B-161367, JUL. 5, 1967

B-161367, JUL. 5, 1967

ARMED SERVICES - PAY - FLIGHT PAY - SUSPENSION PERIODS DECISION TO RETIRED AIR FORCE OFFICER DENYING CLAIM FOR FLIGHT PAY FOR PERIOD OF SUSPENSION FROM FLYING STATUS.

TO LIEUTENANT COLONEL JOSEPH M. KOTLEWSKI, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1967, REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 21, 1966, WHICH DISALLOWED YOUR CLAIM FOR FLIGHT PAY FOR THE PERIOD SEPTEMBER 25, 1964, THROUGH MAY 2, 1965.

BY SPECIAL ORDER M-127, DATED SEPTEMBER 17, 1964, ISSUED BY HEADQUARTERS 1501ST AIR BASE GROUP (MATS), UNITED STATES AIR FORCE, TRAVIS AIR FORCE BASE, CALIFORNIA, UNDER THE PROVISIONS OF AIR FORCE MANUAL 35-13, CERTAIN OFFICERS AT THAT BASE WERE APPOINTED MEMBERS OF THE 1501ST AIR BASE GROUP FLYING EVALUATION BOARD TO CONSIDER YOUR FLYING STATUS. THE ORDER WAS SIGNED BY COLONEL LEASER, USAF,COMMANDER. PENDING THE ACTION OF THAT BOARD, ON SEPTEMBER 18, 1964, HEADQUARTERS 1501ST AIR TRANSPORT WING (H) (MATS) UNITED STATES AIR FORCE, TRAVIS AIR FORCE BASE, CALIFORNIA, ISSUED AERONAUTICAL ORDER 109, PARAGRAPH 6 OF WHICH SUSPENDED YOU FROM FLYING STATUS EFFECTIVE SEPTEMBER 25, 1964, FOR THE REASON THAT YOU HAD BEEN CITED TO APPEAR BEFORE A FLYING EVALUATION BOARD BECAUSE, FOR REASONS WITHIN YOUR CONTROL, YOU FAILED TO MEET MINIMUM PROFICIENCY REQUIREMENTS AS PRESCRIBED IN AIR FORCE MANUAL 60-1. THE AUTHORITY CITED WAS PARAGRAPH 2-29A, AIR FORCE MANUAL 35-13. THAT ORDER WAS SIGNED BY BRIGADIER GENERAL JAMES W. CHAPMAN, JR; COMMANDER. YOUR FLIGHT PAY WAS STOPPED EFFECTIVE SEPTEMBER 25, 1964. ON NOVEMBER 18, 1964, THE EVALUATION BOARD APPOINTED IN YOUR CASE DETERMINED THAT YOU HAD FAILED TO MAINTAIN A SATISFACTORY LEVEL OF PROFICIENCY AND RECOMMENDED THAT YOU BE SUSPENDED FROM FLYING STATUS.

BY PARAGRAPH 2, AERONAUTICAL ORDER 54, DATED MAY 3, 1965, THE CHIEF OF STAFF, DEPARTMENT OF THE AIR FORCE, REVOKED THE SUSPENSION FROM FLYING STATUS IMPOSED BY THE ORDER OF SEPTEMBER 18, 1964, CITING PARAGRAPH 2-34D, AIR FORCE MANUAL 35-13 AS AMENDED. BY PARAGRAPH 3 OF THE SAME ORDER YOU WERE SUSPENDED FROM FLYING STATUS UNDER PARAGRAPH 2 29I, AIR FORCE MANUAL 35-13, AS AMENDED.

IN PRESENTING YOUR CLAIM YOU QUESTIONED THE VALIDITY OF THE ORDER OF SEPTEMBER 18, 1964, SUSPENDING YOU FROM FLYING STATUS EFFECTIVE SEPTEMBER 25, 1964, FOR THE REASON THAT THE OFFICER WHO ISSUED THE SUSPENSION ORDER WAS NOT THE OFFICER WHO ORDERED YOU TO APPEAR BEFORE THE BOARD. YOU SAID THAT THE BOARD'S RECOMMENDATION THAT YOU BE SUSPENDED INDICATES THE BOARD DID NOT CONSIDER THAT YOU WERE SUSPENDED AT THE TIME IT CONVENED. YOU CONTENDED THAT SINCE THE ORDER OF MAY 3, 1965, REVOKED THE ORDER OF SEPTEMBER 18, 1964, AND SINCE SPECIAL ORDER P-791 DATED NOVEMBER 7, 1961, INDICATED YOU WERE ENTITLED TO FLIGHT PAY WITHOUT REGARD TO PERFORMANCE OF MINIMUM FLIGHT REQUIREMENTS, YOU ARE ENTITLED TO FLIGHT PAY UNTIL THE ORDER OF MAY 3, 1965, WAS ISSUED. YOU FURTHER CONTENDED THAT THE FLYING EVALUATION BOARD WAS IMPROPERLY CONVENED AT TRAVIS AIR FORCE BASE AND THAT SINCE YOU WERE WITH A MATS UNIT AT HILL AIR FORCE BASE YOU SHOULD HAVE BEEN EXAMINED BY A FLYING EVALUATION BOARD ASSIGNED FROM PERSONNEL AT THAT BASE, CITING PARAGRAPH 2-16, MATS SUPPLEMENT 1 TO AIR FORCE MANUAL 35- 13E.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 21, 1966, FOR THE REASON THAT YOU HAD BEEN SUSPENDED FROM FLYING STATUS EFFECTIVE SEPTEMBER 25, 1964, DUE TO FAILURE TO MEET THE MINIMUM PROFICIENCY REQUIREMENTS, AND THAT PARAGRAPH 10520, AIR FORCE MANUAL 177-105, EFFECTIVE JULY 1, 1964, PROVIDES THAT A MEMBER IS NOT ENTITLED TO FLIGHT PAY FOR A PERIOD WHEN HE IS SUSPENDED FROM FLYING STATUS. IN YOUR PRESENT LETTER YOU POINT OUT THAT THE ORDERS OF SEPTEMBER 18, 1964, WERE REVOKED BY THE ORDERS OF MAY 3, 1965. YOU CONTEND THAT THIS NULLIFIED THE FIRST ORDERS AND THEY WERE OF NO EFFECT FOR THE PERIOD SEPTEMBER 25, 1964, TO MAY 3, 1965.

SECTION 301 OF TITLE 37, U.S.C. PROVIDES THAT SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS, INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT, NOT AS A CREW MEMBER. SECTION 104 OF EXECUTIVE ORDER 11157 OF JUNE 22, 1964, PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, MEMBERS SHALL BE REQUIRED TO MEET MINIMUM FLIGHT REQUIREMENTS TO RECEIVE INCENTIVE PAY. SUCH REQUIREMENTS FOR THE AIR FORCE ARE PRESCRIBED IN AIR FORCE MANUAL 60-1.

THE ORDER OF NOVEMBER 7, 1961, ISSUED AT TRAVIS AIR FORCE BASE STATED THAT YOU AND CERTAIN OTHER OFFICERS AT THAT BASE SHOWN IN THE ORDER AS HAVING HELD AN AERONAUTICAL RATING OR DESIGNATION FOR NOT LESS THAN 15 YEARS WERE ELIGIBLE TO RECEIVE FLIGHT PAY WITHOUT REGARD TO PERFORMANCE OF MINIMUM FLIGHT REQUIREMENTS, EFFECTIVE OCTOBER 1, 1961. THAT ORDER WAS ISSUED PURSUANT TO SECTION 614 OF DEPARTMENT OF DEFENSE APPROPRIATION ACT 1962, 75 STAT. 378. SIMILAR AUTHORITY TO MAKE SUCH A DETERMINATION FOR THE FISCAL YEAR 1965 WAS CONTAINED IN SECTION 514 OF DEPARTMENT OF DEFENSE APPROPRIATION ACT 1965, 78 STAT. 4779

PARAGRAPH 2-29A, AIR FORCE MANUAL 35-13E, AUGUST 1, 1964, PROVIDES THAT WHEN AN OFFICER IS CALLED BEFORE A FLYING EVALUATION BOARD THE COMMANDER OF AN AIR FORCE BASE OR TACTICAL UNIT WHO ORDERS A RATED OFFICER TO APPEAR BEFORE A FLYING EVALUATION BOARD MAY SUSPEND THE OFFICER BEFORE OR AFTER THE BOARD CONVENES AND THAT THE ORDERS WILL CITE THAT PARAGRAPH AND SPECIFICALLY STATE AS THE REASON FOR THE SUSPENSION THE CONDITIONS FOR WHICH THE BOARD WAS CONVENED. PURSUANT TO THAT AUTHORITY A BOARD WAS CONVENED IN YOUR CASE AND FOUND THAT YOU HAD FAILED TO MEET MINIMUM PROFICIENCY REQUIREMENTS. THE FACT THAT A COLONEL, THE COMMANDER OF AN AIR GROUP ORDERED YOU TO APPEAR BEFORE THE BOARD WHEREAS A SUPERIOR OFFICER, BRIGADIER GENERAL CHAPMAN, COMMANDER OF THE AIR WING UNDER WHICH THE GROUP OPERATED, ISSUED THE SUSPENSION ORDER DOES NOT, IN OUR OPINION, INVALIDATE YOUR SUSPENSION SINCE AN OFFICER SUPERIOR IN COMMAND GENERALLY HAS AUTHORITY TO ISSUE ANY ORDERS THAT OFFICERS UNDER HIS COMMAND MIGHT ISSUE. ALSO, IT APPARENTLY WAS WITHIN THE AUTHORITY OF TRAVIS AIR FORCE BASE UNDER PARAGRAPH 2-29A, AIR FORCE MANUAL 35-13E TO CONVENE THE BOARD AT THAT BASE. THE RECOMMENDATION OF THE BOARD THAT YOU BE SUSPENDED SIMPLY PROVIDED A BASIS FOR CONTINUING THE SUSPENSION ORDERED BY THE WING COMMANDER. IT IS OUR VIEW THAT THE FINDINGS OF BOARDS CONVENED TO DETERMINE A MEMBER'S QUALIFICATIONS ON THE BASIS OF EVIDENCE PRESENTED ARE MATTERS WITHIN THE ADMINISTRATIVE FUNCTION AND DISCRETION OF THE DEPARTMENT INVOLVED.

PARAGRAPH 2-34D, AIR FORCE MANUAL 35-13E, PROVIDES THAT THE CHIEF OF STAFF, HEADQUARTERS UNITED STATES AIR FORCE, MAY REMOVE A SUSPENSION FROM FLYING STATUS, WHILE PARAGRAPH 2-29I, AIR FORCE MANUAL 35-13E PROVIDES THAT THAT OFFICER MAY SUSPEND A RATED OFFICER FROM FLYING STATUS WHEN SUCH SUSPENSION IS IN THE BEST INTEREST OF THE AIR FORCE. THE FIRST-CITED PARAGRAPH OF THE MANUAL DOES NOT PROVIDE FOR RETROACTIVE REMOVAL OF SUSPENSIONS NOR IS THERE ANYTHING IN THE ORDER OF MAY 3, 1965, TO SUGGEST THAT YOU WERE TO BE RESTORED TO A FLYING STATUS FOR THE PERIOD PRIOR TO MAY 3, 1965. INSTEAD, IT SEEMS CLEAR THAT THE PURPOSE OF THE ORDER WAS TO TERMINATE THE SUSPENSION WHICH HAD BEEN IMPOSED BECAUSE YOU HAD BEEN CITED TO APPEAR BEFORE AN EVALUATION BOARD FOR FAILURE TO MEET MINIMUM PROFICIENCY REQUIREMENTS, AND TO IMPOSE A NEW SUSPENSION IN THE BEST INTEREST OF THE AIR FORCE WHICH WOULD BE OF A PERMANENT NATURE.

PARAGRAPH 10520 OF AIR FORCE MANUAL 177-105 PROVIDES THAT A MEMBER IS NOT ENTITLED TO FLIGHT PAY FOR A PERIOD WHEN HE IS SUSPENDED FROM FLYING STATUS, BUT IN THE CASE OF A MEMBER NOT REQURED TO PERFORM MINIMUM FLIGHT REQUIREMENTS, IF THE SUSPENSION IS REMOVED WITHIN THREE MONTHS HE IS ENTITLED TO FLIGHT PAY FROM THE DATE THE SUSPENSION BEGAN.

SINCE IT APPEARS THAT YOU WERE PROPERLY SUSPENDED FROM FLIGHT STATUS AND THE SUSPENSION WAS NOT REMOVED, THERE IS NO BASIS ON WHICH YOU COULD BE CONSIDERED ELIGIBLE FOR FLIGHT PAY FOR THE PERIOD CLAIMED, AND THE SETTLEMENT OF FEBRUARY 21, 1966, IS SUSTAINED.