B-147555, DEC. 7, 1961

B-147555: Dec 7, 1961

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LALLY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30. YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT SINCE YOU DID NOT MEET THE PHYSICAL REQUIREMENTS FOR FLYING STATUS. AERONAUTICAL ORDERS ISSUED IN THE ABSENCE OF A CERTIFICATE OF MEDICAL QUALIFICATION FOR FLYING WERE INVALID FOR INCENTIVE PAY PURPOSES. A REQUEST WAS MADE BY YOUR ORGANIZATION THAT YOU BE PLACED ON LIMITED FLYING DUTY FOR A PERIOD OF APPROXIMATELY FOUR MONTHS AND THAT IT WAS NECESSARY THAT YOU COMMENCE FLYING ON JUNE 15. YOU WERE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS A NONCREW MEMBER UNDER THE PROVISIONS OF SECTION 2. YOU WERE AGAIN REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERONAUTICAL FLIGHTS FOR THE PERIOD JULY 1 TO SEPTEMBER 30.

B-147555, DEC. 7, 1961

TO MAJOR ROBERT W. LALLY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1961, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED JUNE 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR FLYING PAY AS A NONCREW MEMBER FOR THE PERIOD JUNE 15, 1956, TO SEPTEMBER 25, 1956, WHILE SERVING AS AN OFFICER IN THE UNITED STATES AIR FORCE.

YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT SINCE YOU DID NOT MEET THE PHYSICAL REQUIREMENTS FOR FLYING STATUS, AERONAUTICAL ORDERS ISSUED IN THE ABSENCE OF A CERTIFICATE OF MEDICAL QUALIFICATION FOR FLYING WERE INVALID FOR INCENTIVE PAY PURPOSES.

IT APPEARS FROM THE RECORD BEFORE US THAT ON JUNE 14, 1956, A REQUEST WAS MADE BY YOUR ORGANIZATION THAT YOU BE PLACED ON LIMITED FLYING DUTY FOR A PERIOD OF APPROXIMATELY FOUR MONTHS AND THAT IT WAS NECESSARY THAT YOU COMMENCE FLYING ON JUNE 15, 1956. BY ORDERS DATED JUNE 15, 1956, YOU WERE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS A NONCREW MEMBER UNDER THE PROVISIONS OF SECTION 2, EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, AND AIR FORCE REGULATION 36-15. THE ORDERS EXPRESSLY LIMITED THE FLYING DUTY TO COVER THE PERIOD JUNE 15 TO JUNE 30, 1956. BY ORDERS DATED JULY 3, 1956, YOU WERE AGAIN REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERONAUTICAL FLIGHTS FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1956. THOSE ORDERS WERE RESCINDED BY ORDERS DATED SEPTEMBER 25, 1956, EFFECTIVE THAT DATE, CITING PARAGRAPH 10A (1), AIR FORCE REGULATION 36 15, THE REASON FOR THE SUSPENSION BEING PHYSICAL DISQUALIFICATION FOR FLYING DUTY. THE RECORDS FURTHER SHOW THAT BY MESSAGE DATED SEPTEMBER 29, 1956, YOU WERE NOTIFIED THAT EFFECTIVE SEPTEMBER 25, 1956, YOU WERE SUSPENDED FROM FLYING STATUS BECAUSE OF PHYSICAL DISQUALIFICATION. AS REQUESTED, YOU ACKNOWLEDGED RECEIPT OF THAT MESSAGE ON SEPTEMBER 30, 1956.

IT ALSO APPEARS FROM THE RECORDS THAT YOU COMMENCED FLYING ON JUNE 15, 1956, PURSUANT TO YOUR ORDERS, BUT PRIOR TO TAKING THE REQUIRED PHYSICAL EXAMINATION. IN YOUR ORIGINAL CLAIM YOU STATE THAT BECAUSE OF THE TIME INVOLVED BETWEEN THE REQUEST FOR PLACING YOU ON FLYING DUTY AND THE PERFORMANCE OF THE REQUIRED AERIAL FLIGHTS, YOUR PHYSICAL EXAMINATION WAS NOT TAKEN UNTIL THE LATER PART OF JUNE 1956. YOU ALSO STATE THAT IN THE LATTER PART OF AUGUST 1956 A CONSULTATION WAS HELD ON YOUR PHYSICAL EXAMINATION BUT THAT YOU WERE NOT INFORMED OF THE RESULTS UNTIL SEPTEMBER 27, 1956, WHEN YOU WERE ADVISED THAT YOU HAD BEEN SUSPENDED FROM FLYING STATUS. CONCERNING YOUR PHYSICAL EXAMINATION ON JUNE 27, 1956, THE RECORD SHOWS THAT BY FIRST INDORSEMENT DATED JANUARY 31, 1957, THE FINANCE OFFICER ADVISED YOU, IN PERTINENT PART, AS FOLLOWS:

"2. HOSPITAL RECORDS INDICATE THAT AS THE RESULT OF A PHYSICAL EXAMINATION ON 27 JUNE 1956, YOU WERE FOUND TO BE PHYSICALLY UNQUALIFIED FOR AERONAUTICAL DUTY. YOU WERE SO INFORMED ON THAT DATE.'

AUTHORITY FOR THE PAYMENT OF INCENTIVE PAY FOR FLIGHT DUTY IS CONTAINED IN SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 235 (A), AND PROVIDES, IN PERTINENT PART, THAT SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY "REQUIRED BY COMPETENT ORDERS" INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS NOT AS A CREW MEMBER. PARAGRAPH 2 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, ISSUED UNDER AUTHORITY CONTAINED IN THE ABOVE-MENTIONED SECTION 204 (A), AND CITED IN YOUR ORDERS, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE, ANY MEMBER OF THE UNIFORMED SERVICES, INCLUDING MEMBERS ASSIGNED TO SPECIAL, ADMINISTRATIVE, OR SCHOOL DUTIES, MAY BE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY. UNDER THE PROVISIONS OF PARAGRAPH 4 OF THE EXECUTIVE ORDER ONLY MEMBERS "WHO ARE REQUIRED BY COMPETENT ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS" CAN QUALIFY FOR FLYING PAY. PARAGRAPH 12 OF THE ORDER AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT WITH THE EXECUTIVE ORDER AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE REGULATIONS. PURSUANT TO SUCH EXECUTIVE ORDER, AIR FORCE REGULATION 36-15, MAY 6, 1955, AS AMENDED BY MATS SUPPLEMENT-3, SEPTEMBER 21, 1955, IN EFFECT DURING THE PERIOD HERE INVOLVED, INSTRUCTS COMMANDERS HOW TO PLACE NONRATED OFFICERS AND WARRANT OFFICERS ON FLYING STATUS. PARAGRAPH 3F OF THOSE REGULATIONS DEFINES THE TERM "COMPETENT ORDERS" AS THOSE ORDERS ISSUED IN ACCORDANCE WITH PARAGRAPH 8. PARAGRAPH 8A AUTHORIZES COMMANDERS OF MAJOR COMMANDS, NUMBERED AIR FORCES AND COMPARABLE COMMANDS TO ISSUE ORDERS PLACING OFFICERS ON FLYING STATUS. THE ORDERS, HOWEVER, ARE SUBJECT TO THE PROVISIONS OF PARAGRAPH 4 OF THE REGULATIONS WHICH ARE IN PERTINENT PART, AS FOLLOWS:

"4. ELIGIBILITY FOR FLYING STATUS. ANYONE LISTED BELOW MAY BE PLACED ON FLYING STATUS IF THEY MEET CURRENT PHYSICAL REQUIREMENTS.

"H. OTHERS--- A PERSON ASSIGNED TO ANY DUTY WHICH REQUIRES FREQUENT AND REGULAR FLIGHTS.

"I. PHYSICAL REQUIREMENTS. THE PHYSICAL STANDARDS OF CLASS III, AFM 160- 1 APPLY. NORMALLY AN OFFICER WILL ATTACH AN SF 88 TO HIS APPLICATION, COMPLETED WITHIN A YEAR. IF NOT AERONAUTICALLY DESIGNATED, HE MAY ATTACH INSTEAD A CERTIFICATE FROM THE FLIGHT SURGEON SHOWING HE QUALIFIED CLASS III WITHIN A YEAR. IF URGENT PATIENT MOVEMENTS REQUIRE A FLIGHT NURSE TO FLY BEFORE SHE CAN GET A COMPLETED SF 88, SHE MAY BE PLACED ON FLYING STATUS SUBJECT TO PHYSICAL QUALIFICATION WITHIN 30 DAYS. * * *"

UNDER THE ABOVE-MENTIONED LAW AND EXECUTIVE ORDER THE RIGHT TO INCENTIVE PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS TO PERFORM SUCH DUTY AND THE ACTUAL PERFORMANCE THEREOF. THE ABOVE-QUOTED AIR FORCE REGULATION 36-15 CONTEMPLATES THAT, AS A PREREQUISITE TO PLACING AN OFFICER ON FLYING STATUS, THE OFFICER MUST MEET CERTAIN PHYSICAL REQUIREMENTS AS SHOWN BY A CERTIFICATE OF THE FLIGHT SURGEON. INDICATED IN THAT REGULATION, THE ONLY EXCEPTION TO THIS REQUIREMENT IS THE CASE OF A FLIGHT NURSE WHO MAY BE PLACED ON FLYING STATUS SUBJECT TO PHYSICAL EXAMINATION WITHIN 30 DAYS. WHILE THERE IS NOTHING IN THE RECORD TO INDICATE THAT AT THE TIME OF THE ISSUANCE OF YOUR ORDERS OF JUNE 15, 1956, EITHER YOU OR THE ORDER ISSUING AUTHORITY HAD ANY REASON TO QUESTION THE VALIDITY OF THOSE ORDERS, YOUR RIGHT TO CONTINUE IN A FLYING STATUS ON AND AFTER JUNE 27, 1956, WAS PATENTLY QUESTIONABLE SINCE THE RECORD INDICATES THAT ON THAT DATE YOU WERE GIVEN A PHYSICAL EXAMINATION AND YOU WERE NOTIFIED THAT YOU WERE PHYSICALLY UNQUALIFIED FOR AERONAUTICAL DUTY. WHERE, AS IN YOUR CASE, ORDERS ARE ISSUED PLACING AN OFFICER ON FLYING STATUS PRIOR TO A PHYSICAL EXAMINATION AND HE PERFORMS FLIGHTS BEFORE HE IS EXAMINED AND BEFORE IT IS DISCLOSED THAT HE FAILS TO MEET CERTAIN PHYSICAL REQUIREMENTS AS SPECIFIED IN THE REGULATIONS, IT IS OUR VIEW THAT SUCH ORDERS MAY NOT BE CONSIDERED AS "COMPETENT ORDERS" WITHIN THE MEANING OF THE LAW AND THE REGULATIONS FOR INCENTIVE PAY PURPOSES. COMPARE 40 COMP. GEN. 642. WHILE IT WAS UNFORTUNATE THAT IN THE CIRCUMSTANCES IN YOUR CASE YOU PERFORMED FLIGHTS PRIOR TO A PHYSICAL EXAMINATION, THE FACT THAT YOU COMPLIED WITH THE ORDERS IN GOOD FAITH AFFORDS NO PROPER BASIS FOR AUTHORIZING PAYMENT OF YOUR CLAIM.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JUNE 12, 1957, IS SUSTAINED.