B-124545, SEP. 30, 1955

B-124545: Sep 30, 1955

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NAVAL AIR STATION: NAVAL AIR TATION: REFERENCE IS MADE TO YOUR LETTER OF JUNE 7. COVERING THE CIRCUMSTANCES SURROUNDING THE INJURIES WHICH WERE SUSTAINED BY THE ENLISTED MAN ON FEBRUARY 3. ARE IN PERTINENT PART AS FOLLOWS: "A. WAS EXECUTING HIS REGULARLY ASSIGNED DUTIES AS SENIOR FLIGHT ENGINEER OF WV-2 AIRCRAFT. "B. THE AIRCRAFT WAS PARKED ON THE CONCRETE APRON ADJACENT TO THE WV-2 HANGAR IN AN AREA REGULARLY USED FOR THIS PURPOSE. "C. THE PARKING AREA WAS COVERED WITH ICE AND SNOW VARYING IN THICKNESS FROM ONE-FOURTH ( 1/4 ( INCH TO ONE (1) INCH. "G. BEARD WAS INJURED AS A RESULT OF THIS FALL. HE WAS REMOVED TO THE USNAS. MARYLAND WHERE SUBSEQUENT MEDICAL EXAMINATION REVEALED HOSPITALIZATION TO BE NECESSARY AND HE WAS TRANSFERRED ON 4 FEBRUARY 1955 TO USNH.

B-124545, SEP. 30, 1955

TO LIEUTENANT LOIS E. HARDEN, SC, USN, DISBURSING OFFICER, NAVAL AIR STATION: NAVAL AIR TATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1955, WITH ENCLOSURES, FORWARDED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF HARRY J. BEARD, 295-45-15, CHIEF AVIATION MACHINIST'S MATE, U.S. NAVY, WITH AVIATION PAY (CREW MEMBER) UNDER THE FOLLOWING CIRCUMSTANCES.

THE FINDINGS OF FACTS CONTAINED IN A COPY OF THE INVESTIGATION REPORT OF FEBRUARY 15, 1955, COVERING THE CIRCUMSTANCES SURROUNDING THE INJURIES WHICH WERE SUSTAINED BY THE ENLISTED MAN ON FEBRUARY 3, 1955, ARE IN PERTINENT PART AS FOLLOWS:

"A. AT 1620 EST, 3 FEBRUARY 1955, BEARD, HARRY J., 295 45 15, ADC, USN, WAS EXECUTING HIS REGULARLY ASSIGNED DUTIES AS SENIOR FLIGHT ENGINEER OF WV-2 AIRCRAFT, BUNO 135753.

"B. THE AIRCRAFT WAS PARKED ON THE CONCRETE APRON ADJACENT TO THE WV-2 HANGAR IN AN AREA REGULARLY USED FOR THIS PURPOSE.

"C. THE PARKING AREA WAS COVERED WITH ICE AND SNOW VARYING IN THICKNESS FROM ONE-FOURTH ( 1/4 ( INCH TO ONE (1) INCH.

"D. BEARD, TO REACH THE FILLER CAPS OF THE AIRCRAFT FUEL TANKS, FOUND IT NECESSARY TO CLIMB TO THE UPPER SURFACE OF THE PORT WING. TO DO SO, HE UTILIZED ONE OF SEVERAL, SIMILAR, AIRCRAFT SERVICING LADDERS, CONSTRUCTED OF STEEL TUBING, APPROXIMATELY FOURTEEN (14) FEET LONG.

"F. BEARD, DURING HIS DESCENT OF THE LADDER, REACHED A POSITION APPROXIMATELY TEN (10) FEET ABOVE THE GROUND WHEN THE FOOT OF THE LADDER SLIPPED, CAUSING THE UPPER END TO LOSE ITS SUPPORT ON THE AIRCRAFT WING, WHEREUPON BOTH THE LADDER AND BEARD FELL TO THE CONCRETE APRON.

"G. BEARD WAS INJURED AS A RESULT OF THIS FALL. HE WAS REMOVED TO THE USNAS, INFIRMARY, PATUXENT RIVER, MARYLAND WHERE SUBSEQUENT MEDICAL EXAMINATION REVEALED HOSPITALIZATION TO BE NECESSARY AND HE WAS TRANSFERRED ON 4 FEBRUARY 1955 TO USNH, BETHESDA, MARYLAND FOR FURTHER TREATMENT.

"H. BEARD REPORTED ABOARD AIRBORNE EARLY WARNING SQUADRON TWO (VW 2) FOR DUTY ON 20 APRIL 1954. HE WAS ATTACHED TO AND SERVING ON BOARD AIRBORNE EARLY WARNING SQUADRON TWO (VW-2) IN HIS REGULARLY ASSIGNED STATION OF DUTY AT THE TIME HIS INJURIES WERE SUSTAINED.'

THE QUESTION PRESENTED IS WHETHER THE INJURIES SUFFERED BY BEARD RESULTED FROM AN "AVIATION ACCIDENT" AS THAT TERM IS DEFINED IN EXECUTIVE ORDER NO. 10152 OF AUGUST 17, 1950, SO AS TO ENTITLE HIM TO CREDIT OF AVIATION PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND APRIL 1955. REGULATIONS GOVERNING THE RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS, INCLUDING THE PERFORMANCE OF AERIAL FLIGHT DUTY, WERE PROMULGATED PURSUANT TO SECTION 204/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 37 U.S.C. 235/A), IN EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950. SECTION 1/C) OF THE EXECUTIVE ORDER PROVIDES THAT 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.' SECTION 4 OF THE EXECUTIVE ORDER PRESCRIBES THE MINIMUM FLIGHT REQUIREMENTS WHICH MUST BE MET UNDER CERTAIN SPECIFIED CONDITIONS TO QUALIFY A MEMBER FOR INCENTIVE PAY FOR THE PERFORMANCE OF AERIAL FLIGHTS UNDER COMPETENT ORDERS.

SECTION 10 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.'

PRIOR TO THE DATE ON WHICH HE WAS INJURED BEARD HAD BEEN ASSIGNED BY COMPETENT ORDERS TO FLYING DUTY AS A CREW MEMBER, AND HE WAS PERFORMING HIS REGULARLY ASSIGNED DUTIES AS A CREW MEMBER OF THE PLANE BEING REFUELED ON FEBRUARY 3, 1955, WHEN HE WAS INJURED. UNDER SUCH CIRCUMSTANCES THE INJURIES WHICH WERE SUSTAINED BY HIM REASONABLY ARE TO BE CONSIDERED AS THE RESULT OF AN AVIATION ACCIDENT WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 10 OF THE EXECUTIVE ORDER. IF OTHERWISE CORRECT, BEARD'S PAY ACCOUNT MAY BE CREDITED WITH AVIATION PAY AS A CREW MEMBER IN THE AMOUNT PROPERLY DUE.