B-168467, DEC. 23, 1969

B-168467: Dec 23, 1969

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1968 IS AGAIN DENIED. 1964 MAY NOT BE GIVEN RETROACTIVE EFFECT UNLESS CONFORMING VERBAL ORDER AND SINCE RETROACTIVE ORDERS ARE INVALID FOR PAY PURPOSES THEY FURNISH NO BASIS FOR PAYMENT OF CLAIM. BECAUSE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO EVALUATE DIFFERENT MEDICAL DETERMINATIONS MADE IN CASE. DISALLOWANCE OF CLAIM IS SUSTAINED. USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 31. YOUR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 22. MAY NOT BE GIVEN EFFECT PRIOR TO THE DATE SUCH ORDERS WERE EFFECTIVE. YOU STATE THAT YOU WERE IMPROPERLY REMOVED FROM A FLYING STATUS IN 1963 DUE TO "NON EXISTANT" MEDICAL CAUSES. YOU CONTEND THAT SINCE YOUR PHYSICAL CONDITION NEVER CHANGED FROM 1963 TO THE PRESENT TIME AND YOU ARE NOW IN A FLYING STATUS BY REASON OF THE ORDERS OF MAY 27.

B-168467, DEC. 23, 1969

PAY--AVIATION DUTY--SUSPENSION FROM FLYING DUTY--PHYSICAL INCAPACITY AIR FORCE OFFICER'S CLAIM FOR FLIGHT PAY FOR PERIOD OCT. 1, 1963 THROUGH JUNE 10, 1968 IS AGAIN DENIED, AS ORDERS OF JAN. 9, 1964 REMOVING OFFICER FROM FLYING STATUS FOR MEDICAL REASONS WHERE AUTHORIZED BY AIR FORCE SURGEON GENERAL, AND NEW ORDERS EITHER RESCINDING OR REVOKING THOSE ORDERS HAD TO BE ISSUED BEFORE FLYING STATUS COULD BE RESUMED. ORDERS ISSUED MAY 27, 1968 REVOKING ORDERS OF JAN. 9, 1964 MAY NOT BE GIVEN RETROACTIVE EFFECT UNLESS CONFORMING VERBAL ORDER AND SINCE RETROACTIVE ORDERS ARE INVALID FOR PAY PURPOSES THEY FURNISH NO BASIS FOR PAYMENT OF CLAIM. BECAUSE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO EVALUATE DIFFERENT MEDICAL DETERMINATIONS MADE IN CASE, DISALLOWANCE OF CLAIM IS SUSTAINED.

TO LIEUTENANT COLONEL ROBERT L. JOHNSON, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 31, 1969, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM FOR FLIGHT PAY FOR THE PERIOD OCTOBER 1, 1963, THROUGH JUNE 10, 1968, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE.

YOUR CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 22, 1969, FOR THE REASON THAT AERONAUTICAL ORDERS NO. 54, MAY 27, 1968, ISSUED BY ORDER OF THE SECRETARY OF THE AIR FORCE, WHICH REVOKED PRIOR ORDERS SUSPENDING YOU FROM A FLYING STATUS FOR MEDICAL REASONS, MAY NOT BE GIVEN EFFECT PRIOR TO THE DATE SUCH ORDERS WERE EFFECTIVE.

YOU STATE THAT YOU WERE IMPROPERLY REMOVED FROM A FLYING STATUS IN 1963 DUE TO "NON EXISTANT" MEDICAL CAUSES. YOU CONTEND THAT SINCE YOUR PHYSICAL CONDITION NEVER CHANGED FROM 1963 TO THE PRESENT TIME AND YOU ARE NOW IN A FLYING STATUS BY REASON OF THE ORDERS OF MAY 27, 1968, THE EARLIER DETERMINATION THAT YOU WERE PHYSICALLY DISQUALIFIED TO FLY WAS IN ERROR AND THAT SUCH ERROR WAS ADMITTED WHEN YOU WERE RETURNED TO A FLYING STATUS IN JUNE 1968.

SECTION 301 OF TITLE 37, U.S. CODE, 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 PARTICIPATION IN AERIAL FLIGHTS. BY EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, 29 F.R. 7973, THE PRESIDENT PRESCRIBED SUCH GENERAL REGULATIONS, SECTION 113 OF WHICH AUTHORIZED THE SECRETARIES OF THE DEPARTMENTS CONCERNED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS DEEMED NECESSARY OR DESIRABLE FOR CARRYING OUT THE PRESIDENTIAL REGULATIONS. IN THIS CONNECTION, THE SECRETARY OF THE AIR FORCE HAS ISSUED DETAILED REGULATIONS GOVERNING PAYMENT OF INCENTIVE PAY FOR FLYING DUTY IN VARIOUS SITUATIONS PUBLISHED IN AIR FORCE MANUAL 35-13. SECTION E, OF CHAPTER 2, OF THESE REGULATIONS DEALS WITH THE SUSPENSION OF A MEMBER FROM A FLYING STATUS DUE TO PHYSICAL INCAPACITY AND THE REVOCATION OF THAT SUSPENSION. YOUR RIGHTS ARE GOVERNED BY THOSE REGULATIONS.

THE RECORD SHOWS THAT YOU WERE GROUNDED ON SEPTEMBER 10, 1963, AND THAT YOU WERE REMOVED FROM A FLYING STATUS EFFECTIVE JANUARY 1, 1964, BY ORDERS DATED JANUARY 9, 1964. YOUR REMOVAL FROM A FLYING STATUS WAS AUTHORIZED BY THE SURGEON GENERAL, USAF, WITH THE DIAGNOSIS OF YOUR THEN CONDITION AS "PSYCHOMOTOR SEIZURE, PROBABLE.' ORDERS TO THAT EFFECT HAVING BEEN ISSUED, NEW ORDERS EITHER RESCINDING OR REVOKING THOSE ORDERS HAD TO BE ISSUED BEFORE YOU COULD RESUME A FLYING STATUS. SUCH ORDERS WERE ISSUED ON MAY 27, 1968. HOWEVER, BY VIRTUE OF SECTION 2-10A, AFM 35-13, THOSE ORDERS MAY NOT BE GIVEN RETROACTIVE EFFECT SINCE IT IS THERE PROVIDED THAT "UNLESS CONFIRMING A VERBAL ORDER, RETROACTIVE ORDERS ARE INVALID FOR PAY PURPOSES.' SINCE THE ORDERS DATED MAY 27, 1968, REVOKING THE ORDERS OF JANUARY 9, 1964, DID NOT BECOME EFFECTIVE UNTIL JUNE 10, 1968, THEY FURNISH NO BASIS FOR THE PAYMENT OF YOUR CLAIM. WE ARE WITHOUT AUTHORITY TO EVALUATE THE DIFFERENT MEDICAL DETERMINATIONS MADE IN YOUR CASE.

ACCORDINGLY, THE ACTION HERETOFORE TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.