B-173617, AUG 12, 1971, 51 COMP GEN 95

B-173617: Aug 12, 1971

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WHERE THE STATUTORY WAIVER IS APPLICABLE. 1971: FURTHER REFERENCE IS MADE TO LETTER DATED JULY 14. THERE WAS ENCLOSED A COPY OF COMMITTEE ACTION NO. 454 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SETTING FORTH AND DISCUSSING THE FOLLOWING QUESTION: MAY THE REGULATIONS IMPLEMENTING THE STATUTORY AUTHORITY FOR WAIVER OF MINIMUM FLIGHT REQUIREMENTS BE EXTENDED TO COVER TRAVEL. TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN FIFTEEN YEARS. OR WHO HAVE BEEN ASSIGNED TO A COURSE OF INSTRUCTION OF 90 DAYS OR MORE. A SIMILAR PROVISION IS INCLUDED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR 1972 NOW PENDING BEFORE THE CONGRESS.

B-173617, AUG 12, 1971, 51 COMP GEN 95

PAY - AVIATION DUTY - MINIMUM FLIGHT REQUIREMENTS - WAIVER THE REGULATIONS IMPLEMENTING THE STATUTORY AUTHORIZED WAIVER OF MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS OF THE UNIFORMED SERVICES WHILE ATTENDING A COURSE OF INSTRUCTION OF 90 DAYS OR MORE OR WHILE SERVING UNDER CERTAIN OVERSEAS ASSIGNMENTS MAY BE AMENDED TO INCLUDE PERIODS OF TRAVEL, LEAVE, AND TEMPORARY DUTY NOT IN EXCESS OF 90 DAYS IN CASES OF CONSECUTIVE DUTY ASSIGNMENTS BETWEEN SCHOOLS AND REMOTE PLACES, OR VICE VERSA, WHERE THE STATUTORY WAIVER IS APPLICABLE, AND THE EXTENSION OF THE WAIVER OF FLIGHT PERFORMANCE REQUIREMENTS WOULD BE IN ACCORD WITH THE CONGRESSIONAL INTENT EXPRESSED IN THE LEGISLATIVE HISTORY OF THE DEFENSE DEPARTMENT APPROPRIATION ACT OF 1971 TO AVOID THE HIGH COST OF PROVIDING AIRCRAFT THAT OTHERWISE WOULD BE INCURRED. HOWEVER, THE RULE OF 34 COMP. GEN. 243 SHOULD CONTINUE TO BE APPLIED TO TRAVEL TO THE FIRST OF SUCH ASSIGNMENTS AND FROM THE LAST OF SUCH ASSIGNMENTS.

TO THE SECRETARY OF DEFENSE, AUGUST 12, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 14, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER APPROPRIATE REGULATIONS RELATING TO THE WAIVER OF FLIGHT REQUIREMENTS FOR MEMBERS OF THE UNIFORMED SERVICES WHILE ATTENDING A COURSE OF INSTRUCTION OF 90 DAYS OR MORE OR WHILE SERVING UNDER CERTAIN OVERSEAS ASSIGNMENTS MAY BE AMENDED TO INCLUDE PERIODS OF TRAVEL, LEAVE AND TEMPORARY DUTY NOT IN EXCESS OF 90 DAYS IN CASES OF CONSECUTIVE DUTY ASSIGNMENTS BETWEEN SCHOOLS AND REMOTE PLACES, OR VICE VERSA. THERE WAS ENCLOSED A COPY OF COMMITTEE ACTION NO. 454 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SETTING FORTH AND DISCUSSING THE FOLLOWING QUESTION:

MAY THE REGULATIONS IMPLEMENTING THE STATUTORY AUTHORITY FOR WAIVER OF MINIMUM FLIGHT REQUIREMENTS BE EXTENDED TO COVER TRAVEL, LEAVE, AND TDY NOT IN EXCESS OF NINETY DAYS BETWEEN CONSECUTIVE ASSIGNMENTS?

SECTION 815 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1971, APPROVED JANUARY 11, 1971, PUBLIC LAW 91-668, 84 STAT. 2033, PROVIDES AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXECUTIVE ORDER, OR REGULATION, NO PART OF THE APPROPRIATIONS IN THIS ACT SHALL BE AVAILABLE FOR ANY EXPENSES OF OPERATING AIRCRAFT UNDER THE JURISDICTION OF THE ARMED FORCES FOR THE PURPOSE OF PROFICIENCY FLYING EXCEPT IN ACCORDANCE WITH THE REGULATIONS ISSUED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED AND APPROVED BY THE SECRETARY OF DEFENSE WHICH SHALL ESTABLISH PROFICIENCY STANDARDS AND MAXIMUM AND MINIMUM FLYING HOURS FOR THIS PURPOSE: PROVIDED, THAT WITHOUT REGARD TO ANY PROVISION OF LAW OR EXECUTIVE ORDER PRESCRIBING MINIMUM FLIGHT REQUIREMENTS, SUCH REGULATIONS MAY PROVIDE FOR THE PAYMENT OF FLIGHT PAY AT THE RATES PRESCRIBED IN SECTION 301 OF TITLE 37, U.S.C. TO CERTAIN MEMBERS OF THE ARMED FORCES OTHERWISE ENTITLED TO RECEIVE FLIGHT PAY DURING THE CURRENT FISCAL YEAR (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN FIFTEEN YEARS, OR (2) WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS, OR WHO HAVE BEEN ASSIGNED TO A COURSE OF INSTRUCTION OF 90 DAYS OR MORE.

A SIMILAR PROVISION IS INCLUDED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR 1972 NOW PENDING BEFORE THE CONGRESS.

PRIOR TO THE 1971 ACT, DEPARTMENT OF DEFENSE APPROPRIATION ACTS PROVIDED A STATUTORY WAIVER OF FLIGHT REQUIREMENTS TO MEMBERS OF THE ARMED FORCES WHO HAD HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR LESS THAN THE YEARS STATED IN THE STATUTES ONLY IN THOSE CASES WHERE THE MEMBER'S PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MADE IT IMPRACTICABLE TO PARTICIPATE IN REGULAR AERIAL FLIGHTS. IN OUR DECISION 34 COMP. GEN. 243 (1954), INVOLVING THE STATUTORY WAIVER OF FLIGHT REQUIREMENTS IN REMOTE PLACES CONTAINED IN SECTION 628 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, APPROVED AUGUST 1, 1953, PUBLIC LAW 179, 67 STAT. 354, WE HELD THAT A MEMBER WOULD BE ENTITLED TO FLIGHT PAY FOR A PERIOD OF TRAVEL TO AND FROM THE PARTICULAR STATION WHERE FLIGHT REQUIREMENTS WERE EXCUSED ONLY IF HE WERE OTHERWISE QUALIFIED TO RECEIVE SUCH PAY.

THE COMMITTEE ACTION STATES THAT, SINCE IT WAS ONLY IN EXCEPTIONALLY RARE CASES THAT A MEMBER WAS REASSIGNED FROM ONE REMOTE AREA TO ANOTHER, IT WAS NOT BELIEVED NECESSARY TO AMEND THE REGULATIONS AFTER OUR DECISION WAS RENDERED. HOWEVER, WITH THE INCLUSION OF THE LONG TERM SCHOOL WAIVER PROVISION, THE PROBLEM OF THE WAIVER OF FLIGHT REQUIREMENTS FOR TRAVEL BETWEEN CONSECUTIVE ASSIGNMENTS BETWEEN SCHOOLS AND REMOTE PLACES, AND VICE VERSA, ASSUMES GREATER IMPORTANCE.

AS POINTED OUT IN THE COMMITTEE ACTION DISCUSSION, THE INTENT OF THE CONGRESS IN EXTENDING THE STATUTORY WAIVER PROVISION TO INCLUDE SCHOOL ASSIGNMENTS IS SET FORTH ON PAGE 102 OF HOUSE REPORT NO. 91-1570, 91ST CONGRESS, 2D SESSION, TO ACCOMPANY H.R. 19590 WHICH BECAME THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1971, AS FOLLOWS:

THE COMMITTEE RECOMMENDS THAT SECTION 815 BE BROADENED TO PERMIT THE PAYMENT OF FLIGHT PAY TO PERSONNEL ASSIGNED TO LONG TERM COURSES OF INSTRUCTION OF 90 DAYS OR MORE, IN LIEU OF PAY FOR ACTUAL FLYING. THE COMMITTEE IS CONCERNED OVER THE HIGH COST OF PROVIDING AIRCRAFT FOR SUCH FLYING AND FEELS THAT THE PROVISION WILL PERMIT THE DEPARTMENT TO ACHIEVE MONETARY SAVINGS WITHOUT ADVERSE EFFECT.

THE COMMITTEE ACTION STATES THAT WITHOUT A WAIVER OF FLIGHT PERFORMANCE REQUIREMENTS BETWEEN SUCH CONSECUTIVE ASSIGNMENTS THE MILITARY DEPARTMENTS FEEL REQUIRED TO MAKE AIRCRAFT AVAILABLE SO AS TO PRECLUDE DISCONTINUANCE OF FLIGHT PAY, AND SUGGESTS THAT A CHANGE IN THE REGULATIONS IS NECESSARY IN ORDER TO COMPLY WITH THE STATED INTENT OF CONGRESS TO AVOID THE HIGH COSTS OF PROVIDING AIRCRAFT THAT OTHERWISE WOULD BE INCURRED.

CONSIDERING THE PURPOSE OF THE STATUTORY PROVISION INVOLVED, WE FIND NO OBJECTION TO EXTENDING THE WAIVER OF MINIMUM FLIGHT REQUIREMENTS TO COVER TRAVEL, LEAVE AND TEMPORARY DUTY NOT IN EXCESS OF 90 DAYS BETWEEN CONSECUTIVE DUTY ASSIGNMENTS WHERE THE STATUTORY WAIVER OF FLIGHT REQUIREMENTS IS APPLICABLE. HOWEVER, THE RULE OF 34 COMP. GEN. 243 (1954), SHOULD CONTINUE TO BE APPLIED TO TRAVEL TO THE FIRST OF SUCH ASSIGNMENTS AND THE RETURN FROM THE LAST OF SUCH ASSIGNMENTS.