B-155737, JAN. 27, 1965

B-155737: Jan 27, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

JR.: WE HAVE RECEIVED FROM THE FINANCE CENTER. CONTAIN NO EVIDENCE SHOWING THAT THE SUSPENSION WAS SUBSEQUENTLY REMOVED. IT IS SPECIFIED IN PARAGRAPH 4A/4) (A) THAT AN ARMY AVIATOR IS TO BE CONSIDERED AS INCAPACITATED FOR FLYING DUTY BECAUSE OF PHYSICAL INJURIES OR MEDICAL REASONS. WHEN A MEDICAL EXAMINATION REVEALS SUCH DEFECTS ARE NOT COMPATIBLE WITH FLYING STATUS DUTY. IT IS THERE PROVIDED THAT SUCH A MEMBER WILL BE SUSPENDED FROM FLYING STATUS WHEN SO FOUND PHYSICALLY DISQUALIFIED. THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON THE PROVISIONS OF PARAGRAPH 2 -62J OF ARMY REGULATIONS 37-104 WHICH PROVIDES THAT A MEMBER IS NOT ENTITLED TO RECEIVE INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION.

B-155737, JAN. 27, 1965

TO LIEUTENANT COLONEL GUSTAVE A. PEYER, JR.:

WE HAVE RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, YOUR FIRST INDORSEMENT ON YOUR COPY OF OUR SETTLEMENT OF SEPTEMBER 18, 1964, WHICH DISALLOWED YOUR CLAIM FOR FLYING PAY FOR THE PERIOD MAY 11 TO JUNE 30, 1964. IN THAT INDORSEMENT YOU REQUEST REVIEW OF THE SETTLEMENT OF SEPTEMBER 18, 1964, ON THE BASIS OF THE PROVISIONS OF PARAGRAPH 2 60.1A OF ARMY REGULATIONS 37-104.

THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY CONTAIN EVIDENCE SHOWING THAT YOU HAD MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF MAY 1964 PRIOR TO THE SUSPENSION OF YOUR FLYING STATUS ON MAY 11, 1964, UNDER THE PROVISIONS OF PARAGRAPH 4A (4) (A) OF ARMY REGULATIONS 600-107. THOSE RECORDS, HOWEVER, CONTAIN NO EVIDENCE SHOWING THAT THE SUSPENSION WAS SUBSEQUENTLY REMOVED. IT IS SPECIFIED IN PARAGRAPH 4A/4) (A) THAT AN ARMY AVIATOR IS TO BE CONSIDERED AS INCAPACITATED FOR FLYING DUTY BECAUSE OF PHYSICAL INJURIES OR MEDICAL REASONS, EXCEPT AS A RESULT OF AN AVIATION ACCIDENT, WHEN A MEDICAL EXAMINATION REVEALS SUCH DEFECTS ARE NOT COMPATIBLE WITH FLYING STATUS DUTY, AND IT IS THERE PROVIDED THAT SUCH A MEMBER WILL BE SUSPENDED FROM FLYING STATUS WHEN SO FOUND PHYSICALLY DISQUALIFIED.

THE DISALLOWANCE OF YOUR CLAIM WAS BASED ON THE PROVISIONS OF PARAGRAPH 2 -62J OF ARMY REGULATIONS 37-104 WHICH PROVIDES THAT A MEMBER IS NOT ENTITLED TO RECEIVE INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION, UNLESS THE SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS COMPLIED WITH, EXCEPT WHEN THE SUSPENSION IS THE RESULT OF AN AVIATION ACCIDENT. THAT REGULATION FURTHER PROVIDES THAT WHEN THE SUSPENSION FROM FLYING STATUS EXCEEDS 3 MONTHS, THE MEMBER IS ENTITLED TO INCENTIVE PAY FOR AERIAL FLIGHTS ONLY FROM THE DATE OF REPORTING FOR DUTY AFTER THE SUSPENSION HAS BEEN REMOVED AND THAT THERE CAN BE NO RETROACTIVE NULLIFICATION OF A SUSPENSION VALID WHEN MADE AND VALID DURING THE ENTIRE PERIOD IT WAS IN EFFECT.

PARAGRAPH 2-60.1A OF ARMY REGULATIONS 37-104, UPON WHICH YOU BASE YOUR REQUEST FOR REVIEW, READS AS FOLLOWS:

"ANY MEMBER FOR WHOM THE FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED, WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED OR BECOMES INCAPACITATED FOR ANY REASON OTHER THAN AS A RESULT OF PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED, WILL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR A 3-MONTH GRACE PERIOD AUTHORIZED BY SECTION 10 OF EXECUTIVE ORDER 105152, COMMENCING ON THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE INCAPACITY OCCURRED.'

THE ABOVE-QUOTED REGULATIONS WERE ISSUED UNDER AUTHORITY OF STATUTORY PROVISIONS SUCH AS THOSE CONTAINED IN SECTION 514 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1964, PUB.L. 88-149, 77 STAT. 266 (SEE 41 COMP. GEN. 173), WHICH READS AS FOLLOWS:

"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 301 OF TITLE 37, U.S.C. 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 FIFTEEN YEARS, OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS.'

IT THUS IS CLEAR THAT THE MEMBERS "FOR WHOM THE FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED" TO WHOM THE QUOTED REGULATIONS REFER ARE MEMBERS WHO ARE ENTITLED TO FLYING PAY WITHOUT PERFORMING THE QUALIFYING FLIGHTS, UNDER THE CONDITIONS PRESCRIBED IN CLAUSES (1) AND (2) OF THE QUOTED PROVISIONS OF LAW. THERE IS NO SHOWING THAT YOU WERE A MEMBER FOR WHOM THE FLIGHT REQUIREMENTS HAVE BEEN SO SUSPENDED. ACCORDINGLY, SUCH REGULATIONS ARE NOT FOR APPLICATION IN YOUR CASE.

YOUR CLAIM WAS PROPERLY DISALLOWED IN THE SETTLEMENT OF SEPTEMBER 18, 1964, ON THE BASIS OF THE REGULATIONS THERE CITED AND, UPON REVIEW, SUCH SETTLEMENT IS SUSTAINED. YOUR COPY OF THE SETTLEMENT IS ENCLOSED.