B-133537, OCTOBER 21, 1957, 37 COMP. GEN. 265

B-133537: Oct 21, 1957

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MILITARY PERSONNEL - HAZARDOUS DUTY - FLIGHT OFFICER INJURED IN LOW PRESSURE CHAMBER - FLIGHT PAY - LOW-PRESSURE CHAMBER PAY DURING INJURY AN OFFICER WHO IS INCAPACITATED FOR FLYING DUTY AS A RESULT OF A DECOMPRESSION INJURY RECEIVED WHILE PARTICIPATING IN A LOW-PRESSURE CHAMBER TRAINING PERIOD MAY NOT BE CONSIDERED AS HAVING RECEIVED HIS INJURY AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1 (C) OF EXECUTIVE ORDER NO. 10618. LIEUTENANT BACHIK WAS DIRECTED. THAT HE WAS INCAPACITATED BECAUSE OF A DECOMPRESSION INJURY AND HAS. THERE IS NO SPECIFIC PROVISION TO ENABLE LT. LIEUTENANT BACHIK WAS GRANTED AN AERONAUTICAL RATING OF AIRCRAFT OBSERVER AND REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS.

B-133537, OCTOBER 21, 1957, 37 COMP. GEN. 265

MILITARY PERSONNEL - HAZARDOUS DUTY - FLIGHT OFFICER INJURED IN LOW PRESSURE CHAMBER - FLIGHT PAY - LOW-PRESSURE CHAMBER PAY DURING INJURY AN OFFICER WHO IS INCAPACITATED FOR FLYING DUTY AS A RESULT OF A DECOMPRESSION INJURY RECEIVED WHILE PARTICIPATING IN A LOW-PRESSURE CHAMBER TRAINING PERIOD MAY NOT BE CONSIDERED AS HAVING RECEIVED HIS INJURY AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1 (C) OF EXECUTIVE ORDER NO. 10618, TO BE ENTITLED TO FLYING PAY DURING THE PERIOD OF INCAPACITY; NOR MAY HIS ASSIGNMENT AS A PARTICIPANT IN A LOW-PRESSURE CHAMBER BE CONSIDERED AS AN ASSIGNMENT AS INSTRUCTOR-OBSERVER AS USED IN SECTION 9 (E) OF THE ORDER, TO BE ENTITLED TO INCENTIVE PAY FOR LOW-PRESSURE CHAMBER DUTY FOR A THREE-MONTH PERIOD FOLLOWING THE INJURY.

TO CAPTAIN JOHN N. CLEMENS, DEPARTMENT OF THE AIR FORCE, OCTOBER 21, 1957:

BY LETTER DATED AUGUST 13, 1957, THE ACTING VICE COMMANDER, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR LETTER OF JUNE 12, 1957, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT JOSEPH BACHIK, USAF, WITH FLYING PAY FOR THE PERIOD NOVEMBER 23, 1956, TO FEBRUARY 22, 1957, IN THE CIRCUMSTANCES SHOWN.

YOU RELATE THAT ON NOVEMBER 23, 1956, LIEUTENANT BACHIK WAS DIRECTED, AS PRINCIPAL DUTY FOR THAT DAY, TO PARTICIPATE IN A LOW PRESSURE CHAMBER TRAINING PERIOD AT JAMES CONNALLY AIR FORCE BASE, UNDER THE PROVISIONS OF AFR 50-27, AND THAT HE WAS INCAPACITATED BECAUSE OF A DECOMPRESSION INJURY AND HAS, SINCE THE ACCIDENT, BEEN PERMANENTLY SUSPENDED FROM FLYING DUTY. YOU FURTHER STATED THAT (UNDER EXISTING AIR FORCE REGULATIONS AND MANUALS, THERE IS NO SPECIFIC PROVISION TO ENABLE LT. BACHIK TO RECEIVE FLY-PAY FOR SUBSEQUENT THREE MONTH PERIOD FOLLOWING DECOMPRESSION ACCIDENT.'

BY ORDERS DATED AUGUST 13, 1952, HEADQUARTERS FLYING TRAINING AIR FORCE, WACO, TEXAS, LIEUTENANT BACHIK WAS GRANTED AN AERONAUTICAL RATING OF AIRCRAFT OBSERVER AND REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS. ACCOMPANYING THE PAPERS IS A COPY OF WHAT APPEARS TO BE A DIRECTIVE FROM THE ASSISTANT WING OPERATIONS OFFICER DATED NOVEMBER 7, 1956, AND BEARS THE HEADING PHYSIOLOGICAL TRAINING FOR PILOTS AND OBSERVERS. THE DIRECTIVE STATES THAT LIEUTENANT BACHIK AND OTHER NAMED OFFICERS "ARE SCHEDULED FOR PHYSIOLOGICAL TRAINING AT 10800 HOURS ON 23 NOVEMBER 1956, IN BUILDING 40-4, AS REQUIRED BY PARAGRAPH 4A, ATC SUPPLEMENT-1 TO AF REGULATION 50-27, DATED 7 FEBRUARY 1956. MASKS AND HELMETS WILL BE FURNISHED BY PHYSIOLOGICAL TRAINING UNIT.' ALSO ACCOMPANYING THE PAPERS IS A CERTIFICATE EXECUTED ON JULY 19, 1957, BY CAPTAIN JAMES R. EGELSTON, USAF ( MC), CERTIFYING THAT LIEUTENANT BACHIK WAS PHYSICALLY INCAPACITATED FOR FLYING DUTY AS A RESULT OF UNDERGOING SCHEDULED AND DIRECTED TRAINING IN THE LOW PRESSURE CHAMBER PURSUANT TO REQUIREMENTS OF AFR 50-27, ON NOVEMBER 23, 1956, AND THAT HE IS STILL SUSPENDED FROM FLYING DUTIES DUE TO THE NATURE OF THE REACTION. LIEUTENANT BACHIK STATES THAT WHILE HE CAN FIND NO SPECIFIC WRITTEN PROVISION FOR THREE MONTHS' FLYING PAY TO COMPENSATE FOR HIS INJURY, HE IS OF THE OPINION THAT HE IS ENTITLED TO SUCH PAY UNDER THE PROVISIONS OF PARAGRAPH 11106, AIR FORCE MANUAL 173 20.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AS AMENDED, 37 U.S.C. 235, AUTHORIZES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS AND DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER. REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY OF SECTIONS 204 AND 501 (D) OF THE ABOVE CITED 1949 ACT, 37 U.S.C. 301 (D), ARE CONTAINED IN EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10618, JUNE 28, 1955. PERTINENT PROVISIONS OF THE EXECUTIVE ORDER, AS AMENDED, ARE AS FOLLOWS:

(1) (C) 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 A 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.

(9) (E) THE TERM "DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER" SHALL BE CONSTRUED TO MEAN DUTY PERFORMED WITHIN LOW-PRESSURE CHAMBERS AT AVIATION PHYSIOLOGICAL TRAINING FACILITIES BY MEMBERS ASSIGNED TO THAT DUTY AS INSTRUCTOR-OBSERVERS.

SEC. 10. 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.

PARAGRAPH 11106, AIR FORCE MANUAL 173-20, CITED BY LIEUTENANT BACHIK IN SUPPORT OF HIS CLAIM, READS AS FOLLOWS:

ANY MEMBER WHO IS PLACED ON FLYING STATUS, OR IS REQUIRED BY COMPETENT ORDERS TO PERFORM GLIDER FLIGHTS, PARACHUTE DUTY, DEMOLITION DUTY, LOW PRESSURE CHAMBER DUTY, OR HUMAN ACCELERATION OR DECELERATION DUTY, AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, WILL BE CONSIDERED 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 THE INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY. (SEE E.O. 10152, 17 AUGUST 1950 ( AF BUL. 30, 1950), AS AMENDED BY E.O. 10618, 28 JUNE 1955.)

EXECUTIVE ORDER NO. 10152, AS AMENDED, NOT ONLY PRESCRIBES REGULATIONS RELATIVE TO THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF AVIATION DUTY, BUT ALSO PRESCRIBES REGULATIONS FOR THE PAYMENT OF INCENTIVE PAY FOR THE OTHER TYPES OF HAZARDOUS DUTY FOR WHICH SUCH PAY IS AUTHORIZED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED. SECTION 10 IS STATED MORE BROADLY THAN THE CORRESPONDING PROVISIONS IN PRIOR EXECUTIVE ORDERS, SUCH AS SECTION 10 OF EXECUTIVE ORDER NO. 9195, JULY 7, 1942, WHICH RELATED ONLY TO THE PAYMENT OF ADDITIONAL PAY FOR THE PERFORMANCE OF AVIATION DUTY. THE PROVISIONS OF PARAGRAPH 11106, AIR FORCE MANUAL 173-20, CITED BY LIEUTENANT BACHIK, MAY NOT BE CONSIDERED AS ENLARGING THE RIGHTS IN THAT RESPECT AUTHORIZED BY SECTION 10 OF THE EXECUTIVE ORDER. COMPARE 32 COMP. GEN. 530.

LIEUTENANT BACHIK'S INJURY DID NOT RESULT FROM THE PERFORMANCE OF HIS FLYING-DUTY ASSIGNMENT, BUT RESULTED FROM PARTICIPATING IN LOW-PRESSURE CHAMBER EXERCISES AT A PHYSIOLOGICAL TRAINING FACILITY. WHILE LOW PRESSURE CHAMBER EXERCISES INDIRECTLY RELATE TO THE FLIGHT PROFICIENCY OF A PILOT OR OBSERVER, THERE IS NO AUTHORITY FOR THE PAYMENT OF FLYING PAY DURING A PERIOD OF INCAPACITY ON ACCOUNT OF AN INJURY SUSTAINED IN A LOW- PRESSURE CHAMBER BY A PILOT OR OBSERVER WHO IS UNDER ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, SUCH INCAPACITY NOT BEING THE RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THE TERM AS DEFINED IN THE EXECUTIVE ORDER.

INCENTIVE PAY IS AUTHORIZED FOR DUTY PERFORMED WITHIN LOW-PRESSURE CHAMBERS AT AVIATION PHYSIOLOGICAL TRAINING FACILITIES BY MEMBERS ASSIGNED TO THAT DUTY AS INSTRUCTOR-OBSERVERS. IN THAT CONNECTION, IN CONSIDERING THE BILL H.R. 4720, 84TH CONGRESS, ST SESSION, WHICH BECAME THE CAREER INCENTIVE ACT OF 1955, 37 U.S.C. 235 (A) (10), PARTICULARLY THAT PART RELATING TO THE PAYMENT OF INCENTIVE PAY FOR DUTY IN A LOW PRESSURE CHAMBER, IT WAS STATED IN SENATE REPORT NO. 125, AT PAGE 12, THAT "THIS DUTY REFERS TO THE OFFICER OR ENLISTED MAN WHO IS ASSIGNED AS INSIDE INSTRUCTOR IN A LOW PRESSURE CHAMBER.' LIEUTENANT BACHIK WAS NOT ASSIGNED TO THAT DUTY AS AN INSTRUCTOR-OBSERVER.

ACCORDINGLY, LIEUTENANT BACHIK MAY NOT BE DEEMED, BY REASON OF THE PROVISIONS OF THE SAID SECTION 10 OF THE EXECUTIVE ORDER, TO HAVE MET THE REQUIREMENTS FOR FLYING PAY OR FOR THE INCENTIVE PAY AUTHORIZED FOR DUTY AS LOW-PRESSURE CHAMBER INSIDE OBSERVER FOR A THREE-MONTH PERIOD FOLLOWING HIS INJURY.

THE MILITARY PAY ORDER AND SUPPORTING PAPERS WILL BE RETAINED IN OUR OFFICE.