B-157884, NOV. 17, 1965

B-157884, NOV. 17, 1965

TO COLONEL KENNETH H. POWERS, USAF:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1965, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION UNDER DATE OF SEPTEMBER 28, 1965, IN DISALLOWING YOUR CLAIM FOR FLYING PAY FOR THE PERIOD FEBRUARY 1, 1965, TO APRIL 30, 1965, INCLUSIVE, AT THE RATE OF$245 PER MONTH, WHILE YOU WERE ATTACHED TO THE 6922D SECURITY WING, USAFSS.

THE RECORD SHOWS THAT ON JANUARY 18, 1965, YOU WERE FOUND MEDICALLY INCAPACITATED FOR FLYING AND THE OFFICIAL DIAGNOSIS MADE AT THAT TIME IS SHOWN AS "DIABETES MELLITUS CODE D 2600 (4200 - ARTERIOSCLEROTIC HEART DISEASE).' YOU WERE THEREFORE SUSPENDED FROM FLYING FOR A PERIOD NOT TO EXTEND BEYOND THE LAST DAY OF APRIL 1965. MEDICAL TESTS ACCOMPLISHED ON APRIL 27, 1965, ELIMINATED THE DIAGNOSIS OF DIABETES MELLITUS AND ON APRIL 29, 1965, YOUR INCAPACITY FOR FLYING BY REASON OF ARTERIOSCLEROTIC HEART DISEASE WAS CONFIRMED.

YOU CONTEND THAT SINCE YOUR HEART DISEASE WAS NOT CONFIRMED AS INCAPACITATING UNTIL TWO DAYS AFTER IT WAS ESTABLISHED THAT YOU NO LONGER WERE INCAPACITATED BY REASON OF DIABETES MELLITUS, YOU SHOULD HAVE BEEN RETURNED TO FLYING STATUS ON APRIL 27, 1965, AND RETAINED THEREON UNTIL PERMANENTLY SUSPENDED ON APRIL 29, 1965. YOU FURTHER CONTEND THAT SINCE YOU WERE IN CATEGORY 3, IT MUST BE PRESUMED THAT YOU COULD HAVE FLOWN THE 12 HOURS NEEDED TO QUALIFY FOR FLIGHT PAY FOR FEBRUARY, MARCH AND APRIL.

INCENTIVE PAY FOR HAZARDOUS DUTY, INCLUDING FLYING DUTY, IS AUTHORIZED BY 37 U.S.C. 301, SUCH PAYMENTS BEING "SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT.' THE PRESIDENT PRESCRIBED GENERAL REGULATIONS IN EXECUTIVE ORDER 11157 DATED JUNE 22, 1964, 29 F.R. 7973, SECTION 113 OF WHICH AUTHORIZES THE SECRETARIES OF THE DEPARTMENTS CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PRESIDENTIAL REGULATIONS. ACCORDINGLY THE SECRETARY OF THE AIR FORCE HAS ISSUED DETAILED REGULATIONS, PUBLISHED IN THE AIR FORCE MANUAL, GOVERNING PAYMENT OF INCENTIVE PAY FOR FLYING DUTY IN VARIOUS SITUATIONS, INCLUDING SUSPENSIONS FROM FLYING STATUS BECAUSE OF PHYSICAL INCAPACITY.

PARAGRAPH 2-33 OF AFM 35-13 PRESCRIBES THE PROCEDURE FOR REMOVING SUSPENSIONS SUCH AS YOURS. THIS PARAGRAPH STATES, IN PART,"BEFORE A SUSPENSION FOR PHYSICAL DISQUALIFICATION MAY BE REMOVED, THE OFFICER MUST BE PHYSICALLY QUALIFIED FOR FLYING DUTY.' PARAGRAPH 2-34 SPECIFIES THE OFFICERS WHO ARE AUTHORIZED TO REMOVE SUSPENSIONS FROM FLYING STATUS AFTER THE PROVISIONS OF PARAGRAPH 2-33 HAVE BEEN COMPLIED WITH. THE FORM OF ORDERS REVOKING SUSPENSION IS SHOWN IN PARAGRAPH 135 OF AFM 10-3, WHICH ALSO PROVIDES THAT THE EFFECTIVE DATE OF REVOCATION OF THE SUSPENSION IS THE DATE THE ORDER IS ISSUED.

THERE IS NOTHING IN THE LAW OR IMPLEMENTING REGULATIONS WHICH COULD BE CONSTRUED AS AUTHORITY FOR AUTOMATIC REVOCATION OF A SUSPENSION AND RESTORATION TO FLYING STATUS UPON COMPLETION OF A MEDICAL TEST. FURTHERMORE, ALTHOUGH YOUR HEART CONDITION WAS NOT CONFIRMED AS INCAPACITATING UNTIL TWO DAYS AFTER THE DIABETES CONDITION WAS ELIMINATED FROM THE DIAGNOSIS, IT IS CLEAR THAT SUCH HEART CONDITION WAS SUSPECTED AT LEAST AS EARLY AS JANUARY 1965 AND IT APPEARS UNLIKELY THAT YOU COULD HAVE BEEN FOUND PHYSICALLY QUALIFIED FOR FLYING DUTY ON APRIL 27, 1965, WHILE THAT CONDITION WAS UNDER MEDICAL CONSIDERATION. REGARDLESS OF THE POSSIBILITIES, HOWEVER, THE FACT REMAINS THAT NO MEDICAL DETERMINATION WAS MADE ON APRIL 27, 1965, THAT YOU WERE THEN PHYSICALLY QUALIFIED FOR FLYING AND NO ORDER WAS ISSUED BY COMPETENT AUTHORITY REVOKING THE SUSPENSION OF YOUR FLYING STATUS PRIOR TO APRIL 30, 1965.

SINCE YOU WERE GROUNDED BY REASON OF PHYSICAL INCAPACITY DURING THE ENTIRE PERIOD OF YOUR CLAIM, FEBRUARY 1, 1965, TO APRIL 30, 1965, INCLUSIVE, THERE IS NO AUTHORITY FOR PAYMENT OF FLYING PAY. THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

WITH RESPECT TO YOUR INQUIRY AS TO ANY FURTHER ACTION YOU CAN TAKE IN THIS MATTER YOU ARE ADVISED THAT UNDER 10 U.S.C. 1552 THE SECRETARY OF THE AIR FORCE ACTING THROUGH THE BOARD FOR CORRECTION OF MILITARY RECORDS IS AUTHORIZED TO CORRECT ANY MILITARY RECORD OF HIS DEPARTMENT IN SITUATIONS WHERE HE FINDS SUCH ACTION "NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.'