B-124909, NOV. 28, 1955

B-124909: Nov 28, 1955

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YOU WERE SUSPENDED UNDER AUTHORITY OF PARAGRAPH 9G (1). THE CITED REGULATIONS PROVIDE THAT AN OFFICER SUSPENDED FROM FLYING STATUS UNDER THAT AUTHORITY WILL NOT RESUME FLYING DUTY UNTIL HE HAS RECEIVED ORDERS WHICH REMOVE THE SUSPENSION. WAS THEREBY REVOKED UNDER AUTHORITY OF PARAGRAPH 10B OF AIR FORCE REGULATION 36-57. IN THE PRESENTATION OF YOUR CLAIM YOU STATE THAT ON APPROXIMATELY MARCH 25 YOU WERE EXAMINED BY A FLIGHT SURGEON AND PERSONALLY ADVISED THAT YOU WERE ABLE TO RETURN TO FLYING STATUS AND THAT THE NECESSARY PAPER WORK HAD BEEN FORWARDED FOR PROCESSING. YOU INDICATE THAT ON APPROXIMATELY MARCH 29 YOU WERE NOTIFIED THAT YOU HAD BEEN RETURNED TO FLYING STATUS AND THAT ORDERS WOULD BE FORTHCOMING EVIDENCING THAT FACT.

B-124909, NOV. 28, 1955

TO MAJOR ELMER F. JAMES, USAF:

YOUR LETTER OF JUNE 24, 1955, REQUESTS REVIEW OF OUR SETTLEMENT OF JUNE 10, 1955, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS DURING THE PERIOD FROM JANUARY 1 TO MARCH 31, 1954.

UNDER PARAGRAPH 1 OF AERONAUTICAL ORDERS NO. 3, 7485TH AIR DEPOT WING (USAFE), DATED JANUARY 14, 1954, YOU WERE SUSPENDED UNDER AUTHORITY OF PARAGRAPH 9G (1), AIR FORCE REGULATION 36-57, FROM FLYING STATUS FOR 90 DAYS EFFECTIVE JANUARY 11, 1954, HAVING BEEN FOUND PHYSICALLY DISQUALIFIED FOR FLYING NOT AS A RESULT OF AN AIRCRAFT ACCIDENT. THE CITED REGULATIONS PROVIDE THAT AN OFFICER SUSPENDED FROM FLYING STATUS UNDER THAT AUTHORITY WILL NOT RESUME FLYING DUTY UNTIL HE HAS RECEIVED ORDERS WHICH REMOVE THE SUSPENSION. PARAGRAPH 1, AERONAUTICAL ORDERS NO. 28 OF HEADQUARTERS, UNITED STATES AIR FORCES IN EUROPE, DATED MARCH 31, 1954, PROVIDED THAT YOUR SUSPENSION FROM FLYING STATUS, IMPOSED BY THE PRIOR ORDERS, WAS THEREBY REVOKED UNDER AUTHORITY OF PARAGRAPH 10B OF AIR FORCE REGULATION 36-57. THAT REGULATION PROVIDES THAT A SUSPENSION FOR PHYSICAL DISQUALIFICATION OF 30 DAYS OR MORE, BUT NOT EXCEEDING SIX MONTHS, MAY BE REMOVED BY THE COMMANDER OF A MAJOR AIR COMMAND OR A SUBORDINATE AIR COMMAND PROVIDED THE OFFICER HAS BEEN FOUND PHYSICALLY QUALIFIED FOR FLYING DUTY.

IN THE PRESENTATION OF YOUR CLAIM YOU STATE THAT ON APPROXIMATELY MARCH 25 YOU WERE EXAMINED BY A FLIGHT SURGEON AND PERSONALLY ADVISED THAT YOU WERE ABLE TO RETURN TO FLYING STATUS AND THAT THE NECESSARY PAPER WORK HAD BEEN FORWARDED FOR PROCESSING. YOU INDICATE THAT ON APPROXIMATELY MARCH 29 YOU WERE NOTIFIED THAT YOU HAD BEEN RETURNED TO FLYING STATUS AND THAT ORDERS WOULD BE FORTHCOMING EVIDENCING THAT FACT. BASED ON THOSE REPORTS YOU FLEW 10 HOURS ON MARCH 30 AND 2 HOURS ON MARCH 31 TO MEET FLIGHT REQUIREMENTS FOR THE PERIOD JANUARY 1 TO MARCH 31. ALSO, YOU STATE THAT YOU HAD BEEN ADVISED THE VERBAL ORDERS OF THE COMMANDER IN CHIEF, U.S. AIR FORCES IN EUROPE, WERE EFFECTIVE ON MARCH 30, ALTHOUGH THE ORDERS ACTUALLY WERE ISSUED ON MARCH 31, 1954. CERTIFICATIONS OF VARIOUS OFFICERS, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM, INDICATE THAT YOU WERE FOUND PHYSICALLY QUALIFIED TO FLY AND THAT NECESSARY PAPERS WERE PREPARED AND ADVANCED THROUGH CHANNELS IN SUFFICIENT TIME TO PERMIT THE ISSUANCE OF REVOKING ORDERS BY MARCH 30, AND THAT YOU WERE ADVISED INFORMALLY BY A PERSONNEL OFFICER THAT HE HAD BEEN INFORMED BY HEADQUARTERS, U.S. AIR FORCES IN EUROPE, THAT YOU HAD BEEN RETURNED TO FLYING STATUS.

INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS IS AUTHORIZED BY SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, ONLY FOR DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS REQUIRED BY COMPETENT ORDERS. TO PLACE AN OFFICER, SUSPENDED FOR A PERIOD OF THREE MONTHS OR LESS FROM FLYING RESULTING FROM PHYSICAL DISQUALIFICATION, IN A STATUS ENTITLING HIM TO INCENTIVE PAY UNDER THAT AUTHORITY PARAGRAPHS 9G (1) AND 10B OF AIR FORCE REGULATION 36-57, CITED ABOVE, ANTICIPATE AND REQUIRE THE ISSUANCE OF ORDERS BY PROPER AUTHORITY REVOKING THE ORDERS THAT EFFECTED THE SUSPENSION, SUCH REVOKING ORDERS BEING EFFECTIVE ONLY UPON THEIR RECEIPT BY THE SUSPENDED OFFICER. WHILE YOU SUGGEST THAT VERBAL ORDERS ACCOMPLISHED THAT PURPOSE, THE ORDERS OF MARCH 31 DO NOT PURPORT TO BE ORDERS CONFIRMING PREVIOUS VERBAL ORDERS. FURTHERMORE, NOTHING IN THE RECORD INDICATES THAT THE ISSUING AUTHORITY HAD COMMUNICATED TO YOU ORALLY AN ORDER THAT THE PRIOR ORDERS WERE THEN REVOKED, OR THAT THERE EXISTED AN UNDERSTANDING BY YOU OR ANY OTHER PARTIES INVOLVED THAT THE REVOCATION OF YOUR SUSPENSION FROM FLYING WOULD BE EFFECTIVE EXCEPT UPON THE ACTUAL ISSUANCE OF THE WRITTEN ORDERS. WHILE IT IS UNFORTUNATE THAT THE ORDERS WERE NOT ISSUED IN SUFFICIENT TIME TO SERVE YOUR PURPOSE, IT MUST BE CONSIDERED THAT YOUR STATUS ON MARCH 30 AND UNTIL THE ISSUANCE OF THE ORDERS OF MARCH 31 WAS THAT OF AN OFFICER SUSPENDED FROM FLYING, AND THAT YOU DID NOT MAKE SUFFICIENT FLIGHTS AFTER THE REMOVAL OF THE SUSPENSION ON MARCH 31 TO QUALIFY FOR THE INCENTIVE PAY CLAIMED. ACCORDINGLY, THE SETTLEMENT OF JUNE 10, 1955, IS SUSTAINED.