B-122531, JUN. 21, 1955

B-122531: Jun 21, 1955

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USNR: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3. YOUR AUTHORITY TO PILOT NAVAL AIRCRAFT IS HEREBY REVOKED.'. THE LETTER WAS FORWARDED TO YOU BY FIRST ENDORSEMENT OF FEBRUARY 3. THE RECORD INDICATES THAT IT WAS RECEIVED BY YOU AT YOUR STATION ON FEBRUARY 8. UNDER PARAGRAPH 4 OF THAT ORDER ONLY MEMBERS "WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS" CAN QUALIFY FOR FLYING PAY. PARAGRAPH 12 OF THE ORDER PROVIDES THAT "THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS.'. THAT THE STATUS OF A MEMBER OF THE MILITARY SERVICE IS NOT CHANGED UNTIL NOTICE OF SUCH CHANGE IS RECEIVED BY THE MEMBER.

B-122531, JUN. 21, 1955

TO LIEUTENANT WILLIAM C. HITT, JR., USNR:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1955, RELATIVE TO SETTLEMENT OF DECEMBER 27, 1954, WHICH DISALLOWED YOUR CLAIM FOR FLYING PAY FOR THE MONTH OF FEBRUARY 1954.

BY LETTER DATED JANUARY 27, 1954, THE CHIEF OF NAVAL PERSONNEL NOTIFIED YOU THAT "EFFECTIVE THIS DATE, YOUR AUTHORITY TO PILOT NAVAL AIRCRAFT IS HEREBY REVOKED.' THE LETTER WAS FORWARDED TO YOU BY FIRST ENDORSEMENT OF FEBRUARY 3, 1954, FROM COMMANDER AIR FORCE, UNITED STATES PACIFIC FLEET, SAN DIEGO, CALIFORNIA, AND THE RECORD INDICATES THAT IT WAS RECEIVED BY YOU AT YOUR STATION ON FEBRUARY 8, 1954. A FLIGHT CERTIFICATE SIGNED BY AN OFFICER AT YOUR STATION STATES THAT YOU HAD FULFILLED ALL FLIGHT REQUIREMENTS AND CONDITIONS IN FORCE DURING THE PERIOD FEBRUARY 1 TO 8, 1954.

EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, ISSUED UNDER AUTHORITY CONTAINED IN SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, CONTAINS REGULATIONS GOVERNING ENTITLEMENT TO FLYING PAY. UNDER PARAGRAPH 4 OF THAT ORDER ONLY MEMBERS "WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS" CAN QUALIFY FOR FLYING PAY. PARAGRAPH 12 OF THE ORDER PROVIDES THAT "THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS.'

IT HAS BEEN HELD GENERALLY, IN THE ABSENCE OF SOME CONTRARY PROVISION OF LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, THAT THE STATUS OF A MEMBER OF THE MILITARY SERVICE IS NOT CHANGED UNTIL NOTICE OF SUCH CHANGE IS RECEIVED BY THE MEMBER. B-119143, JUNE 8, 1954; 27 COMP. GEN. 176; CRIST V. UNITED STATES, 124 C.CLS. 825. THAT RULE IS FOR APPLICATION HERE UNLESS SOME SUCH PROVISION OF LAW OR REGULATION REQUIRES A DIFFERENT CONCLUSION.

WHILE PARAGRAPH 044086-1D, VOLUME IV, NAVY COMPTROLLER MANUAL, STATES THAT AVIATION PAY MAY NOT BE CREDITED BEYOND THE DATE OF REVOCATION OF FLIGHT ORDERS, REGARDLESS OF THE DATE OF RECEIPT OF NOTICE OF REVOCATION, SUCH INSTRUCTIONS WERE ISSUED BY THE NAVY COMPTROLLER FOR THE INFORMATION AND GUIDANCE OF NAVAL PERSONNEL WHOSE DUTIES INVOLVE THE DISBURSEMENT OF PUBLIC FUNDS. IT RELATES PRIMARILY TO CREDITS TO BE MADE IN A MEMBER'S PAY ACCOUNT AND NOT TO HIS STATUS AS A FLYING OFFICER. ALTHOUGH IT APPEARS THAT SUCH INSTRUCTIONS HAD THE APPROVAL OF THE SECRETARY OF THE NAVY, THEY APPARENTLY WERE ISSUED UNDER AUTHORITY CONTAINED IN ARTICLES 0404, 1201-1 (E) AND 1202-6, U.S. NAVY REGULATIONS, 1948. SUCH REGULATIONS WERE PROMULGATED PRIOR TO ENACTMENT OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 AND, OF COURSE, DO NOT PURPORT TO DELEGATE TO THE NAVY COMPTROLLER AUTHORITY TO ISSUE SECRETARIAL REGULATIONS REQUIRED UNDER PARAGRAPH 12 OF THE EXECUTIVE ORDER DATED AUGUST 17, 1950. HENCE, IT IS CONCLUDED THAT THE INSTRUCTIONS IN THE NAVY COMPTROLLER MANUAL DID NOT HAVE THE EFFECT OF TERMINATING YOUR FLYING STATUS ON JANUARY 27, 1954, AND SUCH STATUS WILL BE CONSIDERED TO HAVE CONTINUED UNTIL FEBRUARY 8, 1954.

HOWEVER, YOU ARE NOT ENTITLED TO FLYING PAY FOR THE FULL MONTH OF FEBRUARY 1954. WHILE YOU STATE THAT BY FEBRUARY 8, 1954 "I HAD ALREADY ACCRUED MY FLIGHT TIME FOR THE MONTH OF FEBRUARY," APPLICABLE REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF FLYING PAY FOR A FULL MONTH WHEN THE OFFICER CONCERNED IS IN A FLYING PAY STATUS FOR ONLY PART OF THE MONTH. SEE SECTION 4 (A) (4), OF THE CITED EXECUTIVE ORDER.

A SETTLEMENT WILL ISSUE IN DUE COURSE ALLOWING THE AMOUNT FOUND DUE FOR THE PERIOD FEBRUARY 1 TO 8, 1954.