B-140639, NOV. 13, 1959

B-140639, NOV. 13, 1959

TO COLONEL R. P. MUHLBACH, USAF, CHIEF, ALLOTMENT AND RETIRED PAY DIVISION, HEADQUARTERS, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1959, REQUESTING A DECISION BY THIS OFFICE AS TO THE PROPRIETY OF CREDITING THE ACCOUNT OF AIRMAN SECOND CLASS ARCHIE T. BOURG, JR., AF 18485513, WITH FLYING PAY AFTER APRIL 17, 1959. YOUR REQUEST WAS ALLOTED AIR FORCE REQUEST NO. 448 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE.

AIRMAN BOURG WAS DESIGNATED A CREW MEMBER AND REQUIRED TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS BY AERONAUTICAL ORDERS NO. 8, DATED APRIL 30, 1958, OF HEADQUARTERS 6900TH SECURITY WING (USAFSS) USAF, EFFECTIVE MAY 1, 1958. THE DATE OF TERMINATION OF FLIGHT STATUS FOR AIRMAN BOURG WAS SPECIFIED AS APRIL 17, 1959, APPARENTLY BASED UPON THE ANTICIPATED DATE OF HIS RETURN FROM OVERSEAS. AIRMAN BOURG WAS REPORTED MISSING IN COMMUNIST TERRITORY ON SEPTEMBER 2, 1958, AND REMAINS IN A MISSING STATUS. HIS MILITARY PAY RECORD HAS BEEN MAINTAINED UNDER THE PROVISIONS OF SECTION 2 (A) OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED BY THE ACTS OF JULY 1, 1944, 58 STAT. 679, AND AUGUST 29, 1957, 71 STAT. 491, 50 U.S.C. APP. 1002 (A).

YOU PRESENT THE QUESTION OF WHETHER THE EXPIRATION OF AIRMAN BOURG'S FLIGHT STATUS ON APRIL 17, 1959, AS PROVIDED IN AERONAUTICAL ORDERS NO. 8, TERMINATES THE MISSING MEMBER'S RIGHT TO INCENTIVE PAY OR WHETHER THE SPECIFIC INCLUSION OF INCENTIVE PAY IN THE MISSING PERSONS ACT, AS AMENDED, NEGATES THE FLYING STATUS REQUIREMENT.

SECTION 2 (A) OF THE MISSING PERSONS ACT PROVIDES IN PERTINENT PART AS FOLLOWS:

"ANY PERSON WHO IS IN THE ACTIVE SERVICE * * * AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE * * * SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED OR DETERMINED TO BE IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME BASIC PAY, SPECIAL PAY, INCENTIVE PAY * * * TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER

SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED BY THE ACT OF JULY 1, 1944, 58 STAT. 680, 50 U.S.C. APP. 1009, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. * * * DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE.

UNDER THE ABOVE-QUOTED PROVISIONS OF THE MISSING PERSONS ACT, THE QUESTION OF AIRMAN BOURG'S ENTITLEMENT TO INCENTIVE PAY WHILE IN A MISSING STATUS, UNDER FLIGHT ORDERS WHICH EXPIRE DURING HIS MISSING STATUS, IS ONE FOR CONSIDERATION AND DETERMINATION BY THE SECRETARY OF THE AIR FORCE OR HIS DULY DESIGNATED SUBORDINATE.

YOU MAY BE ADVISED, HOWEVER, THAT CONTINUATION OF CREDITS OF INCENTIVE PAY FOR HAZARDOUS DUTY UNDER THE PROVISIONS OF SECTION 2 (A) OF THE MISSING PERSONS ACT FOR THE PERIOD SUBSEQUENT TO APRIL 17, 1959, THE DATE ON WHICH THE MEMBER'S FLYING ORDERS EXPIRED, WOULD APPEAR PROPER, SINCE HE WAS ENTITLED TO CREDIT FOR SUCH INCENTIVE PAY AT THE BEGINNING OF HIS PERIOD OF ABSENCE. WHILE HIS RIGHT TO INCENTIVE PAY WOULD HAVE BEEN TERMINATED ON THE DATE INDICATED IN THE ORDERS IF HE HAD NOT BEEN IN A MISSING STATUS ON THAT DATE, SUCH EXPIRATION OF HIS ORDERS, LIKE EXPIRATION OF TERM OF ENLISTMENT OR EXPIRATION OF THE PERIOD FOR WHICH ORDERED TO ACTIVE DUTY, DOES NOT AFFECT THE MEMBER'S RIGHT TO PAY DURING THE PERIOD HE IS MISSING. SUCH A SITUATION IS TO BE DISTINGUISHED FROM THE CIRCUMSTANCES CONSIDERED IN 23 COMP. GEN. 895 IN WHICH A MEMBER WHO WAS ENTITLED TO ALLOWANCES ON ACCOUNT OF A DEPENDENT WHEN HIS MISSING STATUS BEGAN WAS CONSIDERED NOT ENTITLED TO CREDIT OF ALLOWANCES ON THAT BASIS AFTER THE DEATH OF HIS DEPENDENT FOR THE REMAINDER OF THE PERIOD HE WAS MISSING. SUCH A CHANGE IN THE DEPENDENCY STATUS OF A MEMBER BEING UNRELATED TO HIS DUTY OR HIS MISSING STATUS WAS CONSIDERED TO REQUIRE APPROPRIATE ADJUSTMENT IN THE MEMBER'S ALLOWANCES NOTWITHSTANDING THE FACT THAT HE WAS IN A MISSING STATUS WHEN THAT CHANGE OCCURRED. IT SHOULD BE NOTED THAT THAT DECISION WAS RENDERED PRIOR TO THE AMENDMENT OF SECTION 9 OF THE MISSING PERSONS ACT BY THE ACT OF JULY 1, 1944, 58 STAT. 680.