B-126027, MAR. 5, 1956

B-126027: Mar 5, 1956

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE BASIS OF A MILITARY PAY ORDER. YOU STATE THAT SERGEANT KILLINGSWORTH WAS PLACED ON FLYING STATUS AS A NON-CREW MEMBER EFFECTIVE MAY 12. THAT THESE VERBAL ORDERS WERE CONFIRMED BY WRITTEN ORDERS ON AUGUST 8. AMONG THE ENCLOSURES FORWARDED WITH YOUR LETTER IS A COPY OF A COMMUNICATION (3RD INDORSEMENT) FROM THE ADJUTANT GENERAL (BY ORDER OF THE SECRETARY OF THE ARMY) TO THE COMMANDING GENERAL. WHICH IS AS FOLLOWS: "1. NON-CREW FLIGHT STATUS IS APPROVED FOR PERSONNEL ASSIGNED TO THE 30TH ENGINEER GROUP ENGAGED IN THE ALASKA MAPPING OPERATION FOR CALENDAR YEAR 1954 SUBJECT TO THE FOLLOWING: "A.

B-126027, MAR. 5, 1956

TO LIEUTENANT COLONEL C. W. BATTS, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1955, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE BASIS OF A MILITARY PAY ORDER, INCLUDED AMONG THE ENCLOSURES WITH YOUR LETTER, STATED IN FAVOR OF KENNETH H. KILLINGSWORTH, SFC, FOR INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS AS A NON-CREW MEMBER FOR THE PERIOD MAY 12, 1954, TO JUNE 20, 1954.

YOU STATE THAT SERGEANT KILLINGSWORTH WAS PLACED ON FLYING STATUS AS A NON-CREW MEMBER EFFECTIVE MAY 12, 1954, UNDER VERBAL ORDERS OF THE COMMANDING OFFICER, 30TH ENGINEER GROUP, REMAINING ON FLYING STATUS UNTIL JUNE 20, 1954, AND THAT THESE VERBAL ORDERS WERE CONFIRMED BY WRITTEN ORDERS ON AUGUST 8, 1955.

AMONG THE ENCLOSURES FORWARDED WITH YOUR LETTER IS A COPY OF A COMMUNICATION (3RD INDORSEMENT) FROM THE ADJUTANT GENERAL (BY ORDER OF THE SECRETARY OF THE ARMY) TO THE COMMANDING GENERAL, SIXTH ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DATED APRIL 12, 1954, WHICH IS AS FOLLOWS:

"1. NON-CREW FLIGHT STATUS IS APPROVED FOR PERSONNEL ASSIGNED TO THE 30TH ENGINEER GROUP ENGAGED IN THE ALASKA MAPPING OPERATION FOR CALENDAR YEAR 1954 SUBJECT TO THE FOLLOWING:

"A. NOT TO EXCEED 178 PERSONS MAY BE AUTHORIZED NON-CREW FLIGHT STATUS AT ANY TIME.

"B. GENERALLY, THIS STATUS WILL BE LIMITED TO INDIVIDUALS PERFORMING FOLLOWING DUTIES:

(1) COMMAND TECHNICAL SUPERVISION

(2) RECONNAISANCE

(3) ALTIMETER LEVELING

(4) AERIAL SURVEYORS (TO INCLUDE LOW LEVEL IDENTIFICATION PHOTOGRAPHY)

(5) CLASSIFICATION OF DETAIL

(6) AIRCRAFT MAINTENANCE PERSONNEL

"C. MEDICAL PERSONNEL WILL NOT BE AUTHORIZED NON-CREW FLIGHT STATUS.

"D. ATTENTION IS DIRECTED TO PAR 3G (2) AR 35-1200, C 4.

"E. DETERMINATION AS TO THE SPECIFIC INDIVIDUALS WHO SHALL BE PLACED ON NON-CREW FLIGHT STATUS WILL BE THE RESPONSIBILITY OF THE COMMANDING OFFICER, 30TH ENGINEER GROUP.

"2. ANY REQUEST FOR MODIFICATION OF ABOVE REQUIREMENTS WILL BE SUBMITTED TO THIS OFFICE WITH DETAILED JUSTIFICATION THEREFOR. DUE TO BUDGETARY LIMITATIONS IT IS EXTREMELY DOUBTFUL THAT ADDITIONAL PERSONNEL MAY BE AUTHORIZED NON-CREW FLIGHT STATUS.'

ALSO, THERE WAS ENCLOSED WITH YOUR LETTER A COPY OF A COMMUNICATION FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, TO THE COMMANDING GENERAL, SIXTH ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DATED AUGUST 4, 1955, WHICH IS AS FOLLOWS:

"1. AUTHORITY IS HEREBY GRANTED TO ISSUE CONFIRMATORY ORDERS FOR NON-CREW FLIGHT STATUS IN THE CASE OF ONE MEMBER PRESENTLY ON ACTIVE DUTY TO OBTAIN A DECISION AS TO WHETHER OR NOT PAYMENT OF INCENTIVE PAY IS PROPER.

"2. THE FACTS AND CIRCUMSTANCES SURROUNDING THIS TEST CASE WILL BE FURNISHED THE DISBURSING OFFICER HAVING CUSTODY OF THE MEMBER'S PAY RECORD TOGETHER WITH THE CONFIRMATORY ORDERS AND A MILITARY PAY ORDER COVERING THE MEMBER'S CLAIM FOR INCENTIVE PAY.

"3. UPON RECEIPT OF THIS CLAIM BY THE OFFICE CHIEF OF FINANCE IT WILL BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR DETERMINATION OF ITS LEGALITY AND WHETHER THE DECISION RENDERED WILL BE APPLICABLE IN THE CASES OF ALL OTHER MEMBERS WHO WERE IN IDENTICAL POSITIONS.

"4. IT IS FURTHER DESIRED THAT THE 30TH ENGINEER GROUP (TOPOGRAPHIC SURVEY) RE-EVALUATE THE REQUIREMENT FOR NON-CREW FLIGHT STATUS AND SUBMIT THEIR ANNUAL MAN-MONTH REQUIREMENT WITH CONSIDERATION GIVEN TO SEASONAL FLUCTUATIONS AND OTHER PERTINENT FACTORS IN ORDER THAT RECURRENCE OF THIS NATURE MAY BE PRECLUDED.'

THE CONFIRMING ORDERS OF AUGUST 8, 1955, REFERRED TO IN YOUR LETTER WERE ISSUED BY HEADQUARTERS SIXTH ARMY (BY COMMAND OF LIEUTENANT GENERAL YOUNG) IN THE FORM OF A LETTER (LO NR 8-63) TO THE COMMANDING OFFICER, 30TH ENGINEER GROUP. SUCH ORDERS ARE AS FOLLOWS:

"CFM VOGG 12 MAY 54: UP OF AR 35-1200 AND 3D IND AGPO-AE 220.49, DA. TAGO, WASH 25, D.C., DTD 4 AUG 55, TO LTR AMNPE-TOP 251.17, HQ 30TH ENG GP (TOPO SURV), FT WINFIELD SCOTT, CALIF., SUBJ: ,REQUEST FOR CONFIRMING ORDERS AUTH INCENTIVE PAY," DTD 2 MAR 55, THE FOL NAMED EW, 549TH ENGR CO (SURV BASE) IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLTS AS A NON-CREW MEMBER IN CONNECTION W/DY AS INDICATED. THESE ORDERS ARE EFF 12 MAY 54 AND WILL TERMINATE 20 JUN 54, UNLESS SOONER TERMINATED BY DISCH FOR ANY REASON, TRF TO ANOTHER UNIT, ASG WITHIN THE UNIT TO A DIFFERENT T/O AND E POSIT, OR TRF TO A STA OUTSIDE THE JURISDICTION OF THIS HQ.

GRADE NAME AND SN JOB POSIT OCCUPIED (TITLE AND MOS)

SFC KENNETH KILLINGSWORTH, BA18346817 TOPO SURV MOS 1230"

ON APRIL 12, 1954, THE COMMANDING GENERAL, SIXTH ARMY, WAS ADVISED BY ORDER OF THE SECRETARY OF THE ARMY THAT NOT TO EXCEED 178 PERSONS ON NON- CREW FLIGHT STATUS MIGHT BE AUTHORIZED FOR THE 30TH ENGINEER GROUP AT ANY TIME: AND THAT ANY REQUEST FOR MODIFICATION OF SUCH LIMITATION SHOULD BE SUBMITTED TO THE ADJUTANT GENERAL'S OFFICE. IN A LETTER FROM THE COMMANDING OFFICER, 30TH ENGINEER GROUP, TO THE DEPUTY POST COMMANDER, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DATED MARCH 2, 1955, IT IS STATED THAT: "THROUGHOUT THE SEASON APPROXIMATELY 178 NON-CREW MEMBERS WERE ON WRITTEN ORDERS AUTHORIZING INCENTIVE PAY.'

IT APPEARS THAT ON MAY 12, 1954, ONE MONTH AFTER THE DATE OF THE ABOVE DIRECTIVE OF APRIL 12, 1954, SOMEONE PURPORTEDLY ISSUED VERBAL ORDERS PLACING SERGEANT KILLINGSWORTH ON FLIGHT STATUS AS A NON-CREW MEMBER NOTWITHSTANDING 178 MEN OF THE 30TH ENGINEER GROUP ALREADY WERE ON FLYING DUTY UNDER WRITTEN ORDERS. THE FILE INDICATES THAT FROM MAY TO AUGUST 1954 SOME 81 OTHER ENLISTED MEN AND ONE CHIEF WARRANT OFFICER WERE SIMILARLY ORDERED TO FLIGHT DUTY BY VERBAL ORDERS NOTWITHSTANDING THE AUTHORIZED CEILING. A CERTIFICATE EXECUTED BY CAPTAIN JOHN T. MYERS, 537TH ENGINEER COMPANY, WITH RESPECT TO 20 ENLISTED MEN, STATED THAT:

"I FURTHER CERTIFY THAT COMPETENT VERBAL ORDERS FOR FLIGHT STATUS WERE NOT CONFIRMED IN WRITING BECAUSE TAG, DA 3RD INDORSEMENT TO LETTER, 30TH ENGINEER GROUP, 17 MARCH 1954, SUBJECT: ,INCENTIVE PAY FOR NON-CREW MEMBERS' READS AS FOLLOWS: "NOT TO EXCEED 178 PERSONS MAY BE AUTHORIZED NON-CREW FLIGHT STATUS AT ANY TIME," AND THESE MEN LISTED, IF PUT ON WRITTEN "FLIGHT STATUS" TO THE BEST OF MY KNOWLEDGE WOULD HAVE CAUSED THE 178 MEN CEILING TO HAVE BEEN EXCEEDED.'

SIMILAR STATEMENTS ARE CONTAINED IN CERTIFICATES EXECUTED BY FOUR OTHER OFFICERS REGARDING OTHER MEN PURPORTEDLY ORDERED TO FLIGHT DUTY BY VERBAL ORDERS DURING THE PERIOD FROM MAY TO AUGUST 1954.

IT IS OUR UNDERSTANDING THAT ON MAY 12, 1954, THE COMMANDING GENERAL, SIXTH ARMY, WAS AUTHORIZED TO ISSUE FLIGHT ORDERS TO NON-CREW MEMBERS AND THAT THE COMMANDING OFFICER, 30TH ENGINEER GROUP, WAS NOT SO AUTHORIZED. THE ORDERS OF AUGUST 8, 1955, QUOTED ABOVE, PURPORTEDLY CONFIRMED VERBAL ORDERS OF THE COMMANDING GENERAL, SIXTH ARMY. ACTUALLY, IT APPEARS FROM THE RECORD BEFORE US AND FROM YOUR LETTER, THAT ANY VERBAL ORDERS WHICH MAY HAVE BEEN ISSUED TO MEMBERS OF THE 30 ENGINEER GROUP WERE ISSUED BY THE COMMANDING OFFICER OF THAT GROUP. HENCE THE CONFIRMING ORDERS MAY NOT BE GIVEN EFFECT FOR ANY PURPOSES IN THE ABSENCE OF EVIDENCE SHOWING THAT THE COMMANDING GENERAL, SIXTH ARMY, DID ISSUE VERBAL FLIGHT ORDERS TO SERGEANT KILLINGSWORTH ON MAY 12, 1954.

MOREOVER EVEN IF THE COMMANDING GENERAL, SIXTH ARMY, DID ISSUE THE VERBAL ORDERS OF MAY 12, 1954, AS WELL AS THE CONFIRMING ORDERS OF AUGUST 8, 1955, THERE STILL WOULD BE GRAVE DOUBT AS TO SERGEANT KILLINGSWORTH'S RIGHT TO THE PAY HERE CLAIMED IN VIEW OF THE LIMITATION, IMPOSED BY THE DEPARTMENT OF THE ARMY, ON THE NUMBER OF MEN IN THE 30TH ENGINEER GROUP WHO WERE TO BE GIVEN A ,NON-CREW FLIGHT STATUS AT ANY TIME.' COMPARE 8 COMP. GEN. 207.

ACCORDINGLY, PAYMENT ON THE BASIS OF THE MILITARY PAY ORDER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.