B-158817, MAY 26, 1966

B-158817, MAY 26, 1966

TO ACCOUNTING AND FINANCE OFFICER, HEADQUARTERS UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1966, WITH ENCLOSURES, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $101.36, TO CAPTAIN JONES E. COPELAND, AIR FORCE RESERVE, REPRESENTING PAY FOR ADDITIONAL INACTIVE DUTY FLYING TRAINING PERIODS PERFORMED BY HIM AS A FLIGHT MEDICAL OFFICER FROM OCTOBER 1963 TO MARCH 1964. THE AMOUNT OF THE VOUCHER INCLUDES BASIC PAY AND INCENTIVE PAY FOR HAZARDOUS DUTY AS A NON-CREW MEMBER FOR FOUR PERIODS OF INACTIVE DUTY FLYING TRAINING. THE QUESTION ARISES BECAUSE CAPTAIN COPELAND PERFORMED THE ADDITIONAL TRAINING DUTY AS A NON-CREW MEMBER, WHEREAS THE REGULATIONS THEN IN EFFECT, AFR 45-10, PARAGRAPH 22, PROVIDED IN PART AS FOLLOWS:

"EACH ADDITIONAL TRAINING PERIOD MUST LAST AT LEAST FOUR HOURS. DURING THAT TIME THE RESERVIST MUST PARTICIPATE AS A CREW MEMBER IN AT LEAST ONE AERIAL FLIGHT.'

A MEMBER OF A RESERVE FORCE WHO IS NOT SERVING ON EXTENDED ACTIVE DUTY IS ENTITLED TO BASIC PAY FOR PERIODS OF TRAINING DUTY UNDER AUTHORITY OF 37 U.S.C. 206, WHICH PROVIDES THAT SUCH PAYMENTS SHALL BE MADE "UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED" AND WHICH DIRECTS THE SECRETARY TO PRESCRIBE MINIMUM STANDARDS TO BE MET AND A MINIMUM NUMBER OF TRAINING PERIODS TO BE COMPLETED FOR QUALIFICATION FOR PAY AS WELL AS A MAXIMUM NUMBER OF TRAINING PERIODS THAT MAY BE COUNTED FOR PAY PURPOSES.

BY ORDERS DATED JUNE 28, 1963, THE MEMBER WAS PLACED IN A FLYING STATUS AND REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS DURING THE PERIOD JUNE 29, 1963, THROUGH JUNE 30, 1964, AS A NON-CREW MEMBER. HE HAD BEEN DESIGNATED A "FLIGHT MEDICAL OFFICER," PRESUMABLY UNDER AFM 35-13 DATED SEPTEMBER 10, 1962, WHICH DISTINGUISHES BETWEEN SUCH ,DESIGNATIONS" LISTED IN CHAPTER 6 AND AERONAUTICAL RATINGS LISTED IN CHAPTER 1. IN CHAPTER 4, PARAGRAPH 4-5 OF AFM 35-13, OFFICERS WHO DO NOT HOLD AERONAUTICAL "RATINGS" ARE PROHIBITED FROM BEING PLACED ON FLYING STATUS AS CREW MEMBERS WITHOUT THE PRIOR APPROVAL OF THE CHIEF OF STAFF, USAF. THEREFORE IT APPEARS THAT UNDER THE APPLICABLE PROVISIONS OF THE AIR FORCE MANUAL, CAPTAIN COPELAND COULD NOT QUALIFY FOR SERVICE AS A CREW MEMBER.

REGULATIONS GOVERNING PAYMENT OF RESERVISTS FOR INACTIVE DUTY TRAINING DURING THE PERIOD COVERED BY THE VOUCHER IN QUESTION WERE CONTAINED IN AFR 45-10, DATED MAY 21, 1957, SECTION B OF WHICH COVERS TRAINING PERIODS IN ADDITION TO THOSE AUTHORIZED UNDER SECTION A. PARAGRAPH 22, PARTIALLY QUOTED ABOVE, IS INCLUDED IN SECTION B, THE PURPOSE OF WHICH IS STATED IN PARAGRAPH 19 AS AUTHORIZING ADDITIONAL PAID INACTIVE DUTY TRAINING PERIODS WHICH ARE NEEDED TO ACCOMPLISH THE REQUIRED AIR FORCE RESERVE FLYING TRAINING. PARAGRAPH 20 AS CHANGED APRIL 11, 1958, RESTRICTS APPLICATION OF THE SECTION AS FOLLOWS:

"THIS SECTION APPLIES ONLY TO OFFICERS HOLDING A CURRENTLY EFFECTIVE AERONAUTICAL RATING AND WHO ARE ON FLYING STATUS, AND OTHER PERSONS WHO OCCUPY AIRCREW POSITIONS, WHEN ASSIGNED TO UNITS OF TRAINING CATEGORY A ORGANIZED TO SERVE AS UNITS IN THE EVENT OF MOBILIZATION.'

YOU STATE THAT UNDER DATE OF MAY 28, 1963, THE CONTINENTAL AIR COMMAND ISSUED SUPPLEMENT NO. 1 TO PARAGRAPH 20, AFR 45-10. PARAGRAPH 20 AS STATED IN THE SUPPLEMENT IS AS FOLLOWS:

"AN AIRCREW MEMBER, FOR THE PURPOSE OF THIS REGULATION, INCLUDES THE PILOT, COPILOT, NAVIGATOR, FLIGHT ENGINEER, FLIGHT MECHANIC OR AIRBORNE RADIO OPERATOR (AS APPROPRIATE TO THE TYPE AIRCRAFT WITH WHICH THE CATEGORY A UNIT IS EQUIPPED), AIRCRAFT LOAD MASTER, RESCUE SURVIVAL TECHNICIAN (AFSC B921XX), FLIGHT SURGEON, FLIGHT MEDICAL OFFICER, FLIGHT NURSE, AND AEROMEDICAL TECHNICIAN. THIS DOES NOT NECESSARILY AGREE WITH DEFINITIONS IN OTHER AIR FORCE DIRECTIVES. THE ABOVE PERSONNEL ARE LISTED ONLY TO DEFINE THOSE AIRCREW MEMBERS IN CATEGORY A UNITS WHO ARE ENTITLED TO COMPENSATION FOR THE ADDITIONAL PAID INACTIVE DUTY FLYING TRAINING PERIODS. AIR RESERVE TECHNICIANS ARE AUTHORIZED ADDITIONAL PAID INACTIVE DUTY FLYING TRAINING PERIODS AS PRESCRIBED IN SECTION B, EXCEPT DURING ON- DUTY PERIODS IN EITHER A CIVILIAN CAPACITY OR WHILE ENGAGED IN A UNIT TRAINING ASSEMBLY, EQUIVALENT, OR APPROPRIATE DUTY.'

YOU FURTHER STATE THAT CONAC SUPPLEMENT NO. 1 TO PARAGRAPH 20 WAS APPARENTLY BASED ON A LETTER FROM HEADQUARTERS, UNITED STATES AIR FORCE (AFPMP-R) DATED MARCH 15, 1960, WHICH STATED NEW CRITERIA WITH RESPECT TO ADDITIONAL FLYING TRAINING PERIODS TO BECOME EFFECTIVE JULY 1, 1960, BUT THAT THE LETTER OF MARCH 15, 1960, WAS RESCINDED BY THE ISSUING AUTHORITY ON JUNE 27, 1960.

PARAGRAPHS 20 AND 22 OF AFR 45-10 WERE CHANGED DECEMBER 3, 1965, TO READ, IN PERTINENT PART, AS FOLLOWS:

"20. THIS SECTION APPLIES ONLY TO OFFICERS HOLDING A CURRENTLY EFFECTIVE AERONAUTICAL RATING AND WHO ARE ON FLYING STATUS, AND OTHER PERSONS WHO OCCUPY AIRCREW POSITIONS, AND FLIGHT MEDICAL OFFICERS ON FLYING STATUS AS NON-CREW MEMBERS WHEN ASSIGNED TO UNITS OF TRAINING CATEGORY A ORGANIZED TO SERVE AS UNITS IN THE EVENT OF MOBILIZATION.'

"22. EACH ADDITIONAL TRAINING PERIOD MUST LAST AT LEAST FOUR HOURS. DURING THAT TIME THE RESERVE MEMBER MUST PARTICIPATE AS A CREW MEMBER OR AS A FLIGHT MEDICAL OFFICER IN AT LEAST ONE AERIAL FLIGHT. * * *"

SINCE CONAC SUPPLEMENT NO. 1 APPARENTLY WAS ISSUED WITHOUT AUTHORITY OF THE SECRETARY OF THE AIR FORCE AND IF GIVEN EFFECT WOULD EXPAND THE LANGUAGE OF THE VALID REGULATIONS CONTAINED IN AFR 45-10, IT DOES NOT PROVIDE A LEGAL BASIS FOR PAYMENT OF THE VOUCHER TRANSMITTED WITH YOUR LETTER OR FOR ANY OTHER ADDITIONAL TRAINING PERIODS.

IN YOUR LETTER IT IS STATED THAT CAPTAIN COPELAND CLAIMS PAYMENT FOR THE ADDITIONAL TRAINING PERIODS ON THE BASIS OF DE FACTO ENTITLEMENT, I.E., ON THE BASIS THAT THE DUTY WAS PERFORMED IN GOOD FAITH, WITHOUT INTENT TO DEFRAUD AND UNDER COLOR OF AUTHORITY (CONAC SUPPLEMENT NO. 1 TO PARAGRAPH 20, AFR 45-10).

THERE IS NOTHING IN THE FILE WHICH WOULD INDICATE THAT CAPTAIN COPELAND DID NOT PERFORM THE DUTY IN QUESTION IN GOOD FAITH. THE DE FACTO DOCTRINE HAS BEEN APPLIED TO ALLOW RETENTION OF PAY IN CERTAIN CASES, PARTICULARLY WHERE A PERSON SERVED UNDER A DEFECTIVE APPOINTMENT BUT UNDER COLOR OF AUTHORITY. SEE 31 COMP. GEN. 335. THE PHRASE "COLOR OF AUTHORITY" CONTEMPLATES THAT THE INCUMBENT OF THE OFFICE BE SERVING PURSUANT TO AN APPOINTMENT WHICH HE WAS JUSTIFIED IN BELIEVING WAS COMPETENT TO INVEST HIM WITH SUCH OFFICE. 34 COMP. GEN. 132, 135. CAPTAIN COPELAND KNEW OR SHOULD HAVE KNOWN THAT HIS RIGHTS WITH RESPECT TO ADDITIONAL PAID INACTIVE DUTY TRAINING PERIODS WERE GOVERNED BY THE PROVISIONS OF AFR 45-10 THEN IN EFFECT. THE FORM OF CONAC SUPPLEMENT NO. 1 WAS SUCH AS TO PUT HIM ON NOTICE THAT IT WAS SUPPLEMENTAL TO, RATHER THAN AN ACTUAL AMENDMENT OF, SUCH REGULATIONS AND THAT IT WAS ISSUED BY A COMMAND WHICH HAS NO INHERENT AUTHORITY TO AMEND SECRETARIAL REGULATIONS SUCH AS AFR 45-10. NEITHER THE REGULATIONS THEN IN EFFECT NOR AS AMENDED DECEMBER 3, 1965, DEFINED AN "AIRCREW MEMBER" AS INCLUDING A FLIGHT MEDICAL OFFICER AND THE SUPPLEMENT WAS AT VARIANCE WITH SUCH REGULATIONS TO THAT EXTENT. THE SUPPLEMENT APPRISED HIM OF THE FACT THAT THE DEFINITION OF AN "AIRCREW MEMBER" THEREIN CONTAINED "DOES NOT NECESSARILY AGREE WITH DEFINITIONS IN OTHER AIR FORCE DIRECTIVES.' IN SUCH CIRCUMSTANCES AND SINCE THE SUPPLEMENT MAY NOT BE VIEWED AS HAVING BEEN ISSUED UNDER AUTHORITY OF LAW, IT MAY NOT BE VIEWED AS FURNISHING SUFFICIENT "COLOR OF AUTHORITY" WITHIN THE MEANING OF THE DE FACTO RULE. CF., 40 COMP. GEN. 642, AND B-148716, JUNE 22, 1962.

THE VOUCHER SUBMITTED WITH YOUR LETTER, NOT BEING APPROVED FOR PAYMENT, IS RETAINED IN THIS OFFICE.