B-147871, JAN. 23, 1962

B-147871: Jan 23, 1962

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534 71 46: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NO RECORD HAS BEEN FOUND THAT ORDERS WERE ISSUED BY COMPETENT AUTHORITY PLACING YOU IN FLIGHT STATUS PRIOR TO MARCH 15. YOU WERE ASSIGNED TO AN OPERATION FLIGHT CREW AS A CREW MEMBER AND THAT YOU WOULD HAVE BEEN ENTITLED TO AVIATION PAY IF COMPETENT ORDERS HAD BEEN ISSUED PLACING YOU IN A FLIGHT STATUS AT THAT TIME. ADDITIONAL PAY FOR FLYING DUTY IS AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949. PROVIDES THAT ORDERS TO FLYING DUTY ARE EFFECTIVE FROM DATE STATED THEREIN. THAT THE DATE STATED MAY NOT BE PRIOR TO THE DATE THE ORDERS ARE ISSUED AND THAT A MEMBER "WILL NOT BE ENTITLED TO AVIATION PAY PRIOR TO THE DATE HE REPORTS FOR AND ENTERS UPON DUTY UNDER HIS ORDERS.'.

B-147871, JAN. 23, 1962

TO MICHAEL L. STEPHENS, AC3, 534 71 46:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1961, REQUESTING REVIEW OF SETTLEMENT OF JULY 20, 1961, WHICH DISALLOWED YOUR CLAIM FOR AVIATION PAY FOR THE PERIOD FEBRUARY 1 TO MARCH 14, 1961. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NO RECORD HAS BEEN FOUND THAT ORDERS WERE ISSUED BY COMPETENT AUTHORITY PLACING YOU IN FLIGHT STATUS PRIOR TO MARCH 15, 1961.

THE RECORD INDICATES THAT DURING THE PERIOD FEBRUARY 1, 1961, THROUGH MARCH 14, 1961, YOU WERE ASSIGNED TO AN OPERATION FLIGHT CREW AS A CREW MEMBER AND THAT YOU WOULD HAVE BEEN ENTITLED TO AVIATION PAY IF COMPETENT ORDERS HAD BEEN ISSUED PLACING YOU IN A FLIGHT STATUS AT THAT TIME.

ADDITIONAL PAY FOR FLYING DUTY IS AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949. SECTION 204 (A) OF THAT ACT, 63 STAT. 809 (37 U.S.C. 235), PROVIDES IN PERTINENT PART AS FOLLOWS:

"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.'

PARAGRAPH 044086-1-C (1), NAVY COMPTROLLER MANUAL, PROVIDES THAT ORDERS TO FLYING DUTY ARE EFFECTIVE FROM DATE STATED THEREIN; THAT THE DATE STATED MAY NOT BE PRIOR TO THE DATE THE ORDERS ARE ISSUED AND THAT A MEMBER "WILL NOT BE ENTITLED TO AVIATION PAY PRIOR TO THE DATE HE REPORTS FOR AND ENTERS UPON DUTY UNDER HIS ORDERS.'

UNDER THE PERTINENT STATUTE AND REGULATIONS, YOUR RIGHT TO AVIATION PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS DIRECTING YOU TO PARTICIPATE IN FREQUENT AND REGULAR AERIAL FLIGHTS. WHILE IT APPEARS THAT YOU PERFORMED FLIGHTS DURING THE PERIOD INVOLVED, IT HAS NOT BEEN ESTABLISHED THAT SUCH FLIGHTS WERE PERFORMED PURSUANT TO ORDERS ISSUED BY COMPETENT AUTHORITY AND THEREFORE YOUR CLAIM LACKS ONE ESSENTIAL ELEMENT REQUIRED BY THE STATUTE AND REGULATIONS. IN THE ABSENCE OF COMPETENT ORDERS PLACING YOU IN A FLYING STATUS PRIOR TO MARCH 15, 1961, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JULY 20, 1961, IS SUSTAINED. YOUR ATTENTION IS INVITED, HOWEVER, TO THE PROVISIONS OF 10 U.S.C. 1552 WHICH AUTHORIZE THE SECRETARY OF THE NAVY, UNDER PROCEDURES ESTABLISHED BY HIM TO CORRECT ANY MILITARY RECORD WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.