B-143747, SEP. 9, 1960

B-143747: Sep 9, 1960

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USAR: REFERENCE IS MADE TO YOUR COMMUNICATION DATED JUNE 17. THE MATTER WAS REFERRED HERE FOR APPROPRIATE ACTION BY THE CLAIMS DIVISION OF THE ARMY FINANCE CENTER ON JULY 8. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO AUTHORITY FOR PAYMENT OF INCENTIVE PAY FOR FLIGHT DUTY IN THE ABSENCE OF EVIDENCE THAT YOUR ACTUAL ASSIGNED DUTIES INVOLVED EITHER OPERATIONAL OR TRAINING FLIGHTS. YOU WERE AUTHORIZED TO PARTICIPATE IN AERIAL FLIGHTS. THESE ORDERS FURTHER PROVIDED THAT THEY WOULD "BECOME INVALID" WHEN YOU WERE CALLED TO EXTENDED ACTIVE DUTY. OR WERE SEPARATED FROM THE RESERVE COMPONENT. YOU WERE ORDERED TO ACTIVE DUTY TO ATTEND. YOUR ACTIVE DUTY WAS EXTENDED TO DECEMBER 8. YOU WERE ORDERED TO ACTIVE DUTY IN THE GRADE CURRENTLY HELD AS A RESERVE COMMISSIONED OFFICER OF THE ARMY EFFECTIVE DECEMBER 9.

B-143747, SEP. 9, 1960

TO MAJOR FREDERICK W. THEISMAN, USAR:

REFERENCE IS MADE TO YOUR COMMUNICATION DATED JUNE 17, 1959, AND ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 6, 1957, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR FLIGHT DUTY FOR THE PERIOD JULY 30, 1956, TO DECEMBER 8, 1956. THE MATTER WAS REFERRED HERE FOR APPROPRIATE ACTION BY THE CLAIMS DIVISION OF THE ARMY FINANCE CENTER ON JULY 8, 1960.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO AUTHORITY FOR PAYMENT OF INCENTIVE PAY FOR FLIGHT DUTY IN THE ABSENCE OF EVIDENCE THAT YOUR ACTUAL ASSIGNED DUTIES INVOLVED EITHER OPERATIONAL OR TRAINING FLIGHTS.

IT APPEARS THAT BY LETTER ORDER 517, HEADQUARTERS THIRD ARMY, FORT MCPHERSON, GEORGIA, DATED JULY 11, 1956, YOU WERE AUTHORIZED TO PARTICIPATE IN AERIAL FLIGHTS, AS A RESERVE OFFICER NOT ON ACTIVE DUTY, EFFECTIVE JULY 11, 1956. THESE ORDERS FURTHER PROVIDED THAT THEY WOULD

"BECOME INVALID" WHEN YOU WERE CALLED TO EXTENDED ACTIVE DUTY, REVERTED TO INACTIVE STATUS WITHIN THE RESERVE COMPONENT, OR WERE SEPARATED FROM THE RESERVE COMPONENT. THEREAFTER, BY LETTER ORDER 356, HEADQUARTERS MISSISSIPPI MILITARY DISTRICT, DATED JULY 23, 1956, WITH YOUR CONSENT, YOU WERE ORDERED TO ACTIVE DUTY TO ATTEND, AS A STUDENT, THE ASSOCIATE FIELD ARTILLERY OFFICER ADVANCED COURSE, 6-0-4, AT THE ARTILLERY AND GUIDED MISSILE SCHOOL, FORT SILL, OKLAHOMA, DURING THE PERIOD FROM JULY 28, 1956, TO NOVEMBER 25, 1956, ON WHICH DATE YOU WOULD REVERT TO RESERVE STATUS. BY AN AMENDMENT TO THE ORDERS DATED SEPTEMBER 28, 1956, YOUR ACTIVE DUTY WAS EXTENDED TO DECEMBER 8, 1956, ON WHICH DATE YOU REVERTED TO INACTIVE DUTY STATUS. BY SPECIAL ORDERS NO. 195, DATED OCTOBER 1, 1956, AS AMENDED, YOU WERE ORDERED TO ACTIVE DUTY IN THE GRADE CURRENTLY HELD AS A RESERVE COMMISSIONED OFFICER OF THE ARMY EFFECTIVE DECEMBER 9, 1956.

THE ORDERS DATED JULY 23, 1956, AS AMENDED, ISSUED BY HEADQUARTERS MISSISSIPPI MILITARY DISTRICT, MISSISSIPPI, CALLING YOU TO ACTIVE DUTY DID NOT SPECIFY THAT YOU WERE TO PARTICIPATE IN AERIAL FLIGHTS DURING THE PERIOD OF YOUR ACTIVE DUTY AT THE ARTILLERY AND GUIDED MISSILE SCHOOL. FURTHER APPEARS THAT DURING THE PERIOD INVOLVED YOU WERE ASSIGNED TO THE 3087TH USAR CONTROL GROUP (REINF), MISSISSIPPI; THAT YOU WERE NOT ASSIGNED OR ATTACHED TO A RESERVE UNIT TO FILL A POSITION WHICH REQUIRED YOU TO PERFORM AERIAL FLIGHTS, AND THAT NO OPERATIONAL ORDERS WERE PUBLISHED AUTHORIZING YOU TO PERFORM AERIAL FLIGHTS INCIDENT TO YOUR ORDERS TO ACTIVE DUTY. IT IS ADMINISTRATIVELY REPORTED THAT NO FUNDS WERE COMMITTED BY HEADQUARTERS, MISSISSIPPI MILITARY DISTRICT, WHICH ISSUED THE ORDERS OF JULY 23, 1956, TO SUPPORT PAYMENT OF FLIGHT PAY TO YOU INCIDENT TO THOSE ORDERS.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AS AMENDED, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"INCENTIVE PAY--- HAZARDOUS DUTY

"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 CLAUSE (1) OF THIS SUBSECTION: "

PARAGRAPH 5C, ARMY REGULATIONS 35-1200, DATED JUNE 24, 1955, IN EFFECT AT THE TIME, PROVIDED AS FOLLOWS:

"C. ASSIGNED DUTIES INVOLVING OPERATIONAL OR TRAINING FLIGHTS. ONLY MEMBERS WHOSE ACTUAL ASSIGNED DUTIES INVOLVE EITHER OPERATIONAL OR TRAINING FLIGHTS (INCLUDING FLIGHTS NECESSARY TO MAINTAIN THE PROFICIENCY OF ADMINISTRATIVE PERSONNEL) WILL BE ENTITLED TO RECEIVE THE INCENTIVE PAY. ORDERS ISSUED TO MEMBERS TO PERFORM SUCH FLIGHTS WILL CONTAIN SPECIFIC LANGUAGE TO THAT EFFECT, AS APPLICABLE IN EACH CASE.'

UNDER THE FOREGOING PROVISIONS OF LAW AND REGULATIONS, THE RIGHT TO INCENTIVE PAY FOR FLIGHT DUTY IS CONTINGENT UPON THE EXISTENCE OF COMPETENT ORDERS, ISSUED BY THE COMMAND INVOLVED, TO PERFORM SUCH DUTY AS WELL AS THE PERFORMANCE OF DUTIES INCIDENT TO SUCH ORDERS. THE INFORMATION FURNISHED INDICATES THAT THE FLIGHTS MADE DURING THE PERIOD IN QUESTION WERE NOT PERFORMED UNDER COMPETENT ORDERS AS CONTEMPLATED BY THE REGULATIONS FOR PAY PURPOSES, AND IT IS CONCLUDED THAT YOUR RIGHT TO FLYING PAY ON THE BASIS THEREOF IS NOT ESTABLISHED.