B-140407, AUG. 28, 1959

B-140407: Aug 28, 1959

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SP/4 US 55 608 630: REFERENCE IS MADE TO YOUR LETTER DATED JULY 16. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NO WRITTEN ORDERS BY COMPETENT AUTHORITY WERE ISSUED TO PLACE YOU IN FLIGHT STATUS PRIOR TO NOVEMBER 17. THE RECORD INDICATES THAT YOU WERE ORALLY PLACED UPON NON-CREW MEMBER FLIGHT DUTY EFFECTIVE SEPTEMBER 11. WAS GIVEN THAT THIS ORDER WAS TO BE CONFIRMATORY OF A PRIOR STATUS AND NO PROVISION WAS INCLUDED TO COVER. REQUEST FOR CONFIRMATORY FLIGHT STATUS ORDERS WAS MADE BY THE ACTING CHIEF OF THE OPTICS DIVISION CS AND AD. THIS REQUEST WAS DENIED BY THE ASSISTANT ADMINISTRATIVE OFFICER FOR THE DIRECTOR CDEV. MEMORANDUM 35 WAS CONSIDERED TO PRECLUDE ISSUANCE OF CONFIRMATORY OR RETROACTIVE FLIGHT DUTY ORDERS WHEN TO DO SO WOULD CAUSE THE TOTAL NUMBER OF PERSONS SO ASSIGNED TO EXCEED THE AUTHORIZED NUMBER DURING THE PERIOD INVOLVED.

B-140407, AUG. 28, 1959

TO WILLIAM W. CONNELL, SP/4 US 55 608 630:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1959, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 29, 1959, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR FLIGHT DUTY FOR THE PERIOD OF SEPTEMBER 11 THROUGH NOVEMBER 16, 1958, INCIDENT TO YOUR MILITARY SERVICE. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NO WRITTEN ORDERS BY COMPETENT AUTHORITY WERE ISSUED TO PLACE YOU IN FLIGHT STATUS PRIOR TO NOVEMBER 17, 1958.

THE RECORD INDICATES THAT YOU WERE ORALLY PLACED UPON NON-CREW MEMBER FLIGHT DUTY EFFECTIVE SEPTEMBER 11, 1958, AS A REPLACEMENT IN TESTING ACTIVITIES. ORDERS DATED NOVEMBER 17, 1958, TERMINATED THE FLIGHT STATUS OF CERTAIN OTHER ENLISTED MEN AND PLACED YOU IN A NON CREW MEMBER FLIGHT STATUS EFFECTIVE THAT DATE. NO INDICATION, WHETHER BY ERROR OR OTHERWISE, WAS GIVEN THAT THIS ORDER WAS TO BE CONFIRMATORY OF A PRIOR STATUS AND NO PROVISION WAS INCLUDED TO COVER, RETROACTIVELY, PRIOR FLIGHT DUTY.

BY LETTER OF JANUARY 7, 1959, REQUEST FOR CONFIRMATORY FLIGHT STATUS ORDERS WAS MADE BY THE ACTING CHIEF OF THE OPTICS DIVISION CS AND AD. BY ENDORSEMENT OF JANUARY 12, 1959, THIS REQUEST WAS DENIED BY THE ASSISTANT ADMINISTRATIVE OFFICER FOR THE DIRECTOR CDEV, ON THE AUTHORITY OF PARAGRAPH 3A (3), MEMORANDUM 35, HEADQUARTERS, U.S. ARMY ELECTRONIC PROVING GROUND, FORT HUACHUCA. MEMORANDUM 35 WAS CONSIDERED TO PRECLUDE ISSUANCE OF CONFIRMATORY OR RETROACTIVE FLIGHT DUTY ORDERS WHEN TO DO SO WOULD CAUSE THE TOTAL NUMBER OF PERSONS SO ASSIGNED TO EXCEED THE AUTHORIZED NUMBER DURING THE PERIOD INVOLVED. NO CONFIRMATORY ORDERS HAVE BEEN ISSUED AND IT DOES NOT APPEAR THAT ORDERS WERE ISSUED AT ANY TIME BY COMPETENT AUTHORITY TO PLACE YOU ON FLIGHT STATUS DURING THE PERIOD OF SEPTEMBER 11 TO NOVEMBER 16, 1958.

YOU STATE THAT YOU ARE AWARE THAT NO OFFICIAL DOCUMENT EXISTS TO INDICATE THAT YOU WERE ORDERED TO PERFORM FLIGHT DUTY AND SUBMIT AS PROOF OF ORAL ORDERS A CERTIFICATE SIGNED BY JEROME F. MCCARTHY, FIRST LIEUTENANT, SIGNAL CORPS, CHIEF, INFRARED BRANCH, CS AND AD, TO THE EFFECT THAT HE ORDERED YOU TO PERFORM FLIGHT DUTY ON SEPTEMBER 11, 1958, TO REPLACE PRIVATE FIRST CLASS JOHN HUGHES. IN A PREVIOUS CERTIFICATE LIEUTENANT MCCARTHY STATED THAT A DISPOSITION FORM REQUESTING NON-CREW MEMBER FLYING STATUS FOR YOU EFFECTIVE SEPTEMBER 11, 1958, WAS INITIATED ON THAT DATE, BUT DUE TO ADMINISTRATIVE ERROR YOU WERE NOT PLACED ON FLYING STATUS UNTIL NOVEMBER 17, 1958. YOU ALSO OFFER EVIDENCE THAT YOU PARTICIPATED IN FLIGHTS IN THE MONTHS OF SEPTEMBER, OCTOBER AND NOVEMBER.

AUTHORITY FOR THE PAYMENT OF INCENTIVE PAY FOR FLIGHT DUTY IS PROVIDED BY SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, WHICH IN PERTINENT PART IS AS FOLLOWS:

"SEC. 204. (A) SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES:

"/1) DUTY AS A CREW MEMBER AS DETERMINED BY THE SECRETARY CONCERNED, INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT:

"/3) DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS NOT AS A CREW MEMBER PURSUANT TO PART (1) OF THIS SUBSECTION * * *.'

PARAGRAPH 2-51, AR 37-104, PROVIDES THAT AN OFFICER OR ENLISTED MEMBER ENTITLED TO RECEIVE BASIC PAY, WHO HAS BEEN PLACED ON FLYING STATUS, IS ENTITLED TO RECEIVE BASIC PAY FOR THE PERFORMANCE OF DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS. FLYING STATUS IS DEFINED IN PARAGRAPH 2-52 AS MEANING THE STATUS OF A MEMBER WHO HAS RECEIVED COMPETENT ORDERS STATING THAT HE WILL BE REQUIRED TO PARTICIPATE IN FREQUENT AND REGULAR AERIAL FLIGHTS FOR A PERIOD OF TIME OR UNTIL FURTHER ORDERS. "AN INDIVIDUAL ORDER OR SERIES OF ORDERS REQUIRING A MEMBER TO PERFORM AERIAL FLIGHT WILL NOT BE EFFECTIVE TO CONFER FLYING STATUS.' PARAGRAPH 2-54 DEFINES COMPETENT ORDERS AS ORDERS ISSUED BY THE SECRETARY OF THE ARMY OR HIS DESIGNEE AND DELEGATES AUTHORITY TO ISSUE ORDERS FOR NON-CREW MEMBERS TO THE CHIEF OF STAFF, UNITED STATES ARMY OR SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE AND COMMANDING GENERALS OF MAJOR COMMANDS.

PARAGRAPH 3 OF ARMY REGULATION 95-15, DATED NOVEMBER 27, 1956, PROVIDES IN PERTINENT PART AS FOLLOWS:

"PARA. 3. WHO MAY BE ORDERED TO MAKE AERIAL FLIGHTS. A. ANY OFFICER, WARRANT OFFICER, OR ENLISTED INDIVIDUAL MAY BE ORDERED TO MAKE OCCASIONAL AERIAL FLIGHTS IN MILITARY AIRCRAFT BY AN OFFICER HAVING COMMAND JURISDICTION OVER THE INDIVIDUAL CONCERNED, WHEN SUCH FLIGHTS ARE REQUIRED IN THE PERFORMANCE OF A MILITARY DUTY.

"C. PERFORMANCE OF AERIAL FLIGHT AS INDICATED IN A AND B ABOVE DOES NOT IN ITSELF ENTITLE SUCH PERSONNEL TO HAZARDOUS DUTY PAY.

"D. COMMANDERS WILL NOT REQUIRE PERSONNEL UNDER THEIR COMMAND TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS, EXCEPT AS PROVIDED IN B ABOVE, UNLESS SUCH PERSONNEL ARE PLACED ON FLYING STATUS.'

UNDER THE QUOTED STATUTE THE RIGHT TO INCENTIVE PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS TO PERFORM SUCH DUTY AND THE ACTUAL PERFORMANCE THEREOF. B-129455, NOVEMBER 23, 1956. WHILE IT IS CLEAR THAT YOU ACTUALLY PERFORMED SUCH DUTIES PURSUANT TO VERBAL ORDERS OF LIEUTENANT MCCARTHY, NO ORDERS ISSUED BY A COMPETENT AUTHORITY PRESENTLY EXIST UPON WHICH TO BASE PAYMENT OF YOUR CLAIM. THE CERTIFICATES SUBMITTED BY YOU ARE NOT SUFFICIENT EVIDENCE OF YOUR FLIGHT PAY STATUS, SINCE IT APPEARS THAT LIEUTENANT MCCARTHY WAS WITHOUT AUTHORITY TO PLACE YOU IN THAT STATUS AS EVIDENCED BY HIS REQUESTS THAT YOU BE PLACED IN FLIGHT STATUS. MOREOVER, SUBSEQUENT ACTION OF COMPETENT AUTHORITIES HAS RESULTED IN A REFUSAL TO ISSUE CONFIRMATORY ORDERS. IN THE ABSENCE OF COMPETENT ORDERS PLACING YOU IN A FLYING STATUS DURING THE PERIOD INVOLVED, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, OUR SETTLEMENT OF JUNE 29, 1959, IS AFFIRMED AS CORRECT AND YOUR CLAIM FOR ADDITIONAL INCENTIVE PAY FOR FLIGHT DUTY IS AGAIN DENIED.