B-140672, OCT. 28, 1959

B-140672: Oct 28, 1959

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49246A: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. ON THE BASIS THAT THE THE REQUIREMENTS FOR JULY AND AUGUST 1957 WERE NOT MET AND NO FLIGHTS WERE PERFORMED IN SEPTEMBER 1957. YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT HEADQUARTERS AIR COMMAND AND STAFF COLLEGE. DELAY ENROUTE WAS AUTHORIZED CHARGEABLE AS ORDINARY LEAVE PROVIDED IT DID NOT INTERFERE WITH REPORTING ON THE DATE SPECIFIED AND PROVIDED YOU HAD SUFFICIENT ACCRUED LEAVE. THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY TO THE 2225TH PERSONNEL PROCESSING GROUP WAS AUGUST 1. WAS AUGUST 16. IN CONSIDERATION OF YOUR CLAIM IT IS PRESUMED THAT YOU MET FLIGHT REQUIREMENTS FOR A FULL CALENDAR MONTH IN JUNE 1957.

B-140672, OCT. 28, 1959

TO MAJOR EUGENE E. RICE, USAF, 49246A:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1959, REQUESTING RECONSIDERATION OF CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 7, 1958, WHICH DISALLOWED YOUR CLAIM FOR FLIGHT PAY FOR THE MONTHS OF JULY, AUGUST, AND SEPTEMBER 1957, ON THE BASIS THAT THE THE REQUIREMENTS FOR JULY AND AUGUST 1957 WERE NOT MET AND NO FLIGHTS WERE PERFORMED IN SEPTEMBER 1957.

IT APPEARS FROM THE RECORD IN THIS OFFICE THAT BY SPECIAL ORDERS NO. 56, DATED APRIL 24, 1957, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT HEADQUARTERS AIR COMMAND AND STAFF COLLEGE, MAXWELL AIR FORCE BASE, ALABAMA, FOR INTERMEDIATE ASSIGNMENT TO DETACHMENT NO. 1, 2225TH PERSONNEL PROCESSING GROUP (CONTINENTAL AIR COMMAND), FORT HAMILTON, NEW YORK, AND FOR ULTIMATE ASSIGNMENT TO HEADQUARTERS, 17TH AIR FORCE, APO 231, NEW YORK, NEW YORK. DELAY ENROUTE WAS AUTHORIZED CHARGEABLE AS ORDINARY LEAVE PROVIDED IT DID NOT INTERFERE WITH REPORTING ON THE DATE SPECIFIED AND PROVIDED YOU HAD SUFFICIENT ACCRUED LEAVE. THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY TO THE 2225TH PERSONNEL PROCESSING GROUP WAS AUGUST 1, 1957, AND THE EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY TO HEADQUARTERS, 17TH AIR FORCE, WAS AUGUST 16, 1957. PURSUANT TO THE ORDERS YOU DEPARTED ON JUNE 14, 1957, FOR YOUR HOME ADDRESS ON DELAY ENROUTE AWAITING PORT CALL.

IN CONSIDERATION OF YOUR CLAIM IT IS PRESUMED THAT YOU MET FLIGHT REQUIREMENTS FOR A FULL CALENDAR MONTH IN JUNE 1957, AND YOU STATE THAT ON JULY 8, 1957, YOU FLEW 6 HOURS AND 30 MINUTES AT JAMES CONNALLY AIR FORCE BASE, TEXAS; THAT ON AUGUST 6, 1957, YOU FLEW 5 HOURS AND 5 MINUTES AT JAMES CONNALLY AIR FORCE BASE, TEXAS, BUT THAT NO FLIGHTS WERE PERFORMED IN SEPTEMBER 1957.

ON AUGUST 19, 1957, YOU REPORTED FOR DUTY AT FORT HAMILTON, NEW YORK, WHERE YOU WERE PLACED ON TEMPORARY DUTY UNTIL YOUR DEPARTURE FROM THE ZONE OF INTERIOR, SEPTEMBER 5, 1957, FOR OVERSEAS DUTY. YOU ALSO STATE THAT YOU PERFORMED OFFICIAL TRAVEL DURING AUGUST AND SEPTEMBER 1957, AND THAT DURING OCTOBER YOU PARTICIPATED IN AERIAL FLIGHTS ACCUMULATING A TOTAL OF 21 HOURS.

SINCE IT IS ACKNOWLEDGED THAT THE AERIAL FLIGHTS PERFORMED ON JULY 8, 1957, AND AUGUST 6, 1957, TOOK PLACE WHILE YOU WERE ON DELAY ENROUTE CHARGEABLE AS LEAVE AND AERIAL FLIGHTS PERFORMED WHILE ON LEAVE CANNOT BE COUNTED FOR PAY PURPOSES, THE REQUISITE FLIGHT REQUIREMENTS FOR ENTITLEMENT TO INCENTIVE PAY WERE NOT MET THEREBY. THEREFORE, BECAUSE NO FLIGHTS WERE PERFORMED IN SEPTEMBER, YOUR CLAIM IN EFFECT NOW POSES THE QUESTION AS TO WHETHER OR NOT A RIGHT IS GIVEN TO MAKE UP FLIGHT DEFICIENCIES AFTER EXPIRATION OF THE THREE-MONTH GRACE PERIOD FIXED BY SECTION 4 OF EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 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. REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN EXECUTIVE ORDER 10152, AUGUST 17, 1950. SECTION 4 OF THE EXECUTIVE ORDER 15 F.R. 5489) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, OTHER THAN GLIDER FLIGHTS, SHALL BE REQUIRED TO MEET THE FOLLOWING MINIMUM FLIGHT REQUIREMENTS, EXCEPT AS OTHERWISE PROVIDED IN SECTION 10 HEREOF, IN ORDER TO BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY.

"/A) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949:

"/1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT.

"/2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

"/3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 12 HOURS OF AERIAL FLIGHT.'

SECTION 12 OF EXECUTIVE ORDER 10152 PROVIDES:

"SEC. 12 THE SECRETARIES CONCERNED ARE HEREBY AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT HEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THESE REGULATIONS, AND SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE.'

PARAGRAPH 11105A, AIR FORCE MANUAL 173-20 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/1) MEMBERS ON FLYING STATUS WHO PERFORM THE REQUIRED FLIGHTS, AND ARE OTHERWISE ENTITLED TO RECEIVE PAY FOR SUCH FLIGHTS, WILL CONTINUE TO BE ELIGIBLE WHILE THEY ARE:

"/A) SICK IN LINE OF DUTY.

"/B)ON AUTHORIZED LEAVE WHILE IN A PAY STATUS. AERIAL FLIGHTS PERFORMED WHILE ON LEAVE CANNOT BE COUNTED FOR PAY PURPOSES.

"/C) ON TEMPORARY DUTY OR DETACHED SERVICE OTHER THAN WITH AN AERIAL UNIT.

"/2) RATED OFFICERS ON FLYING STATUS WHO PERFORM THE REQUIRED FLIGHTS, AND ARE OTHERWISE ENTITLED TO RECEIVE PAY FOR SUCH FLIGHTS, WILL CONTINUE TO BE ELIGIBLE WHILE THEY ARE IN A TRAVEL STATUS ON AUTHORIZED CHANGE OF STATION, OR EN ROUTE TO OR RETURNING FROM FOREIGN SERVICE. (SEE AFR 36- 57.)"

PARAGRAPH 11121 OF AIR FORCE MANUAL, PROVIDES:

"A MEMBER ON FLYING STATUS IS ENTITLED TO INCENTIVE PAY DURING THE TIME NECESSARILY SPENT IN TRAVELING ON A CHANGE OF STATION IF, DURING THE CALENDAR MONTH IN WHICH TRAVEL IS PERFORMED, OR IN THE NEXT TWO SUCCEEDING CALENDAR MONTHS, HE HAS MET THE NECESSARY FLIGHT REQUIREMENTS. (SEE 1 COMP. GEN. 431.)"

IT IS UNDERSTOOD TO BE YOUR CONTENTION THAT THE LAST ABOVE-QUOTED PARAGRAPH OF 173-2O SUPPORTED YOUR CLAIM FOR INCENTIVE PAY FOR THE MONTHS OF AUGUST AND SEPTEMBER OF 1957.

SECTION 4 OF THE EXECUTIVE ORDER NO. 10152, PRESCRIBES MINIMUM FLIGHT REQUIREMENTS WHICH ARE NECESSARY FOR ENTITLEMENT TO RECEIVE INCENTIVE PAY AND SECTION 12 AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUPPLEMENTAL REGULATIONS NOT INCONSISTENT THEREWITH.

BOTH PARAGRAPHS OF AIR FORCE MANUAL 173-20 QUOTED ABOVE STATE THAT A MEMBER IN TRAVEL STATUS IS ENTITLED TO INCENTIVE PAY PROVIDED THE NECESSARY FLIGHT REQUIREMENTS ARE MET. THAT IS, FLIGHT PAY WHILE IN A TRAVEL STATUS IS NOT AUTHORIZED UNLESS FLIGHT REQUIREMENTS FOR THE PERIOD OF TRAVEL ARE MET EITHER IN ADVANCE DURING THE MONTH IN WHICH TRAVEL IS PERFORMED OR SUBSEQUENT TO SUCH TRAVEL WITHIN THE TIME LIMITATIONS PRESCRIBED IN EXECUTIVE ORDER 10152.

WHILE PARAGRAPH 11121 PROVIDES THAT UNDER CERTAIN CONDITIONS FLIGHT PAY MAY ACCRUE WHILE IN A TRAVEL STATUS, IT DOES NOT PURPORT TO AFFECT IN ANY WAY THE OPERATION OF EXECUTIVE ORDER 10152. HENCE AN INDIVIDUAL'S RIGHT TO FLIGHT PAY WHILE IN A TRAVEL STATUS MUST BE DETERMINED ON THE BASIS OF WHETHER HE MET THE FLIGHT REQUIREMENTS FOR THE ENTIRE GRACE PERIOD, INCLUDING THE PART COVERED WHILE IN A TRAVEL STATUS. AS ABOVE MENTIONED, THE INCENTIVE PAY IS NOT PAYABLE FOR PERIODS REQUIRED FOR TRAVELING UNLESS THE MEMBER QUALIFIED OR SUBSEQUENTLY QUALIFIES BY FLYING THE REQUIRED NUMBER OF HOURS AS PROVIDED BY REGULATIONS. THE THREE-MONTH GRADE PERIOD IS NOT CHANGED BECAUSE A MEMBER'S ASSIGNMENT MAKES IT IMPRACTICABLE FOR HIM TO FLY.

IN 34 COMP. GEN. 243, AT PAGES 246-247, IN CONSIDERATION OF THE QUESTION AS TO WHETHER FLIGHT PAY MIGHT PROPERLY BE PAID TO AN OFFICER FOR PERIODS OF TRAVEL FROM THE UNITED STATES TO A STATION OUTSIDE THE UNITED STATES, IT WAS SAID:

"UNDER EXECUTIVE ORDER NO. 10152 FLIGHT REQUIREMENTS MAY BE SET DURING PERIODS OF NOT MORE THAN THREE CONSECUTIVE CALENDAR MONTHS. SUCH A PERIOD BEGINS WITH THE FIRST COMPLETE CALENDAR MONTH IN WHICH FLIGHT REQUIREMENTS FOR A FULL MONTH ARE NOT MET (COMPARE 23 COMP. GEN. 948, CITING 4 COMP. GEN. 975), OR WITH THE FRACTION OF A CALENDAR MONTH, OCCURRING AT THE BEGINNING OF A STATUS IN WHICH FLYING DUTY IS REQUIRED, IN WHICH PROPORTIONAL REQUIREMENTS ARE NOT MET (COMPARE 25 COMP. GEN. 534). WHEN THE THREE-MONTH GRACE PERIOD ESTABLISHED IN ACCORDANCE WITH THESE RULES HAS EXPIRED WITHOUT THE FLIGHT REQUIREMENTS BEING MET FOR SUCH PERIOD, A NEW THREE-MONTH PERIOD DOES NOT BEGIN. INSTEAD, WHILE THE GRACE PERIOD HAS EXPIRED, THE PERIOD OF FLIGHT DEFICIENCIES MERELY HAS BEEN EXTENDED BEYOND THREE MONTHS AND FLIGHT PAY DOES NOT ACCRUE UNTIL FLIGHT REQUIREMENTS FOR A FULL CALENDAR MONTH ARE MET. SUCH FLIGHTS MADE AFTER THE GRACE PERIOD OF THREE MONTHS DO NOT MAKE UP DEFICIENCIES FOR ANY MONTH PRIOR TO THE MONTH IN WHICH THE FLIGHTS ARE PERFORMED. COMPARE 9 COMP. GEN. 487.'

ACCORDINGLY, FOR THE REASONS STATED HEREIN, YOUR CLAIM MAY NOT BE FAVORABLY CONSIDERED AND THE SETTLEMENT OF NOVEMBER 7, 1958, IS SUSTAINED.