B-161323, JUNE 23, 1967, 46 COMP. GEN. 877

B-161323: Jun 23, 1967

Additional Materials:

Contact:

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

 

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

PAY - AVIATION DUTY - INCAPACITY PERIOD - FLIGHT PAY ENTITLEMENT AN OFFICER OF THE UNIFORMED SERVICES UNDER ORDERS TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS WHO IS INJURED AS A RESULT OF PARTICIPATING IN PARA-SAIL ACTIVITIES. MAY NOT BE CONSIDERED TO HAVE INCURRED THE INJURY IN THE PERFORMANCE OF HAZARDOUS DUTY TO ENTITLE HIM TO FLIGHT PAY UNDER 37 U.S.C. 301 (A) FOR A PERIOD NOT TO EXCEED 3 MONTHS FOLLOWING HIS INCAPACITY. AS THE ACCIDENT IS NOT WITHIN THE CONTEMPLATION OF PARAGRAPH 101 (B) OF EXECUTIVE ORDER NO. 11157. ABSENT AUTHORITY DESIGNATING PARA-SAIL ACTIVITIES AS HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS PROVIDED. 1967: FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 19.

B-161323, JUNE 23, 1967, 46 COMP. GEN. 877

PAY - AVIATION DUTY - INCAPACITY PERIOD - FLIGHT PAY ENTITLEMENT AN OFFICER OF THE UNIFORMED SERVICES UNDER ORDERS TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS WHO IS INJURED AS A RESULT OF PARTICIPATING IN PARA-SAIL ACTIVITIES, WHETHER DIRECTED OR VOLUNTARY PARTICIPATION, MAY NOT BE CONSIDERED TO HAVE INCURRED THE INJURY IN THE PERFORMANCE OF HAZARDOUS DUTY TO ENTITLE HIM TO FLIGHT PAY UNDER 37 U.S.C. 301 (A) FOR A PERIOD NOT TO EXCEED 3 MONTHS FOLLOWING HIS INCAPACITY, AS THE ACCIDENT IS NOT WITHIN THE CONTEMPLATION OF PARAGRAPH 101 (B) OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, AS AMENDED, ABSENT AUTHORITY DESIGNATING PARA-SAIL ACTIVITIES AS HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS PROVIDED, EVEN THOUGH THE PARA-SAIL ACTIVITY MAY INDIRECTLY RELATE TO THE PROFICIENCY OF THE MEMBER UNDER HIS ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS.

TO THE SECRETARY OF DEFENSE, JUNE 23, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 19, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION WHETHER A MEMBER, UNDER ORDERS TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS, WHO IS INJURED AS A RESULT OF DIRECTED PARA-SAIL ACTIVITIES, MAY BE CONSIDERED TO HAVE INCURRED SUCH INJURY AS A RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY (FLYING) SO AS TO ENTITLE HIM TO FLIGHT PAY FOR NOT TO EXCEED 3 MONTHS FOLLOWING THE INJURY.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 397 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS, WHICH INVOLVE A RATED OFFICER UNDER ORDERS TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS WHO IS INJURED AS A RESULT OF DIRECTED PARA-SAIL ACTIVITIES, ARE AS FOLLOWS:

1. IS THE INJURY THE RESULT OF PERFORMANCE OF HAZARDOUS DUTY (FLYING), AND CAN THE MEMBER BE DEEMED TO HAVE FULFILLED ALL THE REQUIREMENTS FOR PERFORMANCE OF AERIAL FLIGHTS FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE INJURY UNDER SECTION 110, EXECUTIVE ORDER 11157, 22 JUNE 1964?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE THE SAME IF THE MEMBER HAD PARTICIPATED IN THE PARA-SAIL ACTIVITY VOLUNTARILY RATHER THAN HAVING BEEN DIRECTED TO DO SO?

SECTION 301 (A) OF TITLE 37, U.S.C. AUTHORIZES, SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF INCENTIVE PAY FOR THE PERFORMANCE OF CERTAIN SPECIFIED HAZARDOUS DUTIES, INCLUDING (CLAUSES 1 AND 4) DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS; (CLAUSE 5) DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN GLIDER FLIGHTS; AND (CLAUSE 6) DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY. REGULATIONS IMPLEMENTING THAT LAW ARE PRESCRIBED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964, AS AMENDED, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SECTION 101. FOR THE PURPOSES OF THESE REGULATIONS:

(A) THE TERM "AERIAL FLIGHT" SHALL BE CONSTRUED TO MEAN FLIGHT IN AN AIRCRAFT OR GLIDER; AND A FLIGHT SHALL BE DEEMED TO BEGIN WHEN THE AIRCRAFT OR GLIDER TAKES OFF FROM REST AT ANY POINT OF SUPPORT AND TO TERMINATE WHEN IT NEXT COMES TO A COMPLETE STOP AT A POINT OF SUPPORT.

(B) THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH A MEMBER WHO IS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHT IS INJURED OR OTHERWISE INCAPACITATED AS THE RESULT, AS ATTESTED BY THE APPROPRIATE MEDICAL AUTHORITY OF THE UNIFORMED SERVICE CONCERNED, OF (1) JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF, OR (2) PARTICIPATION IN ANY DULY AUTHORIZED AERIAL FLIGHT OR OTHER AIRCRAFT OR GLIDER OPERATIONS.

SEC. 110. ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY, OR MULTIPLE HAZARDOUS DUTIES, AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF ANY SUCH HAZARDOUS DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF ALL HAZARDOUS DUTIES WHICH HE IS REQUIRED BY COMPETENT ORDERS TO PERFORM, FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY. UNDER SECTION 107 (A) OF THE EXECUTIVE ORDER, MEMBERS QUALIFIED AS GLIDER PERSONNEL MUST BE REQUIRED BY COMPETENT ORDERS TO "PARTICIPATE FREQUENTLY AND REGULARLY IN GLIDER FLIGHTS," AND SECTION 108 (A) DEFINES THE TERM "DUTY INVOLVING PARACHUTE JUMPING AS AN ESSENTIAL PART OF MILITARY DUTY" TO MEAN, AMONG OTHER THINGS, MEMBERS WHO ARE "REQUIRED BY COMPETENT ORDERS TO ENGAGE IN PARACHUTE JUMPING FROM AN AIRCRAFT IN AERIAL FLIGHT.'

IT IS STATED IN THE COMMITTEE ACTION THAT A PARA-SAIL IS A SPECIALLY DESIGNED LIFTING DEVICE, FASHIONED OF CLOTH, WHICH, WHEN TOWED ALOFT AND RELEASED DESCENDS AT A PREDETERMINED VERTICAL SPEED AND A PARTICULAR FORWARD SPEED. THE PARA-SAIL IS ATTACHED TO THE RIDER BY STRAPS AND HELD BY ATTENDANTS SO AS TO CATCH THE PREVAILING WIND. A ROPE ATTACHED TO THE HARNESS STRAPS IS PULLED BY A TOWING VEHICLE WHILE THE RIDER RUNS ALONG IN THE DIRECTION OF THE MOTION. WHEN THE PARA-SAIL AND THE RIDER ARE AIRBORNE AT A PLANNED HEIGHT, IT IS STATED THE TOW ROPE IS RELEASED AND THE PARA-SAIL AND RIDER THEN DESCEND. IT IS FURTHER STATED THAT IN THE AIR FORCE PARA-SAIL TRAINING IS GIVEN PILOT/NAVIGATOR TRAINING STUDENTS TO ACQUAINT THEM WITH PARACHUTE LANDING TECHNIQUES.

THE COMMITTEE ACTION POINTS OUT THAT PARA-SAIL OPERATIONS ARE NOT SPECIFICALLY LISTED AMONG THE "HAZARDOUS DUTIES" IN 37 U.S.C. 301 AND EXECUTIVE ORDER NO. 11157 AND THE VIEW IS EXPRESSED THAT INJURIES RESULTING FROM SUCH ACTIVITIES ARE NOT INJURIES RESULTING FROM HAZARDOUS DUTY WITHIN THE MEANING OF SECTION 110 OF THE EXECUTIVE ORDER SO AS TO EXEMPT THE INJURED MEMBER FROM MEETING REGULAR FLYING REQUIREMENTS. SUPPORT OF THIS VIEW, THE COMMITTEE ACTION REFERS TO AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HOLDING THAT AN ACCIDENT INCURRED DURING PARA-SAIL TRAINING IS NOT AN "AVIATION ACCIDENT" SUCH AS TO AUTHORIZE CONTINUANCE OF FLYING PAY FOR 3 MONTHS AFTER THE DATE OF A RESULTING INCAPACITY. SEE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE DATED OCTOBER 5, 1966 (DKT 3746 (91) ( IN THE CASE OF LIEUTENANT COLONEL CHARLES N. WAHL, FR 35852.

AS INDICATED ABOVE, PARA-SAIL ACTIVITIES ARE NOT ONE OF THE TYPES OF HAZARDOUS DUTIES FOR WHICH INCENTIVE PAY IS AUTHORIZED IN 37 U.S.C. 301 (A). THE PERSONS COVERED BY SECTION 110 OF THE EXECUTIVE ORDER WHO ARE DEEMED TO HAVE FULFILLED THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY WHILE INJURED OR OTHERWISE INCAPACITATED ARE DESCRIBED AS MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO ARE INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF "SUCH HAZARDOUS DUTY," BY "AVIATION ACCIDENT" OR "OTHERWISE.' AS WE UNDERSTAND QUESTION 1 OF COMMITTEE ACTION NO. 397, THE OFFICER'S INJURY DID NOT RESULT FROM THE PERFORMANCE OF HIS FLYING DUTY ASSIGNMENT, BUT RESULTED FROM PARTICIPATING IN PARA-SAIL ACTIVITIES. COMPARE 32 COMP. GEN. 530.

WHILE PARA-SAIL ACTIVITIES MAY INDIRECTLY RELATE TO THE FLIGHT PROFICIENCY OF A MEMBER UNDER ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS, IT IS OUR VIEW THAT AN INJURY INCURRED DURING PARA-SAIL ACTIVITIES IS NOT AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS DEFINED IN PARAGRAPH 101 (B) OF THE EXECUTIVE ORDER.

IN A CASE INVOLVING AN OFFICER WHOSE INJURY DID NOT RESULT FROM THE PERFORMANCE OF HIS FLYING DUTY ASSIGNMENT, BUT RESULTED FROM PARTICIPATING IN LOW-PRESSURE CHAMBER EXERCISES, WE SAID IN DECISION OF OCTOBER 21, 1957, 37 COMP. GEN. 265, IN CONSTRUING THE LAW AND THE EXECUTIVE ORDER IN EFFECT AT THAT TIME THAT (QUOTING THE SYLLABUS):

AN OFFICER WHO IS INCAPACITATED FOR FLYING DUTY AS A RESULT OF A DECOMPRESSION INJURY RECEIVED WHILE PARTICIPATING IN A LOW-PRESSURE CHAMBER TRAINING PERIOD MAY NOT BE CONSIDERED AS HAVING RECEIVED HIS INJURY AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1 (C) OF EXECUTIVE ORDER NO. 10618, TO BE ENTITLED TO FLYING PAY DURING THE PERIOD OF INCAPACITY; NOR MAY HIS ASSIGNMENT AS A PARTICIPANT IN A LOW-PRESSURE CHAMBER BE CONSIDERED AS AN ASSIGNMENT AS INSTRUCTOR-OBSERVER AS USED IN SECTION 9 (E) OF THE ORDER, TO BE ENTITLED TO INCENTIVE PAY FOR LOW-PRESSURE CHAMBER DUTY FOR A THREE-MONTH PERIOD FOLLOWING THE INJURY. COMPARE, ALSO, 39 COMP. GEN. 601. SINCE PARA-SAIL ACTIVITIES ARE NOT ONE OF THE TYPES OF HAZARDOUS DUTIES MENTIONED IN THE LAW AND THE EXECUTIVE ORDER, ANY RELATION SUCH ACTIVITIES MAY HAVE TO THE TYPES OF HAZARDOUS DUTY MENTIONED AFFORDS NO BASIS FOR CONCLUDING THAT THE INJURY RESULTED FROM THE PERFORMANCE OF HAZARDOUS DUTY WITHIN THE PURVIEW OF SECTION 110 OF THE EXECUTIVE ORDER.

OVER THE YEARS, FOLLOWING THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 37 U.S.C. 231 NOTE (1958 ED.), CONGRESS HAS ON OCCASION AUTHORIZED INCENTIVE PAY TO MEMBERS OF THE UNIFORMED SERVICES IN RECOGNITION OF THE HAZARD INVOLVED IN PARTICULAR TYPES OF DUTY NOT THERETOFORE COVERED BY LAW. SEE, FOR EXAMPLE, SECTION 2 (4) (D) OF THE ACT OF MARCH 31, 1955, CH. 20, 69 STAT. 18; SECTION 7 OF THE ACT OF OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 216; AND THE ACT OF AUGUST 28, 1965, PUBLIC LAW 89-149, 79 STAT. 585. HOWEVER, NO STATUTORY AUTHORITY DESIGNATING PARA-SAIL ACTIVITIES AS A TYPE OF HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS AUTHORIZED HAS BEEN ENACTED AND HENCE ANY INJURY RESULTING FROM THE PERFORMANCE OF THAT TYPE OF DUTY MAY NOT BE CONSIDERED AS COMING WITHIN THE SCOPE OF THE LAW AND THE EXECUTIVE ORDER. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE AND FOR THAT REASON NO ANSWER IS REQUIRED TO QUESTION 2.