B-132773, NOVEMBER 13, 1957, 37 COMP. GEN. 322

B-132773: Nov 13, 1957

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MAY NOT HAVE THE FLIGHTS PERFORMED AFTER THE ISSUANCE OF ORDERS CONSIDERED FOR ENTITLEMENT TO HAZARDOUS DUTY PAY AT THE RATE FOR NONCREW MEMBERS FOR THE FIRST TWELVE DAYS OF THE MONTH. FOLEY WAS DESIGNATED AS AN AVIATION MEDICAL EXAMINER ON NOVEMBER 22. HE WAS ISSUED FLIGHT ORDERS FOR THE PERIOD JULY 1. BOTH FLIGHT ORDERS STATED THAT HE WAS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS A NONCREW MEMBER. COLONEL FOLEY WAS GRANTED AN AERONAUTICAL RATING OF FLIGHT SURGEON AND REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IN SUCH RATING. THAT IS. SINCE NO FLYING TIME WAS LOGGED IN FEBRUARY PRIOR TO THE 13TH. YOU ASK WHETHER COLONEL FOLEY IS ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY AS AN AVIATION MEDICAL OFFICER (NONCREW MEMBER) DURING THE PERIOD FEBRUARY 1-12.

B-132773, NOVEMBER 13, 1957, 37 COMP. GEN. 322

MILITARY PERSONNEL - PAY - AVIATION DUTY - NONCREW MEMBER STATUS CHANGED TO CREW MEMBERS STATUS AN AVIATION MEDICAL OFFICER WHO DID NOT PARTICIPATE IN ANY AERIAL FLIGHTS AS A NONCREW MEMBER DURING THE FIRST TWELVE DAYS OF THE MONTH PRIOR TO RECEIPT OF ORDERS, WHICH CHANGED HIS RATING TO FLIGHT SURGEON AND REQUIRED FREQUENT AND REGULAR FLIGHT PARTICIPATION AS A CREW MEMBER, MAY NOT HAVE THE FLIGHTS PERFORMED AFTER THE ISSUANCE OF ORDERS CONSIDERED FOR ENTITLEMENT TO HAZARDOUS DUTY PAY AT THE RATE FOR NONCREW MEMBERS FOR THE FIRST TWELVE DAYS OF THE MONTH; HOWEVER, HAZARDOUS DUTY PAY AS A CREW MEMBER MAY BE ALLOWED FOR THE BALANCE OF THE MONTH FOLLOWING RECEIPT OF ORDERS.

TO CAPTAIN T. C. CRABFELDER, JR., DEPARTMENT OF THE AIR FORCE, NOVEMBER 13, 1957:

YOUR LETTER DATED MAY 27, 1957, FORWARDED ON JULY 11, 1957, BY HEADQUARTERS, AIR FORCE FINANCE CENTER, REQUESTS AN ADVANCE DECISION REGARDING THE ELIGIBILITY OF A FLIGHT SURGEON TO RECEIVE INCENTIVE PAY FOR HAZARDOUS DUTY UNDER THE CIRCUMSTANCES SET FORTH BELOW.

LIEUTENANT COLONEL FRANCIS E. FOLEY WAS DESIGNATED AS AN AVIATION MEDICAL EXAMINER ON NOVEMBER 22, 1955, AND PLACED ON FLYING STATUS UNTIL JUNE 30, 1956, BY ORDERS OF JANUARY 6, 1956. ON JUNE 25, 1956, HE WAS ISSUED FLIGHT ORDERS FOR THE PERIOD JULY 1, 1956, TO JUNE 30, 1957. BOTH FLIGHT ORDERS STATED THAT HE WAS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS A NONCREW MEMBER. BY COMPETENT ORDERS DATED FEBRUARY 6, 1957, COLONEL FOLEY WAS GRANTED AN AERONAUTICAL RATING OF FLIGHT SURGEON AND REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IN SUCH RATING; THAT IS, AS A CREW MEMBER. AFTER RECEIVING THESE ORDERS ON FEBRUARY 13, 1957, HE PERFORMED TWO FLIGHTS IN THAT MONTH TOTALING 9 HOURS AND 10 MINUTES. SINCE NO FLYING TIME WAS LOGGED IN FEBRUARY PRIOR TO THE 13TH, YOU ASK WHETHER COLONEL FOLEY IS ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY AS AN AVIATION MEDICAL OFFICER (NONCREW MEMBER) DURING THE PERIOD FEBRUARY 1-12, 1957, BASED ON FLIGHTS PERFORMED IN FEBRUARY AFTER THAT PERIOD AS A FLIGHT SURGEON (CREW MEMBER).

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 235, PROVIDES FOR TWO RATES OF INCENTIVE PAY FOR HAZARDOUS DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT, A MEMBER'S RIGHT TO SUCH PAY DEPENDING ON WHETHER HE PERFORMS HIS DUTY AS A "CREW MEMBER" OR "NOT AS A CREW MEMBER.' OF THE TWELVE ITEMS OF HAZARDOUS DUTY ENUMERATED, 37 U.S.C. 235 (A), ONLY ITEMS ONE AND THREE INVOLVE FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS. ITEM ONE CONCERNS SUCH DUTY AS A CREW MEMBER WHILE ITEM 3 DEALS WITH NONCREW MEMBERS. FOR HAZARDOUS DUTY AS PRESCRIBED IN ITEM (1) (THAT IS, AS A CREW MEMBER) PAY AT CERTAIN SPECIFIED RATES IS AUTHORIZED. 37 U.S.C. 235 (B). THE RATE OF PAY FOR HAZARDOUS DUTY AS PRESCRIBED IN ITEM (3) (THAT IS, AS A NONCREW MEMBER) IS SET FORTH AS FOLLOWS, 37 U.S.C. 235 (C):

OFFICERS AND ENLISTED PERSONS OF THE UNIFORMED SERVICES WHO ARE QUALIFIED FOR THE INCENTIVE PAY AUTHORIZED UNDER SUBSECTION (A) OF THIS SECTION ARE ENTITLED TO BE PAID AT THE RATE OF $110 AND $55 PER MONTH, RESPECTIVELY, FOR THE PERFORMANCE OF ANY HAZARDOUS DUTY DESCRIBED IN CLAUSES (3) TO (13) OF SUBSECTION (A) OF THIS SECTION. ( ITALICS SUPPLIED.)

WHILE BOTH CREW MEMBERS AND NONCREW MEMBERS MUST MEET THE SAME MINIMUM FLIGHT REQUIREMENTS FOR PAY PURPOSES ( EXECUTIVE ORDER NO. 10152 DATED AUGUST 17, 1950) THE CHARACTER OF THE FLIGHTS REQUIRED IS NOT THE SAME. THE LAW MAKES NO PROVISION FOR COUNTING HAZARDOUS DUTY. THE DUTY NECESSARY TO QUALIFY FOR INCENTIVE PAY AS A NONCREW MEMBER IS DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS AS A NONCREW MEMBER AND SINCE COLONEL FOLEY PERFORMED NO FLIGHTS IN FEBRUARY AS A NONCREW MEMBER, HE IS NOT ENTITLED TO INCENTIVE PAY FOR HAZARDOUS DUTY FROM FEBRUARY 1 TO 12, 1957, THE PERIOD DURING WHICH HE WAS A NONCREW MEMBER. HE IS ENTITLED TO INCENTIVE PAY FOR THE MONTH OF FEBRUARY AT THE RATE PRESCRIBED IN 37 U.S.C. 235 (B) ONLY FOR THE PERIOD FEBRUARY 13 TO 28, 1957. SEE GENERALLY 24 COMP. GEN. 501 AND 25 ID. 648.