B-173497, OCT 27, 1971

B-173497: Oct 27, 1971

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CLAIMANT'S ENTITLEMENT TO FLIGHT PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS AS WELL AS EVIDENCE ESTABLISHING THAT HE MET THE MINIMUM FLIGHT REQUIREMENTS DURING THE PERIODS OF THE CLAIMS. WHILE IT IS QUESTIONABLE AS TO WHETHER CLAIMANT HAD PASSED A VALID FLIGHT PHYSICAL EXAM. WERE NOT CONFIRMED IN WRITING WITHIN A REASONABLE TIME (21 MONTHS TO 2 YEARS BEING UNREASONABLE). HANNON: FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 5. DURING WHICH YOU WERE SERVING AS A MEMBER OF THE 155TH AVIATION COMPANY. THAT A REQUEST FOR FLIGHT STATUS ORDERS WAS SUBMITTED FOR YOU ON APRIL 9. THE REASON GIVEN FOR THE DELAY IN SUBMITTING THE REQUEST WAS THAT THE RECORD OF YOUR FLIGHT PHYSICAL EXAMINATION HAD BEEN LOST.

B-173497, OCT 27, 1971

MILITARY PERSONNEL - HAZARDOUS DUTY - CONFIRMATION OF VERBAL ORDERS SUSTAINING CLAIMS DIVISION SETTLEMENT WHICH DISALLOWED CLAIM FOR FLIGHT PAY FOR THE PERIODS MAY 8 THROUGH NOVEMBER 10, 1967, AND FEBRUARY 12 THROUGH MAY 2, 1968 INCIDENT TO SERVICE WITH THE 155TH AVIATION COMPANY, U.S.A., VIETNAM. CLAIMANT'S ENTITLEMENT TO FLIGHT PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS AS WELL AS EVIDENCE ESTABLISHING THAT HE MET THE MINIMUM FLIGHT REQUIREMENTS DURING THE PERIODS OF THE CLAIMS. WHILE IT IS QUESTIONABLE AS TO WHETHER CLAIMANT HAD PASSED A VALID FLIGHT PHYSICAL EXAM, BECAUSE THE VERBAL ORDERS, IF ISSUED, WERE NOT CONFIRMED IN WRITING WITHIN A REASONABLE TIME (21 MONTHS TO 2 YEARS BEING UNREASONABLE), THEY MAY NOT BE RECOGNIZED AS COMPETENT ORDERS AND THE CLAIM MUST, THEREFORE, BE DENIED.

TO MR. MICHAEL F. HANNON:

FURTHER REFERENCE IS MADE TO YOUR UNDATED LETTER REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 5, 1971, WHICH DISALLOWED YOUR CLAIM FOR FLIGHT PAY FOR THE PERIODS MAY 8 THROUGH NOVEMBER 10, 1967, AND FEBRUARY 12 THROUGH MAY 2, 1968, DURING WHICH YOU WERE SERVING AS A MEMBER OF THE 155TH AVIATION COMPANY, UNITED STATES ARMY, IN VIETNAM.

IT APPEARS THAT DURING THE PERIOD MAY 8 THROUGH NOVEMBER 10, 1967, YOU SERVED AS A CREW CHIEF WITH THE 155TH AVIATION COMPANY. DURING THE PERIOD FEBRUARY 12 THROUGH MAY 2, 1968, YOU SERVED AS A SENIOR HELICOPTER MECHANIC ALSO WITH THAT UNIT. IT ALSO APPEARS THAT DURING THESE PERIODS YOU PARTICIPATED IN AERIAL FLIGHTS WITH YOUR UNIT ALTHOUGH NO VALID WRITTEN ORDERS HAD BEEN ISSUED PLACING YOU IN A FLIGHT STATUS.

IT FURTHER APPEARS FROM A LETTER DATED OCTOBER 14, 1969, OF THE OPERATIONS OFFICER, 155TH AVIATION COMPANY (ASLT HEL), THAT A REQUEST FOR FLIGHT STATUS ORDERS WAS SUBMITTED FOR YOU ON APRIL 9, 1968, BACK DATED 11 MONTHS TO MAY 8, 1967. THE REASON GIVEN FOR THE DELAY IN SUBMITTING THE REQUEST WAS THAT THE RECORD OF YOUR FLIGHT PHYSICAL EXAMINATION HAD BEEN LOST. THERE ALSO SEEMS TO HAVE BEEN SOME QUESTION AS TO WHETHER YOU HAD PASSED A VALID FLIGHT PHYSICAL EXAMINATION.

ON THE SAME DATE, APPARENTLY A REQUEST FOR DELETION FROM THAT FLIGHT STATUS EFFECTIVE NOVEMBER 10, 1967, WAS ALSO SUBMITTED BECAUSE OF A CHANGE IN YOUR FLIGHT STATUS POSITION. ALSO ON APRIL 9, 1968, IT APPEARS THAT A REQUEST FOR FLIGHT STATUS ORDERS FOR YOU AS A SENIOR HELICOPTER MECHANIC WAS SUBMITTED WITH AN EFFECTIVE DATE OF FEBRUARY 12, 1968. SUBMITTED WITH THESE REQUESTS WAS A CLASS III FLIGHT PHYSICAL FOR YOU DATED APRIL 1, 1968.

IT IS REPORTED THAT APPARENTLY THESE REQUESTS WERE LOST AND NO SUBSEQUENT ACTION WAS TAKEN TO CONFIRM YOUR FLIGHT STATUS UNTIL AFTER YOU WERE RETURNED TO THE UNITED STATES, WHEN SPECIAL ORDERS NO. 298, DATED OCTOBER 28, 1969, WERE ISSUED WHICH INCLUDED CONFIRMATION OF PURPORTED VERBAL ORDERS OF THE COMMANDING GENERAL OF THE 1ST AVIATION BRIGADE DATED MAY 8, 1967, AND FEBRUARY 12, 1968, AUTHORIZING YOUR FLIGHT STATUS. YOU WERE DISCHARGED FROM ACTIVE DUTY ON OCTOBER 29, 1969.

YOUR CLAIM WAS DISALLOWED BECAUSE THE CONFIRMATION OF VERBAL ORDERS WAS ISSUED OVER 2 YEARS AFTER THE FIRST PURPORTED VERBAL ORDER WAS ISSUED AND ALMOST 21 MONTHS AFTER THE SECOND PURPORTED VERBAL ORDER WAS ISSUED.

SECTION 301(A) 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." UNDER SUBSECTIONS 301(A)(1) AND (4) DUTY AS CREW MEMBER OR NONCREW MEMBER INVOLVING PARTICIPATION IN FREQUENT AND REGULAR AERIAL FLIGHTS IS INCLUDED WITHIN THE MEANING OF THE TERM "HAZARDOUS DUTY."

THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 301 RELATING TO INCENTIVE PAY ARE FOUND IN EXECUTIVE ORDER 11157, JUNE 22, 1964, AS AMENDED. THOSE REGULATIONS PROVIDE, AMONG OTHER THINGS, THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE ANY MEMBER OF THE UNIFORMED SERVICES MAY BE "REQUIRED BY COMPETENT ORDERS" TO PERFORM HAZARDOUS DUTY; THAT EACH MEMBER WHO IS REQUIRED BY SUCH ORDERS TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS SHALL MAKE THE FLIGHTS AS A CREW MEMBER OR AS A NONCREW MEMBER AS DIRECTED BY COMPETENT AUTHORITY; AND THAT DETERMINATIONS AS TO WHAT CONSTITUTES DUTY AS A CREW MEMBER AND DUTY AS A NONCREW MEMBER SHALL BE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. THE EXECUTIVE ORDER ALSO PROVIDES THE MINIMUM FLIGHT REQUIREMENTS WHICH MEMBERS WHO ARE "REQUIRED BY COMPETENT ORDERS" TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS MUST MEET TO BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY.

THE GOVERNING REGULATIONS IN EFFECT ON MAY 8, 1967, WHEN YOU BEGAN SERVICE AS A CREW CHIEF, ARE FOUND IN ARMY REGULATIONS 37-104. PARAGRAPHS 10502A AND B, AND 10511B OF THOSE REGULATIONS PROVIDE IN EFFECT THAT A MEMBER IS NOT ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS UNLESS HE HAS BEEN PLACED IN A "FLYING STATUS," WHICH IS THE STATUS OF A MEMBER WHO IS REQUIRED BY ORDERS TO PARTICIPATE IN FREQUENT AND REGULAR AERIAL FLIGHTS AS A CREW MEMBER OR NONCREW MEMBER.

REGULATIONS SUPERSEDING ARMY REGULATIONS 37-104 AND IN EFFECT DURING THE LATTER PART OF THE PERIOD OF DUTY YOU PERFORMED AS A CREW CHIEF AND DURING THE ENTIRE PERIOD OF DUTY YOU PERFORMED AS A SENIOR HELICOPTER MECHANIC, ARE FOUND IN ARMY REGULATIONS 37-125, CHAPTER 2, SECTION II, AND DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PART TWO, CHAPTER 1. INSOFAR AS YOUR ENTITLEMENT TO FLYING PAY IS CONCERNED THE PROVISIONS OF THOSE REGULATIONS ARE SIMILAR TO THE PROVISIONS OF ARMY REGULATIONS 37-104 OUTLINED ABOVE.

YOUR ENTITLEMENT TO FLIGHT PAY IS DEPENDENT UPON THE EXISTENCE OF COMPETENT ORDERS PLACING YOU IN A FLIGHT STATUS DURING THOSE PERIODS AS WELL AS EVIDENCE ESTABLISHING THAT YOU MET THE MINIMUM FLIGHT REQUIREMENTS DURING THE PERIODS OF YOUR CLAIMS.

AUTHORITY TO ISSUE "COMPETENT ORDERS" REQUIRING NONAVIATOR PERSONNEL (SUCH AS CREW CHIEFS AND AIRCRAFT MECHANICS) TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS WAS DELEGATED BY THE SECRETARY OF THE ARMY TO CERTAIN OFFICERS, INCLUDING THE COMMANDING GENERAL, U.S. ARMY, VIETNAM; DIVISION COMMANDERS; AND THE COMMANDERS OF INSTALLATIONS OR COMMANDS WHICH ARE AUTHORIZED A COMMANDER OF GENERAL OFFICER GRADE. SEE ARMY REGULATIONS 600-106 (EFFECTIVE FEBRUARY 24, 1966, AND AUGUST 11, 1967), SECTION IV, PARAGRAPH 9. FROM THE RECORD BEFORE US IT IS UNCLEAR AS TO WHETHER ANY OF THE OFFICERS TO WHOM SUCH ORDER ISSUING AUTHORITY WAS DELEGATED EVER ACTUALLY ISSUED A VERBAL ORDER PLACING YOU IN A FLIGHT STATUS.

HOWEVER THAT MAY BE, IT IS A WELL SETTLED RULE THAT VERBAL ORDERS WILL BE RECOGNIZED AS COMPETENT ORDERS ONLY WHEN THEY ARE PROPERLY CONFIRMED IN WRITING WITHIN A REASONABLE TIME AFTER THEY WERE ISSUED. CONFIRMATORY ORDERS IN YOUR CASE ISSUED SOME 21 MONTHS TO 2 YEARS AFTER THE PURPORTED VERBAL ORDERS MAY NOT BE CONSIDERED SUFFICIENT TO MEET THE REQUIREMENTS OF THIS RULE. SEE B-171827, MAY 13, 1971, 50 COMP. GEN. ; 43 COMP. GEN. 281, 285 (1963). FURTHERMORE, WHILE COMPETENT ORDERS PLACING YOU IN A FLIGHT STATUS MAY NOT HAVE BEEN ISSUED DUE TO ADMINISTRATIVE ERROR OR OVERSIGHT, IT IS ALSO A WELL SETTLED RULE THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS, OMISSIONS OR ERRORS OF ITS OFFICERS, AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

CONSEQUENTLY, NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF MAY 5, 1971, IS SUSTAINED.

IN THIS CONNECTION, HOWEVER, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF 10 U.S.C. 1552 WHICH AUTHORIZE THE SECRETARY OF A MILITARY DEPARTMENT TO CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS SUCH ACTION NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.