B-147822, FEBRUARY 2, 1962, 41 COMP. GEN. 507

B-147822, FEBRUARY 2, 1962, 41 COMP. GEN. 507

PAY - AVIATION DUTY - FLIGHT DEFICIENCIES - GRACE PERIODS A NAVY OFFICER WHO FAILED TO MEET THE MINIMUM FLIGHT REQUIREMENTS FOR 3 MONTHS BECAUSE HE WAS IN A PROCEED, LEAVE, TRAVEL AND TEMPORARY DUTY STATUS AFTER DEPARTURE FROM AN OVERSEAS STATION WHERE OFFICERS WERE NOT EXEMPTED FROM MEETING FLIGHT REQUIREMENTS DOES NOT COME UNDER SECTION 514 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 75 STAT. 352, WHICH PERMITS FLIGHT PAY TO MEMBERS WHOSE ASSIGNMENT OUTSIDE THE UNITED STATES MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS, NOR UNDER PAR. 1044086-2A4 OF THE NAVY COMPTROLLER MANUAL APPLICABLE TO AREAS WHERE THE COMMANDER DETERMINES THAT DUE TO OPERATIONS OR THE UNAVAILABILITY OF AIRCRAFT FLIGHT REQUIREMENTS CANNOT BE MET; THEREFORE, THE MEMBER IS NOT ENTITLED TO FLIGHT PAY FOR THE 3-MONTH PERIOD WHEN THE MINIMUM FLIGHT REQUIREMENTS WERE NOT MET.

TO J. E. KYZAR, DEPARTMENT OF THE NAVY, FEBRUARY 2, 1962:

BY SECOND ENDORSEMENT DATED DECEMBER 20, 1961, THE COMPTROLLER OF THE NAVY FORWARDED HERE YOUR LETTER OF DECEMBER 7, 1961, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING INCENTIVE PAY FOR AVIATION DUTY FOR JANUARY, FEBRUARY AND MARCH 1961 TO CAPTAIN J. J. MUNSON, 82741/1310, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. DO-N-620 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

CAPTAIN MUNSON WAS DETACHED FROM DUTY AS ALUSNA AND ALUSNA FOR AIR, MOSCOW, USSR, ON JANUARY 15, 1961. PRIOR TO THE MONTH OF JANUARY HE MET MINIMUM REQUIREMENTS FOR FLIGHT PAY. UPON ARRIVAL IN CONTINENTAL UNITED STATES ON FEBRUARY 1, 1961, HE CONTINUED IN A TRAVEL STATUS, LEAVE STATUS, AND ON TEMPORARY DUTY IN WASHINGTON, D.C., UNTIL MARCH 21, 1961, WHEN HE REPORTED TO HEADQUARTERS, EIGHTH NAVAL DISTRICT, FOR DUTY. FLIGHT REQUIREMENTS WERE NOT MET UNTIL APRIL 1961 WHEN 16.4 HOURS' FLIGHT TIME WAS LOGGED AS CERTIFIED BY THE COMMANDING OFFICER, NAVAL AIR STATION, NEW ORLEANS, LOUISIANA.

IN YOUR LETTER REFERRED TO OUR DECISION OF NOVEMBER 23, 1954, 34 COMP. GEN. 243, IN WHICH IT WAS HELD THAT UNDER SECTION 628 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, 67 STAT. 354, THE MINIMUM FLIGHT REQUIREMENTS SET FORTH IN EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, MAY BE EXCUSED ONLY DURING THE PERIOD BETWEEN THE DATE OF REPORTING FOR DUTY AT THE ASSIGNED STATION OUTSIDE THE UNITED STATES AND THE DATE OF DETACHMENT THEREFROM. BY LETTER DATED NOVEMBER 6, 1958, THE CHIEF OF NAVAL OPERATIONS PERMITTED MINIMUM FLIGHT REQUIREMENTS TO BE FULFILLED OVER A 6-MONTH PERIOD BY ALUSNA, MOSCOW, WHICH YOU SAY MAY HAVE LED CAPTAIN MUNSON TO BELIEVE HE HAD MORE TIME THAN UNTIL MARCH 31, 1961, TO FULFILL FLIGHT REQUIREMENTS. IN VIEW OF THE CIRCUMSTANCES OF THIS CASE AND OF THE RESTRICTIVE AVAILABILITY OF AIRCRAFT IN THE WASHINGTON, D.C., AREA, YOU REQUEST OUR DECISION ON THE PROPRIETY OF CREDITING INCENTIVE PAY TO CAPTAIN MUNSON FOR AVIATION DUTY DURING THE MONTHS OF JANUARY, FEBRUARY AND MARCH 1961.

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 NO. 10152, DATED AUGUST 17, 1950.

SECTION 4 OF THE EXECUTIVE ORDER 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. ADMINISTRATIVE REGULATIONS ON THE SUBJECT ARE CONTAINED IN PARAGRAPHS 1044085 THROUGH 1044091 OF THE NAVY COMPTROLLER MANUAL. PARAGRAPH 1044086-2 OF THE REGULATIONS SETS FORTH THE FLIGHT REQUIREMENTS PRESCRIBED BY SECTION 4 OF THE EXECUTIVE ORDER AND PROVIDES AS FOLLOWS:

A. MINIMUM REQUIREMENTS. IN THE CASE OF MEMBERS OF THE REGULAR NAVY AND MARINE CORPS AND MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE ON ACTIVE OR TRAINING DUTY, MINIMUM REQUIREMENTS OF ACTUAL FLYING FOR UNIT PERIODS ARE AS FOLLOWS:

1. DURING 1 CALENDAR MONTH--- 4 HOURS OF AERIAL FLIGHT;

2. DURING 2 CONSECUTIVE CALENDAR MONTHS, WHEN FLIGHT REQUIREMENTS

HAVE NOT BEEN MET FOR THE FIRST MONTH--- 8 HOURS OF AERIAL FLIGHT;

3. DURING 3 CONSECUTIVE CALENDAR MONTHS, WHEN FLIGHT REQUIREMENTS

HAVE NOT BEEN MET FOR THE FIRST 2 MONTHS--- 12 HOURS OF AERIAL FLIGHT;

4. DURING 6 CONSECUTIVE CALENDAR MONTHS, WHEN, ON ACCOUNT OF MILITARY

OPERATIONS OF THE PARTICULAR COMMAND OR ON ACCOUNT OF UNAVAILABILITY

OF AIRCRAFT, THE REQUIREMENTS HAVE NOT BEEN MET FOR THE FIRST 3 MONTHS

IN ACCORDANCE WITH ITEM 3-24 HOURS OF AERIAL FLIGHT.

SECTION 514 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 74 STAT. 352, PROVIDES:

SEC. 514. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXECUTIVE ORDER, OR REGULATION, NO PART OF THE APPROPRIATIONS IN THIS ACT SHALL BE AVAILABLE FOR ANY EXPENSES OF OPERATING AIRCRAFT UNDER THE JURISDICTION OF THE ARMED FORCES FOR THE PURPOSE OF PROFICIENCY FLYING EXCEPT IN ACCORDANCE WITH THE REGULATIONS ISSUED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED AND APPROVED BY THE SECRETARY OF DEFENSE WHICH SHALL ESTABLISH PROFICIENCY STANDARDS AND MAXIMUM AND MINIMUM FLYING HOURS FOR THIS PURPOSE: PROVIDED, THAT WITHOUT REGARD TO ANY PROVISION OF LAW OR EXECUTIVE ORDER PRESCRIBING MINIMUM FLIGHT REQUIREMENTS, SUCH REGULATIONS MAY PROVIDE FOR THE PAYMENT OF FLIGHT PAY AT THE RATES PRESCRIBED IN SECTION 204 (B) OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802) AS AMENDED, TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN TWENTY YEARS, OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS.

THE SECOND CLAUSE OF THE PROVISO OF SECTION 514, QUOTED ABOVE, PROVIDES IN PART FOR PERMITTING THE PAYMENT OF FLIGHT PAY TO THOSE MEMBERS WHOSE ASSIGNMENT OUTSIDE THE UNITED STATES MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS, AND WHO ARE OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY, WITHOUT THE REQUIREMENT THAT THEY COMPLY WITH THE PROVISIONS OF SECTION 4 OF EXECUTIVE ORDER NO. 10152. IT DOES NOT APPLY TO ANY CIRCUMSTANCES OTHER THAN THOSE WHERE MEMBERS ARE ASSIGNED OUTSIDE THE UNITED STATES AND WHERE IT IS IMPRACTICAL FOR THEM TO PARTICIPATE IN REGULAR FLIGHTS. COMPLIANCE WITH THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 IS REQUIRED EXCEPT WHEN DEPARTMENTAL REGULATIONS PROVIDE FOR THE PAYMENT OF FLIGHT PAY DURING PERIODS OF ASSIGNMENT OUTSIDE THE UNITED STATES WHERE PARTICIPATION IN REGULAR AERIAL FLIGHTS IS IMPRACTICAL.

IN OUR DECISION OF NOVEMBER 23, 1954, 34 COMP. GEN. 243, REFERRED TO IN YOUR SUBMISSION, INVOLVING AN ALMOST IDENTICAL PROVISION CONTAINED IN SECTION 628 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, 67 STAT. 354, THE EXAMPLES PRESENTED FOR CONSIDERATION INVOLVED AIR FORCE PILOTS WHOSE ASSIGNMENT OUTSIDE THE UNITED STATES MADE IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS AND WHO WERE NOT REQUIRED TO COMPLY WITH THE MINIMUM REQUIREMENTS OF EXECUTIVE ORDER NO. 10152. IN THE PRESENT CASE, HOWEVER, THE RECORD SHOWS THAT THE CHIEF OF NAVAL OPERATIONS REQUIRED THE PILOTS ATTACHED TO ALUSNA MOSCOW TO COMPLY WITH THE MINIMUM REQUIREMENTS. OFFICIAL INSTRUCTIONS TO SUCH PERSONNEL SPECIFICALLY DIRECTED THEM TO FLY 4 HOURS EACH MONTH OR A MINIMUM OF 24 HOURS EACH 6 MONTHS TO FULFILL REQUIREMENTS FOR FLIGHT PAY EVEN TO THE EXTENT THAT THEY WERE TO BE REQUIRED TO PROCEED ON TEMPORARY ADDITIONAL DUTY TO A PLACE WHERE AIRCRAFT WERE AVAILABLE FOR THEIR USE. IN THE EVENT THEY WERE UNABLE TO MEET THESE MINIMUM REQUIREMENTS THEY WERE TO ADVISE THE CHIEF OF NAVAL OPERATIONS. THEREFORE, IT APPEARS THAT THE CHIEF OF NAVAL OPERATIONS REQUIRED PILOTS ATTACHED TO THE MOSCOW ACTIVITY TO MEET FLIGHT REQUIREMENTS IN EXECUTIVE ORDER NO. 10152 AND DID NOT EXEMPT THEM FROM MEETING THE FLIGHT REQUIREMENTS UNDER THE AUTHORITY CONTAINED IN SECTION 514 OF THE ACT OF JULY 7, 1960. THUS, THE SITUATION PRESENTED IN CAPTAIN MUNSON'S CASE IS NOT COVERED BY SECTION 514 AND OUR DECISION OF NOVEMBER 23, 1954, 34 COMP. GEN. 243, IS NOT FOR APPLICATION.

AS STATED ABOVE, THE FLIGHT REQUIREMENTS PRESCRIBED IN EXECUTIVE ORDER NO. 10152 AND AS SET FORTH IN PARAGRAPH 1044086-2A OF THE NAVY COMPTROLLER MANUAL MAY BE MET DURING PERIODS OF NOT MORE THAN THREE CONSECUTIVE CALENDAR MONTHS EXCEPT AS PROVIDED IN ITEM 4 OF THAT SUBPARAGRAPH. SUCH 3 -MONTH PERIOD BEGINS WITH THE FIRST COMPLETE CALENDAR MONTH IN WHICH FLIGHT REQUIREMENTS FOR A FULL MONTH ARE NOT MET, 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. ITEM 4 OF SUBPARAGRAPH 1044086 2A OF THE REGULATIONS, QUOTED ABOVE, PERMITTING A 6-MONTH PERIOD IN WHICH TO MEET FLIGHT REQUIREMENTS, IS FOR APPLICATION WHENEVER IT IS DETERMINED BY THE COMMANDING OFFICER CONCERNED THAT DUE TO THE OPERATIONS OF THE PARTICULAR COMMAND OR ON ACCOUNT OF THE UNAVAILABILITY OF AIRCRAFT, THE MEMBER CONCERNED IS UNABLE TO PERFORM THE AERIAL FLIGHTS PRESCRIBED IN ITEMS 1, 2 OR 3. IN SUCH A CASE THE COMMANDING OFFICER IS TO CERTIFY ON THE FLIGHT CERTIFICATE THAT MILITARY OPERATIONS OR UNAVAILABILITY OF AIRCRAFT PREVENTED ACCUMULATION OF SUFFICIENT FLIGHTS FOR THE 3-MONTH PERIOD.

SINCE CAPTAIN MUNSON MET THE FLIGHT REQUIREMENTS THROUGH THE MONTH OF DECEMBER 1960, HIS PERIOD FOR MEETING FLIGHT REQUIREMENTS BEGAN ON JANUARY 1, 1961. SINCE HE DEPARTED FROM THIS OVERSEAS STATION ON JANUARY 15 AND REPORTED TO HIS NEW STATION ON MARCH 21, 1961, AFTER HAVING BEEN IN A PROCEED, LEAVE, TRAVEL AND TEMPORARY DUTY STATUS AND DID NOT MEET THE FLIGHT REQUIREMENTS FOR THE MONTHS OF JANUARY, FEBRUARY AND MARCH 1961, AND SINCE THE CONDITIONS PRESCRIBED IN SUBPARAGRAPH 1044086-2A4 OF THE REGULATIONS APPARENTLY WERE NOT PRESENT, HE IS NOT ENTITLED TO FLYING PAY FOR SUCH 3-MONTH PERIOD.