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, EFFECTIVE JUNE 1, 1942, EACH EXCUSED THE PERFORMANCE OF AERIAL FLIGHTS--- OTHERWISE REQUIRED FOR ENTITLEMENT TO AVIATION PAY--- WHILE INCAPACITATED FOR FLYING, BY REASON OF AN AVIATION ACCIDENT, FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT. IN 23 COMP. GEN. 964, CITED IN THE ABOVE COMMITTEE ACTION, IT WAS HELD THAT, UNDER THE PROVISIONS OF EXECUTIVE ORDERS NOS. 5865 AND 9195, AN OFFICER SHOT DOWN OVER ENEMY-HELD TERRITORY AND RESCUED 10 MONTHS LATER COULD NOT BE CONSIDERED TO HAVE BECOME ENTITLED TO AVIATION PAY, AS FOR ONE INCAPACITATED BY AN AVIATION ACCIDENT, FOR A 3-MONTH PERIOD BEGINNING WITH THE TIME OF HIS RESCUE, SINCE THE AVIATION ACCIDENT OCCURRED WHEN HE WAS SHOT DOWN, 10 MONTHS PRIOR TO HIS RESCUE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, PROVIDES THAT, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE "INCENTIVE PAY," IN ADDITION TO THEIR BASIC PAY, FOR THE "PERFORMANCE OF HAZARDOUS DUTY" REQUIRED BY COMPETENT ORDERS, INCLUDING "DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS.

SECTION 10 OF EXECUTIVE ORDER NO. 10152, ISSUED AUGUST 17, 1950, PROVIDES THAT:

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. ( ITALICS SUPPLIED.)

WHILE EARLIER EXECUTIVE ORDERS AND THE ONE NOW IN EFFECT DIFFER IN THAT THE 3-MONTH DISABILITY PERIOD, DURING WHICH PAY FOR FLYING DUTY MIGHT BE ALLOWED, BEGAN WITH THE DATE OF THE DISABLING AVIATION ACCIDENT UNDER THE OLD REGULATIONS AND NOW BEGINS WITH "THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY," THERE HAS BEEN NO MATERIAL CHANGE INSOFAR AS THE QUESTION HERE INVOLVED IS CONCERNED. UNDER EACH SET OF REGULATIONS THE QUESTION TO BE DETERMINED IS ONE OF PROXIMATE CAUSE. THAT IS, UNDER THE OLD REGULATIONS THE QUESTION WAS WHETHER THE INCAPACITY RESULTED FROM AN AVIATION ACCIDENT AND UNDER THE CURRENT EXECUTIVE ORDER THE QUESTION IS WHETHER THE INCAPACITY RESULTED FROM THE PERFORMANCE OF AERIAL FLIGHTS. AS IN ANY CASE WHERE A DETERMINATION MUST BE MADE OF THE PROXIMATE CAUSE OF AN INJURY OR INCAPACITY, THE DECISION RESTS UPON THE FACTS INVOLVED IN THE PARTICULAR CASE. WHILE YOUR REQUEST FOR DECISION DOES NOT STATE SUFFICIENT FACTS ON WHICH TO DECIDE A PARTICULAR CASE, SOME POSSIBLE CASES WILL BE CONSIDERED AND THE CONCLUSIONS REACHED MAY BE HELPFUL AS A GUIDE IN OTHER CASES.

FIRST, IF AN OFFICER IN A FLYING STATUS IS CAPTURED IN AN ENEMY ADVANCE WHILE HE IS NOT PARTICIPATING IN FLYING (HE MAY BE SICK IN THE HOSPITAL OR OTHERWISE NOT ACTUALLY PERFORMING AERIAL FLIGHTS), THERE WOULD APPEAR TO BE NO BASIS FOR A FINDING THAT HE WAS INCAPACITATED AS THE RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY WITHIN THE MEANING OF SECTION 10 OF SAID EXECUTIVE ORDER NO. 10152.

SECOND, IF AN OFFICER IS SHOT DOWN WHILE FLYING AND CAPTURED BY THE ENEMY AND INCIDENT TO HIS LANDING HE IS INJURED SO AS TO BE INCAPACITATED FOR FLYING, HE WOULD BE ENTITLED TO INCENTIVE PAY FOR THE FIRST THREE MONTHS FOLLOWING INCAPACITY NOTWITHSTANDING THE FACT THAT HE MAY HAVE BEEN RETURNED TO UNITED NATIONS' CONTROL DURING SUCH 3 MONTH PERIOD.

AS A THIRD EXAMPLE, THERE MAY BE CONSIDERED THE CASE OF AN OFFICER WHO, WHILE FLYING, IS SHOT DOWN IN ENEMY TERRITORY OR WHO, BY MISTAKE, LANDS IN THE ENEMY AREA AND WHO IS NOT RETURNED TO UNITED NATIONS' CONTROL UNTIL AFTER 3 MONTHS OF CAPTIVITY. FOR THE PURPOSE OF THIS DISCUSSION, IT WILL BE ASSUMED THAT THE OFFICER WAS NOT INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE ACTUAL LANDING IN ENEMY TERRITORY, BUT WHEN HE WAS RETURNED TO UNITED NATIONS' CONTROL, PERHAPS A YEAR LATER, HE WAS FOUND TO BE INCAPACITATED FOR FLYING BECAUSE OF PRIVATIONS AND HARDSHIPS SUFFERED WHILE IN THE HANDS OF THE ENEMY. EVEN IF IT COULD BE CONCLUDED THAT SUCH INCAPACITY RESULTED FROM THE PERFORMANCE OF AERIAL FLIGHTS, IT WOULD SEEM THAT APPROPRIATE MEDICAL AUTHORITIES WOULD BE REQUIRED TO DETERMINE THE DATE DURING CAPTIVITY ON WHICH HIS CONDITION BECAME INCAPACITATING AND THE 3-MONTH PERIOD WOULD START TO RUN FROM THAT DATE. HENCE, THERE WOULD BE NOT BASIS FOR CONCLUDING, AS SEEMS TO BE SUGGESTED IN THE REQUEST FOR DECISION, THAT AN OFFICER SO SITUATED WOULD BE ENTITLED TO INCENTIVE PAY FOR THREE FULL MONTHS FOLLOWING RETURN TO UNITED NATIONS' CONTROL. HOWEVER, IT IS THE VIEW OF THIS OFFICE THAT NEITHER THE LAW NOR THE EXECUTIVE REGULATIONS CONTEMPLATE THAT INCAPACITY TO FLY RESULTING FROM HARDSHIPS SUFFERED IN ENEMY CAPTIVITY WOULD GIVE A MEMBER OF THE SERVICE A RIGHT TO INCENTIVE PAY WITHOUT PERFORMING THE REQUIRED FLIGHTS. IN SO CONCLUDING, I AM NOT UNMINDFUL OF THE SERIOUS PHYSICAL CONDITION OF MANY OF THE PRISONERS RETURNED FROM ENEMY CONTROL AND I AM AWARE ALSO OF THE HARDSHIP AND SUFFERING ENDURED BY MANY OF THEM WHILE IN ENEMY HANDS. INCAPACITIES RESULTING FROM SUCH CAUSES, HOWEVER, WERE COMMON AMONG MILITARY PRISONERS GENERALLY, WHETHER OR NOT THEY HAD PREVIOUSLY ENGAGED IN AERIAL FLIGHTS. UNDER SUCH CIRCUMSTANCES, THE PROXIMATE CAUSE OF THE INCAPACITIES WAS THE INHUMANE TREATMENT AND NOT THE FLYING DUTY THAT CARRIED THEM INTO THE HANDS OF THE ENEMY. IT IS NOT ASSUMED THAT FLYING PERSONNEL WERE SUBJECTED TO ANY GREATER HAZARD IN THAT RESPECT THAN OTHER PRISONERS OF WAR.

INCENTIVE PAY IS A SPECIAL PAY AUTHORIZED FOR THE PERFORMANCE OF HAZARDOUS DUTY, IN THIS CASE THE PERFORMANCE OF AERIAL FLIGHTS. THE STATUTE ITSELF RECOGNIZES NO RIGHT TO THE SPECIAL PAY FOR PERIODS DURING WHICH FLIGHTS ARE NOT PERFORMED AND, THEREFORE, A REGULATION ISSUED UNDER THE STATUTE PERMITTING, UNDER CERTAIN CONDITIONS, THE TEMPORARY CONTINUANCE OF INCENTIVE PAY WITHOUT PERFORMANCE OF THAT SPECIAL DUTY IS SUBJECT TO STRICT CONSTRUCTION. ONLY ON THE BASIS THAT SUCH A REGULATION IS REASONABLY RESTRICTED TO EFFECTING THE PRIMARY PURPOSE OF THE STATUTE CAN ITS VALIDITY BE RECOGNIZED.

FOR THESE REASONS, THE GENERAL QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE.