B-148021, FEB. 15, 1962

B-148021: Feb 15, 1962

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DEPARTMENT OF THE NAVY: THERE WAS RECEIVED BY THIRD ENDORSEMENT DATED JANUARY 22. THE REQUEST WAS ASSIGNED SUBMISSION NO. LIEUTENANT KELLEY WAS DIRECTED TO PROCEED AND REPORT BY JULY 7. UPON COMPLETION OF SUCH TEMPORARY DUTY HE WAS TO REPORT AT SAN FRANCISCO. ARISES FROM THE FACT THAT HE WAS NOT ORDERED TO DUTY INVOLVING FLYING AS A NONCREW MEMBER BY THE COMMANDANT OF THE MARINE CORPS PRIOR TO THE DISPATCH OF AUGUST 1961. YOU EXPRESS THE BELIEF THAT HE SHOULD HAVE BEEN DETAILED TO DUTY INVOLVING FLYING FOR THE PERIOD OF TEMPORARY DUTY UNDER INSTRUCTION AT THE NAVAL GUNFIRE AIR SPOTTER COURSE AS ASSIGNED BY THE ORDERS OF MAY 17. SAINT PAUL (CA-73) THAT THIS WAS NOT DONE. * * *" UNDER THE STATUTE THE RIGHT TO THE ADDITIONAL PAY FOR HAZARDOUS DUTY IS CONTINGENT UPON THE EXISTENCE OF COMPETENT ORDERS TO PERFORM SUCH DUTY AS WELL AS THE PERFORMANCE OF THE DUTIES INCIDENT TO SUCH ORDERS.

B-148021, FEB. 15, 1962

TO LIEUTENANT (JG) L. R. ROSEN, USNR, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

THERE WAS RECEIVED BY THIRD ENDORSEMENT DATED JANUARY 22, 1962, YOUR LETTER OF NOVEMBER 25, 1961, WITH ENCLOSURES, REQUESTING ADVANCE DECISION AS TO THE LEGALITY OF CREDITING FLIGHT PAY TO THE ACCOUNT OF FIRST LIEUTENANT JOHN D. KELLEY, 076121/0802, USMC, FOR THE PERIODS JULY 7 THROUGH 28 AND AUGUST 7 THROUGH 28, 1961. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-624 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY ORDERS DATED MAY 17, 1961, UPON ACCEPTANCE OF A REGULAR COMMISSION IN THE U.S. MARINE CORPS, LIEUTENANT KELLEY WAS DIRECTED TO PROCEED AND REPORT BY JULY 7, 1961, TO THE COMMANDING GENERAL, LANDING FORCE TRAINING UNIT, AMPHIBIOUS TRAINING COMMAND, PACIFIC FLEET, NAVAL AMPHIBIOUS BASE, CORONADO, SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A PERIOD OF ABOUT TWO WEEKS IN THE NAVAL GUNFIRE AIR SPOTTER (G-3) COURSE. UPON COMPLETION OF SUCH TEMPORARY DUTY HE WAS TO REPORT AT SAN FRANCISCO, CALIFORNIA, FOR FURTHER TRANSPORTATION, IF NECESSARY, TO SUCH PLACE AS THE U.S.S. SAINT PAUL (CA-73) MIGHT BE LOCATED, FOR DUTY. THOSE ORDERS CITED AS AUTHORITY COMMANDANT OF THE MARINE CORPS MESSAGE 162029Z OF MAY 1961, WHICH DIRECTED THAT PERMANENT CHANGE OF STATION ORDERS BE ISSUED TO FIRST LIEUTENANT JOHN D. KELLEY.

LIEUTENANT KELLEY REPORTED FOR THE ASSIGNED TEMPORARY DUTY ON JULY 7, 1961, AND COMPLETED IT ON JULY 28, 1961. HE REPORTED ABOARD THE U.S.S. SAINT PAUL (CA-73) ON AUGUST 7, 1961, AND ON THE SAME DATE THE COMMANDING OFFICER OF THE VESSEL ASSIGNED HIM TO DUTY INCLUDING DUTY AS TECHNICAL AIR OBSERVER AND ASSISTANT FLIGHT DECK OFFICER. COMMANDANT OF THE MARINE CORPS DISPATCH OF AUGUST 29, 1961, ASSIGNED LIEUTENANT KELLEY TO DUTY INVOLVING FLYING AS A TECHNICAL OBSERVER, NONCREW MEMBER, EFFECTIVE THAT DATE. HIS FLIGHT PAY AS A NONCREW MEMBER BEGAN ON THAT DATE AND CONTINUED THROUGH SEPTEMBER AND OCTOBER 1961. A TRANSCRIPT OF HIS FLIGHT LOG, HOWEVER, SHOWS FLIGHTS TOTALING 20.7 HOURS DURING THE PERIOD JULY 11 TO 28, 1961, AS WELL AS 13.6 HOURS IN OCTOBER 1961.

YOUR DOUBT AS TO WHETHER LIEUTENANT KELLEY SHOULD BE CREDITED WITH FLIGHT PAY FOR THE PERIODS JULY 7 TO 28, 1961, AND AUGUST 7 TO 28, 1961, ARISES FROM THE FACT THAT HE WAS NOT ORDERED TO DUTY INVOLVING FLYING AS A NONCREW MEMBER BY THE COMMANDANT OF THE MARINE CORPS PRIOR TO THE DISPATCH OF AUGUST 1961. YOU EXPRESS THE BELIEF THAT HE SHOULD HAVE BEEN DETAILED TO DUTY INVOLVING FLYING FOR THE PERIOD OF TEMPORARY DUTY UNDER INSTRUCTION AT THE NAVAL GUNFIRE AIR SPOTTER COURSE AS ASSIGNED BY THE ORDERS OF MAY 17, 1961, AND TO DUTY INVOLVING FLYING AS A TECHNICAL AIR OBSERVER ABOARD THE U.S.S. SAINT PAUL (CA-73) AS ASSIGNED BY THE COMMANDING OFFICER ON AUGUST 7, 1961. IT SEEMS CLEAR, HOWEVER, FROM A LETTER DATED OCTOBER 5, 1961, FROM THE COMMANDANT OF THE MARINE CORPS TO THE COMMANDING OFFICER, U.S.S. SAINT PAUL (CA-73) THAT THIS WAS NOT DONE.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 235, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/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; * * *"

UNDER THE STATUTE THE RIGHT TO THE ADDITIONAL PAY FOR HAZARDOUS DUTY IS CONTINGENT UPON THE EXISTENCE OF COMPETENT ORDERS TO PERFORM SUCH DUTY AS WELL AS THE PERFORMANCE OF THE DUTIES INCIDENT TO SUCH ORDERS. THE STATUTE ADMITS OF NO EXCEPTIONS OR DISCRETION IN THE MATTER. PARAGRAPH 4015-4, MARINE CORPS PERSONNEL MANUAL, EFFECTIVE JULY 1,1961, PROVIDES THAT ASSIGNMENT TO DUTY INVOLVING FLYING IS ACCOMPLISHED BY MEANS OF FLIGHT ORDERS WHICH PLACE PERSONNEL IN A FLIGHT STATUS, AND THAT IN THE CASE OF OFFICERS SUCH ORDERS SHALL BE ISSUED BY THE COMMANDANT OF THE MARINE CORPS. PRIOR TO THAT DATE A SIMILAR PROVISION WAS CONTAINED IN PARAGRAPH 7067, MARINE CORPS MANUAL. THUS ONLY ORDERS OF THE COMMANDANT OF THE MARINE CORPS ARE "COMPETENT ORDERS" FOR FLIGHT PAY PURPOSES IN THE CASE OF OFFICERS OF THE MARINE CORPS. PARAGRAPH 044086-1C (1), NAVY COMPTROLLER MANUAL, PROVIDES THAT ORDERS TO FLYING DUTY ARE EFFECTIVE FROM THE DATE STATED THEREIN, AND THAT THE DATE STATED MAY NOT BE PRIOR TO THE DATE THE ORDERS ARE ISSUED.

WHILE THE RECORD INDICATES THAT IT MAY HAVE BEEN INTENDED TO DETAIL LIEUTENANT KELLEY TO DUTY INVOLVING FLYING AS EARLY AS JULY 7, 1961, FLIGHT ORDERS WERE NOT ISSUED BY THE COMMANDANT OF THE MARINE CORPS IN HIS CASE PRIOR TO AUGUST 29, 1961, AND THE REGULATIONS DO NOT PERMIT SUCH ORDERS TO BE RETROACTIVE. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF FLIGHT DUTY PAY TO THE ..END :