B-21633, DECEMBER 16, 1941, 21 COMP. GEN. 578

B-21633: Dec 16, 1941

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WHEN BY COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS * * * SHALL RECEIVE THE SAME INCREASE OF THEIR PAY * * * AS ARE AUTHORIZED FOR THE PERFORMANCE OF LIKE DUTIES IN THE ARMY.' ( ITALICS SUPPLIED.) 2. IS AS FOLLOWS. "* * * A FLYING OFFICER IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER OR AS ANY OTHER MEMBER OF COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.' ( SECRETARY OF THE NAVY FOR THE NAVY. REFERENCE (D) AND IS AS FOLLOWS: "A FLYING OFFICER. MAY BE DEFINED AS AN OFFICER WHO IS QUALIFIED AS A NAVAL AVIATOR AND HAS BEEN OFFICIALLY DESIGNATED AS SUCH.

B-21633, DECEMBER 16, 1941, 21 COMP. GEN. 578

PAY - AVIATION DUTY - SCOPE OF NONFLYING OFFICER LIMITATION THE RESTRICTION IN THE MARINE CORPS APPROPRIATION FOR THE FISCAL YEAR 1942 THAT THE FUNDS PROVIDED THEREIN SHALL NOT BE AVAILABLE FOR "INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY" RELATES TO NONFLYING OFFICERS UNDER THE LAWS APPLICABLE TO THE MARINE CORPS AND NOT TO NONFLYING OFFICERS UNDER LAWS APPLICABLE TO THE ARMY, AND, THEREFORE, STUDENT AVIATORS IN THE MARINE CORPS NEED NOT BE CLASSED AS NONFLYING OFFICERS FOR THE PURPOSES OF THIS RESTRICTION. 21 COMP. GEN. 17, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 16, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 3, 1941, TRANSMITTING A LETTER FROM THE PAYMASTER, HEADQUARTERS UNITED STATES MARINE CORPS, DATED OCTOBER 3, 1941, AS FOLLOWS: REFERENCES: (A) SEC. 20, ACT OF JUNE 10, 1922.

(B) NAVAL APPROPRIATION ACT OF 1942.

(C) SEC. 1, ACT OF OCTOBER 4, 1940.

(D) ART. 2140-2 BUREAU SUPPLIES AND ACCOUNTS

MEMORANDA.

(E) 21 COMP. GEN. 17.

1. REFERENCE (A) PROVIDES; "THAT ALL OFFICERS, * * * OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, WHEN BY COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS * * * SHALL RECEIVE THE SAME INCREASE OF THEIR PAY * * * AS ARE AUTHORIZED FOR THE PERFORMANCE OF LIKE DUTIES IN THE ARMY.' ( ITALICS SUPPLIED.)

2. REFERENCE (B), AT PAGE 21, PROVIDES; " PAY OF OFFICERS, * * * FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS, NONE OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY, WHICH SHALL BE THE LEGAL MAXIMUM RATES AS TO SUCH NONFLYING OFFICERS OR OBSERVERS; * * *.' ( ITALICS SUPPLIED.)

3. THE TERM "FLYING OFFICER" HAS BEEN DEFINED BY LAW FOR THE ARMY, REFERENCE (C), AND IS AS FOLLOWS; "* * * A FLYING OFFICER IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER OR AS ANY OTHER MEMBER OF COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.' ( SECRETARY OF THE NAVY FOR THE NAVY, COMP. GEN. B-13727, DATED JANUARY 6, 1941), WHILE FOR THE NAVY THE TERM "FLYING OFFICER" HAS BEEN DEFINED ADMINISTRATIVELY BY THE SECRETARY OF THE NAVY, REFERENCE (D) AND IS AS FOLLOWS: "A FLYING OFFICER, BOTH IN TIME OF PEACE AND OF WAR, MAY BE DEFINED AS AN OFFICER WHO IS QUALIFIED AS A NAVAL AVIATOR AND HAS BEEN OFFICIALLY DESIGNATED AS SUCH, OR A STUDENT NAVAL AVIATOR WHO HAS BEEN SO DESIGNATED. * * *.' ( ITALICS SUPPLIED.)

4. A LIMITATION SUCH AS APPEARS IN THE NAVAL APPROPRIATION ACT, 1942, REFERENCE (B) APPEARS IN THE MILITARY APPROPRIATION ACT, 1941, AND THE COMPTROLLER GENERAL IN CONSTRUING ITS PROVISIONS, REFERENCE (E), HELD THAT ARMY OFFICERS WHO WERE IN TRAINING FOR AERONAUTICAL RATINGS DID NOT COME WITHIN THE STATUTORY DEFINITION OF THE TERM "FLYING OFFICER" AND, THEREFORE, WERE SUBJECT TO THE LIMITATION ON THEIR PAY.

5. HAVING IN MIND THE PROVISIONS OF REFERENCE (A) AND THE STATUTORY DEFINITION OF A "FLYING OFFICER," REFERENCE (D), DOUBT ARISES AS TO WHETHER IT IS NOW PROPER TO PAY A " STUDENT NAVAL AVIATOR" 50 PERCENT OF HIS PAY AS REMUNERATION FOR MAKING AERIAL FLIGHTS PRIOR TO RECEIPT OF AN AERONAUTICAL RATING AS A NAVAL AVIATOR (PILOT).

6. IN ORDER THAT DISBURSING OFFICERS OF THE MARINE CORPS MAY BE PROPERLY INFORMED IN THIS MATTER, IT IS REQUESTED THAT THE SECRETARY OF THE NAVY ADVISE THE PAYMASTER, MARINE CORPS, OF HIS OPINION OR, IF DEEMED APPROPRIATE, THAT THE MATTER BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, FOR HIS DECISION.

SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY SECTION 4 OF THE ACT OF MAY 31, 1924, 43 STAT. 250, AND SECTION 6 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, PROVIDES AS OLLOWS:

THAT ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF ALL BRANCHES OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT, SHALL RECEIVE THE SAME INCREASE OF THEIR PAY AND THE SAME ALLOWANCE FOR TRAVELING EXPENSES AS ARE AUTHORIZED FOR THE PERFORMANCE OF LIKE DUTIES IN THE ARMY. EXCLUSIVE OF THE ARMY AIR CORPS, AND STUDENT AVIATORS AND QUALIFIED AIRCRAFT PILOTS OF THE NAVY, MARINE CORPS, AND COAST GUARD, THE NUMBER OF OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT WHO MAY BE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT SHALL NOT AT ANY ONE TIME EXCEED 1 PERCENTUM OF THE TOTAL AUTHORIZED COMMISSIONED STRENGTH OF SUCH SERVICE. * * *

THE ACT OF MAY 6, 1941, PUBLIC, NO. 48, 77TH CONGRESS, 55 STAT. 169, MAKING APPROPRIATION FOR THE NAVAL SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1942, PROVIDES, IN PERTINENT PART, AS OLLOWS:

PAY, MARINE CORPS

* * * FOR PAY AND ALLOWANCES PRESCRIBED BY LAW FOR ALL OFFICERS ON THE ACTIVE LIST--- PAY AND ALLOWANCES, $5,577,293, INCLUDING $517,611, FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS, NONE OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH NONFLYING OFFICERS OR OBSERVERS; * * *.

THE ACT OF JUNE 30, 1941, PUBLIC, NO. 139, 77TH CONGRESS, 55 STAT. 368, MAKING APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1942, UNDER " PAY OF THE ARMY" PROVIDES AS FOLLOWS:

* * * AVIATION INCREASE TO COMMISSIONED AND WARRANT OFFICERS, $14,188,834, NONE OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS AT A RATE IN EXCESS OF $720 PER ANNUM, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH OFFICERS, AND SUCH NONFLYING OFFICERS SHALL BE ENTITLED TO SUCH RATE OF INCREASE BY PERFORMING THREE OR MORE FLIGHTS WITHIN EACH NINETY-DAY PERIOD, PURSUANT TO ORDERS OF COMPETENT AUTHORITY, WITHOUT REGARD TO THE DURATION OF SUCH FLIGHT OR FLIGHTS; * * *.

IN CONSTRUING A SIMILAR PROVISION CONTAINED IN THE APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1941, IT WAS HELD IN DECISION B-17795, DATED JULY 14, 1941, 21 COMP. GEN. 17 (QUOTING THE SYLLABUS), AS FOLLOWS:

THE PROVISION IN THE MILITARY APPROPRIATION ACT, 1941, LIMITING TO $720 PER ANNUM THE INCREASED PAY OF "NONFLYING OFFICERS" FOR MAKING AERIAL FLIGHTS IS APPLICABLE NOT ONLY TO THE PAY OF FLIGHT SURGEONS AND OFFICERS FROM OTHER BRANCHES WHILE FLYING IN THE CAPACITY OF OBSERVERS BUT ALSO TO THE PAY OF OFFICERS FROM ANY BRANCH OF THE ARMY WHO CANNOT BE CLASSIFIED AS "FLYING OFFICERS" UNDER THE STATUTORY DEFINITION OF THAT TERM WHILE UNDERGOING TRAINING AS AIRCRAFT PILOTS, OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC.

THE TERM "FLYING OFFICERS" IN THE NAVY AND MARINE CORPS HAS NOT BEEN DEFINED BY STATUTE AS IT HAS BEEN DEFINED WITH RESPECT TO THE ORGANIZATION OF THE AIR CORPS OF THE ARMY. HOWEVER, IN SECTION 20 OF THE JOINT SERVICE PAY ACT, AS AMENDED JULY 2, 1926, THE STATUTE HAS AT LEAST RECOGNIZED THAT STUDENT AVIATORS OF THE NAVY, MARINE CORPS, AND COAST GUARD ARE INCLUDED IN THE FLYING PERSONNEL WHO MAY BE ASSIGNED TO DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS WITHOUT REFERENCE TO THE LIMITATION AS TO THE NUMBER OF OFFICERS ON FLYING STATUS FROM OTHER BRANCHES OF THE SERVICE. THE PROVISION IS THAT " EXCLUSIVE OF THE ARMY AIR CORPS, AND STUDENT AVIATORS AND QUALIFIED AIRCRAFT PILOTS OF THE NAVY, MARINE CORPS, AND COAST GUARD" THE NUMBER OF OFFICERS ASSIGNED TO DUTY REQUIRING THEM TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS SHALL NOT EXCEED ONE PERCENTUM OF THE TOTAL AUTHORIZED COMMISSIONED STRENGTH OF THE SERVICE CONCERNED. THIS CLEARLY RECOGNIZES THAT STUDENT AVIATORS ARE INCLUDED AMONG FLYING PERSONNEL OF THE NAVY AND MARINE CORPS, AND THE DEPARTMENTAL INTERPRETATION IN ARTICLE 2140-2, BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA, IS TO THE SAME EFFECT. IN VIEW OF THIS STATUTORY INDICATION IT IS CONCLUDED THAT THE APPROPRIATION RESTRICTION IN THE MARINE CORPS APPROPRIATIONS RELATES TO NONFLYING OFFICERS UNDER THE LAWS APPLICABLE TO THE MARINE CORPS AND DOES NOT NECESSARILY INCLUDE OFFICERS WHO UNDER THE STATUTORY DEFINITION FOR THE ARMY ARE REQUIRED TO BE CLASSED AS NONFLYING OFFICERS. SEE IN THIS CONNECTION B-21167, OCTOBER 21, 1941, 21 COMP. GEN. 352, TO THE SECRETARY OF THE NAVY.