B-12339, SEPTEMBER 25, 1940, 20 COMP. GEN. 176

B-12339, SEPTEMBER 25, 1940, 20 COMP. GEN. 176

PAY - AVIATION DUTY - NAVAL RESERVE OFFICER COMMISSIONED FROM AVIATION CADET AN ENSIGN IN THE NAVAL RESERVE COMMISSIONED FROM AVIATION CADET UNDER THE ACT OF JUNE 13, 1939, AND CONTINUED ON ACTIVE DUTY UNDER ORDERS PROVIDING THAT "EXISTING DETAIL TO DUTY INVOLVING FLYING CONTINUES IN EFFECT," IS IN A CONTINUOUS FLYING DUTY STATUS AND IS ENTITLED TO INCREASED PAY FOR FLYING DUTY BETWEEN THE DATE OF ACCEPTANCE OF HIS COMMISSION AS ENSIGN AND THE DATE OF REPORTING FOR DUTY THEREUNDER, EVEN THOUGH HIS FLYING DUTY STATUS AS AVIATION CADET WAS NOT CREATED BY WRITTEN ORDERS BUT ATTACHED BY REASON OF THE INHERENT NATURE OF THE DUTIES OF AVIATION CADET.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 25, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 12, 1940, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A COPY OF A LETTER FROM THE CHIEF OF THE BUREAU OF AERONAUTICS, NAVY DEPARTMENT, DATED AUGUST 14, 1940, WITH COPIES OF ACCOMPANYING ENDORSEMENTS AND ENCLOSURES, RELATIVE TO THE EFFECTIVE DATE FOR PAYMENT OF FLIGHT PAY IN THE CASE OF ENSIGNS A-V (N), U.S. NAVAL RESERVE (FORMER AVIATION CADETS), FOLLOWING ACCEPTANCE OF COMMISSION AND RECEIPT OF ORDERS SPECIFYING A DETAIL TO DUTY INVOLVING FLYING.

PARTICULAR ATTENTION IS INVITED TO THE ENCLOSED COPY OF ORDERS (MARKED " ENCLOSURE A)" NOW BEING ISSUED TO ENSIGNS OF CLASS A-V (N), FOLLOWING COMPLETION OF THEIR TRAINING AS AVIATION CADETS, AND TO THE ENCLOSED COPY OF ORDERS (MARKED " ENCLOSURE B") WHICH IT IS PROPOSED TO ISSUE TO ENSIGNS OF CLASS A-V (N) WHO, UPON COMPLETION OF THEIR TRAINING AS AVIATION CADETS AT THE NAVAL AIR STATION ARE COMMISSIONED AND ORDERED TO ACTIVE DUTY IN THE AERONAUTIC ORGANIZATION OF THE NAVY.

IN CONNECTION WITH THE FOREGOING YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION AS TO WHETHER ORDERS IN THE FORM PROPOSED IN ENCLOSURE "B" HEREWITH WILL PLACE ENSIGNS OF CLASS A-V (N) IN A CONTINUOUS FLIGHT STATUS AND ENTITLE THEM TO FLIGHT PAY FROM THE DATES OF THEIR ACCEPTANCE OF COMMISSIONS AS ENSIGNS, A-V (N), PROVIDED OTHER REQUIREMENTS FOR FLIGHT PAY ARE FULFILLED, WHETHER OR NOT THEIR PRIOR ORDERS AS AVIATION CADETS CONTAIN A WRITTEN DETAIL TO DUTY INVOLVING FLYING.

IT WAS HELD BY FORMER COMPTROLLER GENERAL MCCARL IN A.D. 7543, MAY 11, 1923, TO THE SECRETARY OF THE NAVY (IN WHICH WERE EMBODIED THE HOLDINGS EITHER DIRECTLY OR BY IMPLICATION CONTAINED IN 2 COMP. GEN. 370; ID. 185 AND 237) THAT---

AN ORDER DETAILING AN OFFICER TO DUTY INVOLVING FLYING, OTHER CONDITIONS BEING MET, IS EFFECTIVE PURSUANT TO ITS TERMS, FOR PURPOSES OF FLYING PAY, WHEN THE OFFICER NAMED REPORTS FOR, AND ENTERS UPON DUTY THEREUNDER. OFFICER IN A NONDUTY STATUS, SUCH AS LEAVE, SICK, ETC., WHEN THE ORDER OF DETAIL ISSUES IS NOT, FOR PURPOSES OF PAY, DETAILED TO DUTY INVOLVING FLYING UNTIL HE SHALL HAVE RETURNED TO A DUTY STATUS, AND REPORTED FOR, AND ENTERED ON, DUTY UNDER THE ORDER DETAILING HIM TO DUTY INVOLVING FLYING.

THE DIFFICULTY SEEMS TO ARISE IN THE CASE OF OFFICERS OF THE NAVAL RESERVE COMMISSIONED FROM THE STATUS OF AVIATION CADETS (ENSIGNS A-V (N), U.S. NAVAL RESERVE) IN THAT THE ORDER ASSIGNING THE OFFICER A STATION UPON ACCEPTANCE OF COMMISSION AS ENSIGN A-V (N), U.S. NAVAL RESERVE, CONTAINS A PARAGRAPH 2 AS FOLLOWS:

THESE ORDERS CONSTITUTE YOUR ASSIGNMENT TO DUTY IN A PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY, AND YOU ARE HEREBY DETAILED TO DUTY INVOLVING FLYING EFFECTIVE UPON THE DATE OF REPORTING IN OBEDIENCE TO THESE ORDERS. IF THERE SHOULD BE A LAPSE OF TIME BETWEEN THE DATE OF ACCEPTANCE AND THE DATE OF REPORTING UNDER THE ORDER, PAYMENT OF FLYING PAY FOR THAT PERIOD MIGHT BE DOUBTFUL. IT IS PROPOSED TO AMEND THE ORDER TO PROVIDE THAT UPON ASSIGNMENT TO DUTY IN A PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY HIS "EXISTING DETAIL TO DUTY INVOLVING FLYING CONTINUES IN EFFECT; " BUT IF THE OFFICER WAS NOT THERETOFORE, BY ORDERS ISSUED FROM THE BUREAU OF NAVIGATION, REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS QUESTION ARISES AS TO THE LEGALITY OF CONTINUING IN EFFECT WHAT WAS APPARENTLY NOT IN EXISTENCE THERETOFORE.

SECTION 20 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 783, PROVIDES

THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN * * * OF THE RESERVES OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT CALLED TO ACTIVE DUTY SHALL RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT * * *.

THE ACT OF APRIL 15, 1935, 49 STAT. 156, WAS ENTITLED,"AN ACT TO PROVIDE FOR AVIATION CADETS IN THE NAVAL RESERVE AND MARINE CORPS RESERVE.' THE ACT ESTABLISHED THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND BY SECTION 2 IT WAS PROVIDED THAT AVIATION CADETS WHILE ON ACTIVE DUTY UNDERGOING TRAINING SHALL BE ENTITLED TO COMPENSATION AT THE RATE OF $75 PER MONTH,"WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISK, AS PROVIDED BY LAW; " AND PAY AT $125 PER MONTH, WHILE ON ACTIVE DUTY NOT UNDERGOING TRAINING,"WHICH PAY SHALL INCLUDE EXTRA PAY FOR FLYING RISK, AS PROVIDED BY .' BY THE ACT OF JUNE 13, 1939, 53 STAT. 819, ENTITLED "AN ACT TO AUTHORIZE COMMISSIONING AVIATION CADETS IN THE NAVAL AND MARINE CORPS RESERVES UPON COMPLETION OF TRAINING, AND FOR OTHER PURPOSES," THE ACT OF 1935 WAS AMENDED AND BY SECTION 2 THEREOF IT WAS PROVIDED THAT AVIATION CADETS MAY, IF QUALIFIED AFTER COMPLETION OF TRAINING, BE COMMISSIONED ENSIGNS IN THE NAVAL RESERVE OR SECOND LIEUTENANTS IN THE MARINE CORPS RESERVE. SECTION 13 OF THE ACT FIXES THE MINIMUM NUMERICAL STRENGTH TO BE ACHIEVED IN AVIATION OFFICERS OF THE RESERVE AT 6,000, AND SECTION 14 OF THE ACT REQUIRED THE SECRETARY OF THE NAVY TO APPOINT A BOARD TO INVESTIGATE AND REPORT UPON ALL MATTERS CONCERNING THE REGULAR AND RESERVE AVIATION PERSONNEL OF THE NAVY AND MARINE CORPS. UNDER THESE ACTS THERE IS NO QUESTION AVIATION CADETS IN THE NAVAL RESERVE ARE REQUIRED TO FLY. THAT WAS THE PRIMARY PURPOSE OF THEIR APPOINTMENT AS AVIATION CADET. THAT, DIFFERENT FROM AN OFFICER OR MAN DESIGNATED AS A STUDENT NAVAL AVIATOR WHO RECEIVES AN ORDER FROM THE CHIEF OF THE BUREAU OF NAVIGATION AND WHO, WHEN HE HAS QUALIFIED, IS APPOINTED A NAVAL AVIATOR BY THE SAME AUTHORITY, AVIATION CADETS OF THE NAVAL RESERVE ARE BY THEIR APPOINTMENTS AS SUCH AND BY THE TERMS OF THE ACTS OF 1935 AND 1939 REQUIRED TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS, AND NO ORDER FROM THE CHIEF OF THE BUREAU OF NAVIGATION TO THAT EFFECT IS NECESSARY. SUCH BEING THE CASE WHEN AVIATION CADETS ARE COMMISSIONED AS OFFICERS IN THE NAVAL RESERVE UNDER THE ACT OF 1939 AND CONTINUED ON ACTIVE DUTY IT IS NOT ONLY COMPETENT BUT PROPER THAT THE ORDERS ASSIGNING THEM TO DUTY AS OFFICERS SHOULD RECITE THAT THEIR "EXISTING DETAIL TO DUTY INVOLVING FLYING CONTINUES IN FECT.' ACCORDINGLY, INCREASED PAY FOR FLYING DUTY, OTHER CONDITIONS BEING MET, WILL NOT BE QUESTIONED IN THE AUDIT OF ACCOUNTS BETWEEN THE DATE OF ACCEPTANCE BY AN AVIATION CADET OF HIS COMMISSION IN THE NAVAL RESERVE UNDER THE ACT OF 1939, AND HIS REPORTING FOR DUTY THEREUNDER PURSUANT TO ORDERS IN THE FORM DESCRIBED BY YOU AS ENCLOSURE "B," WHICH CONTINUES IN EFFECT AS AN OFFICER OF THE NAVAL RESERVE THE PRIOR DETAIL OF THE OFFICER AS AN AVIATION CADET TO DUTY INVOLVING FLYING.