B-133619, NOV. 6, 1957

B-133619, NOV. 6, 1957

TO MAJOR H. G. LONDON, USAF, THROUGH DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE:

IN YOUR LETTER OF JULY 3, 1957, FORWARDED HERE BY HEADQUARTERS, AIR FORCE FINANCE CENTER, DENVER, COLORADO, WITH LETTER DATED AUGUST 21, 1957, YOU REQUEST DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON THE ATTACHED MILITARY PAY ORDER IN FAVOR OF TECHNICAL SERGEANT SAMUEL SILVER, USAF, FOR FLYING PAY COVERING THE PERIOD FROM JANUARY 1 TO FEBRUARY 17, 1957, WHILE HE WAS STATIONED AT SHEPPARD AIR FORCE BASE, TEXAS.

PARAGRAPH 3 OF AERONAUTICAL ORDERS NO. 43 OF HEADQUARTERS, 12TH AIR FORCE (USAFE), DATED JULY 29, 1954, PROVIDED THAT SERGEANT SILVER WAS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLYING AS A CREW MEMBER FOR AN INDEFINITE PERIOD UNDER THE PROVISIONS OF PARAGRAPHS 5A AND 8A OF AIR FORCE REGULATIONS NO. 39-47, AND THAT THE DUTY TO BE PERFORMED WAS ESSENTIAL TO ACCOMPLISH THE MISSION OF THE AIRCRAFT ASSIGNED. IT IS INDICATED THAT SUCH ASSIGNMENT WAS AS A CREW MEMBER SPECIALTY 60153/33, AIRCRAFT LOADMASTER. YOU STATE THAT PRIOR TO THE AIRMAN'S ARRIVAL AT SHEPPARD AIR FORCE BASE HE HAD MET FLIGHT REQUIREMENTS AND WAS PAID FLYING PAY THROUGH DECEMBER 31, 1956. ALSO, YOU STATE THAT AFTER HIS ARRIVAL, AND IN THE ABSENCE OF SUSPENSION ORDERS, HE WAS "PERMITTED" TO FLY AND PERFORMED SUFFICIENT FLIGHTS ON FEBRUARY 16 AND 17 TO QUALIFY FOR FLYING PAY FOR THE PERIOD IN QUESTION, THE FLIGHT REPORT AND MAINTENANCE RECORD, DD FORM 781-1, SHOWING THAT HE HAD LOGGED LOADMASTER FLYING DUTIES ON THOSE DATES. UNDER ORDERS OF HEADQUARTERS, 3750TH TECHNICAL TRAINING WING (ATC) AND SHEPPARD AIR FORCE BASE, DATED FEBRUARY 25, 1957, AS AMENDED BY ORDERS OF THE SAME COMMAND DATED MARCH 29, 1957, CONFIRMING VERBAL ORDERS OF FEBRUARY 18, 1957, SERGEANT SILVER WAS SUSPENDED FROM FLYING STATUS FOR THE REASON THAT "AIRMAN IS NOT REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT.'

YOU QUESTION THE LEGALITY OF THE PROPOSED PAYMENT ON THE BASIS THAT MANNING DOCUMENTS AT SHEPPARD AIR FORCE BASE DO NOT AUTHORIZE AN AIRCRAFT LOADMASTER SPECIALTY, THAT INVESTIGATION THERE FAILED TO SHOW THAT THE FLIGHTS PERFORMED "WERE ESSENTIAL TO THE ASSIGNED MISSION AND/OR OPERATION OF THE AIRCRAFT," AND BECAUSE SERGEANT SILVER HAD NO ASSIGNED DUTIES ABOARD THE AIRCRAFT FOR WHICH HE LOGGED FLYING TIME.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AUTHORIZES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, WHEN REQUIRED BY COMPETENT ORDERS. SECTION 3 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, ISSUED UNDER THAT AUTHORITY, PROVIDES THAT EACH MEMBER REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, OTHER THAN GLIDER FLIGHTS, SHALL MAKE THE FLIGHTS REQUIRED AS A CREW MEMBER OR AS A NON-CREW MEMBER AS DIRECTED BY COMPETENT AUTHORITY, DETERMINATIONS AS TO WHAT CONSTITUTES DUTY AS A CREW MEMBER AND DUTY AS A NON-CREW MEMBER AS DIRECTED BY COMPETENT AUTHORITY, DETERMINATIONS AS TO WHAT CONSTITUTES DUTY AS A CREW MEMBER AND DUTY AS A NON-CREW MEMBER TO BE MADE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. SECTION 4 PRESCRIBES MINIMUM FLIGHT REQUIREMENTS THAT MUST BE MET, UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, TO QUALIFY FOR FLIGHT PAY, AND SECTION 12 AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT WITH THE EXECUTIVE ORDER AS ARE DEEMED NECESSARY OR DESIRABLE FOR CARRYING OUT THE REGULATIONS CONTAINED IN THAT ORDER.

UNDER THE PROVISIONS OF THE CITED EXECUTIVE ORDER A MEMBER IS ENTITLED TO INCENTIVE PAY WHEN AS A CONSEQUENCE OF COMPETENT ORDERS REQUIRING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS HE PERFORMS SUFFICIENT FLIGHTS, EITHER AS A CREW MEMBER OR NON-CREW MEMBER AS DETERMINED BY ADMINISTRATIVE REGULATIONS AND DIRECTED BY COMPETENT AUTHORITY, TO MEET THE REQUIREMENTS SET FORTH IN SECTION 4. PARAGRAPH 2 OF AIR FORCE REGULATION 39-47, DATED MARCH 8, 1955, PROVIDES THAT PAYMENT OF FLYING PAY IS RESTRICTED TO "AIRMEN PERFORMING DUTIES NECESSARY TO OPERATION OF THE AIRCRAFT IN FLIGHT" AND "OTHER AIRMEN (EXCLUDING PASSENGERS) REQUIRED TO FLY WITH THE AIRCRAFT ON ITS ASSIGNED MISSION.' PARAGRAPH 4 OF THE SAME REGULATION DEFINES THE TERM "CREW MEMBER" TO BE ,ANY AIRMAN WHOSE ORDERS TO FLY FREQUENTLY AND REGULARLY SPECIFY THAT HIS DUTIES ARE ESSENTIAL TO THE MISSION OF THE AIRCRAFT.' THE INTENT OF SUCH REGULATIONS IS THAT, TO QUALIFY FOR FLIGHT PAY, AN AIRMAN REQUIRED TO FLY AS A CREW MEMBER SHOULD PERFORM SUFFICIENT FLIGHTS PURSUANT TO COMPETENT ORDERS IN A CREW MEMBER CAPACITY NECESSARY TO THE OPERATION OF THE AIRCRAFT.

WHILE IT APPEARS THAT SERGEANT SILVER WAS UNDER ORDERS TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AS A CREW MEMBER AND DID PERFORM FLIGHTS OF SUFFICIENT DURATION TO MEET THE QUANTITATIVE REQUIREMENTS OF SECTION 4 OF THE EXECUTIVE ORDER, YOUR STATEMENT THAT HE HAD NO ASSIGNED DUTIES ABOARD THE AIRCRAFT FOR WHICH HE LOGGED FLYING TIME SUGGESTS THAT HE DID NOT PERFORM DUTY NECESSARY TO THE OPERATION OF THE AIRCRAFT IN FLIGHT AND THAT HE WAS NOT REQUIRED TO FLY WITH THE AIRCRAFT ON ITS ASSIGNED MISSION. HENCE, THE INFORMATION FURNISHED BY YOU INDICATES THAT THE FLIGHTS IN QUESTION WERE NOT PERFORMED UNDER THE QUALIFYING CIRCUMSTANCES CONTEMPLATED BY THE REGULATIONS, AND IT IS CONCLUDED THAT SERGEANT SILVER'S RIGHT TO FLYING PAY ON THE BASIS OF HIS FLIGHTS ON FEBRUARY 16 AND 17, 1957, IS NOT ESTABLISHED.

ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT ON THE MILITARY PAY ORDER IS NOT AUTHORIZED.