B-36660, OCTOBER 9, 1943, 23 COMP. GEN. 267

B-36660: Oct 9, 1943

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BECAME INCAPACITATED BY REASON OF AN AVIATION ACCIDENT IS NOT ENTITLED UNDER EXECUTIVE ORDER NO. 9195. HE WOULD HAVE BEEN CONTINUED IN A FLYING STATUS. IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THE FOLLOWING NAMED ENLISTED COMBAT CREW MEN ARE DETAILED TO DUTY WHICH INHERENTLY INVOLVES FLYING. THE EXPENDITURE OF ADDITIONAL FUNDS FOR FLYING WILL BE CHARGED TO PROCUREMENT FD 74 P 414-01 A 10425-23 FOR THE FISCAL YEAR 1943: NAME A.S.N. ALSO WAS TRANSMITTED: HEADQUARTERS. ASN 17013354 WAS WOUNDED IN ACTION AGAINST THE ENEMY WHILE IN ACTUAL FLIGHT ON OCTOBER 24. 1942 AND IS ENTITLED TO FLYING PAY UNDER THE PROVISIONS OF PAR. 10 AR 35- 1480 FOR THE PERIOD OF NOVEMBER 1.

B-36660, OCTOBER 9, 1943, 23 COMP. GEN. 267

PAY - AVIATION DUTY - AFTER DATE OF INCAPACITATING AVIATION ACCIDENT AN ARMY ENLISTED MAN WHO, WHILE ENGAGED IN REGULAR AND FREQUENT AERIAL FLIGHTS UNDER ORDERS SPECIFICALLY COVERING A PERIOD OF ONE MONTH, BECAME INCAPACITATED BY REASON OF AN AVIATION ACCIDENT IS NOT ENTITLED UNDER EXECUTIVE ORDER NO. 9195, WHICH PERMITS THE CONTINUANCE OF FLYING PAY--- AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942--- FOR THREE MONTHS FOLLOWING THE DATE OF AN INCAPACITATING ACCIDENT, TO BE CONTINUED IN A FLYING STATUS, FOR PAY PURPOSES, DURING SUCH THREE MONTH PERIOD, IN THE ABSENCE OF A SHOWING THAT, EXCEPT FOR THE INCAPACITATING ACCIDENT, HE WOULD HAVE BEEN CONTINUED IN A FLYING STATUS, UNDER COMPETENT ORDERS, DURING SUCH THREE MONTH PERIOD.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR H. H. SIMON, U.S. ARMY, OCTOBER 9, 1943:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF AUGUST 26, 1943, YOUR LETTER OF JULY 29, 1943, FIN/HCC/WF/B1, IN WHICH YOU REQUEST DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, SUBMITTED THEREWITH IN FAVOR OF PAUL J. SMITH, STAFF SERGEANT, U.S. ARMY, FOR FLYING PAY FROM NOVEMBER 1, 1942, TO JANUARY 31, 1943.

THERE APPEARS IN THE FILE TRANSMITTED WITH YOUR LETTER, A COPY OF AN ORDER AS FOLLOWS:

81ST BOMBARDMENT SQUADRON (M), SQUADRON ORDER) OFFICE OF THE SQUADRON COMMANDER,

NO. 17 ( OCTOBER 1, 1942

EXTRACT

2. UNDER THE PROVISIONS OF AR 35-1480 AND AUTHORITY CONTAINED IN AFF REGULATION 35-29, DATED JULY 20, 1942, THE FOLLOWING NAMED ENLISTED COMBAT CREW MEN ARE DETAILED TO DUTY WHICH INHERENTLY INVOLVES FLYING, NECESSITATING REGULAR AND FREQUENT AERIAL FLIGHT FOR THE PERIODS SHOWN, DATED INCLUSIVE. THE EXPENDITURE OF ADDITIONAL FUNDS FOR FLYING WILL BE CHARGED TO PROCUREMENT FD 74 P 414-01 A 10425-23 FOR THE FISCAL YEAR 1943: NAME A.S.N. DUTY YEARS SERVE. INCL.

DATES

* * * * * * * S/SGT SMITH, PAUL J. 17013354 COMBAT GUN------------------- ---1-31

(S) WILLIAM W. WILCOX,

(T) WILLIAM W. WILCOX,

MAJOR AIR CORPS,

COMMANDING.

A COPY OF A CERTIFICATE READING AS FOLLOWS, ALSO WAS TRANSMITTED:

HEADQUARTERS, 12TH BOMBARDMENT GROUP (M) AAF,

OFFICE OF THE GROUP SURGEON,

APRIL 21, 1943.

CERTIFICATE

I HEREBY CERTIFY THAT STAFF SERGEANT PAUL J. SMITH, ASN 17013354 WAS WOUNDED IN ACTION AGAINST THE ENEMY WHILE IN ACTUAL FLIGHT ON OCTOBER 24, 1942 AND IS ENTITLED TO FLYING PAY UNDER THE PROVISIONS OF PAR. 10 AR 35- 1480 FOR THE PERIOD OF NOVEMBER 1, 1942, TO JANUARY 31, 1943, INCLUSIVE. STAFF SERGEANT PAUL J. SMITH IS UNDERGOING TREATMENT AS A RESULT OF HIS WOUND, AND IS AT THE BREAKER ( HOTEL) HOSPITAL, WEST PALM BEACH, FLORIDA.

J. A. STUUON,

MAJOR, M.C. ( AC),

GROUP SURGEON

A COPY OF A FLIGHT CERTIFICATE INCLUDED IN THE FILE INDICATES THAT SERGEANT SMITH PERFORMED SUFFICIENT FLIGHTS BEFORE BEING WOUNDED ON OCTOBER 24, 1942, TO QUALIFY FOR FLYING PAY FOR THE MONTH OF OCTOBER,.

PARAGRAPH 1, SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, PROVIDES IN PERTINENT PART:

OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT AND MEMBERS OF THE RESERVE FORCES OF SUCH SERVICES, AND THE NATIONAL GUARD SHALL RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY 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: * * * REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS PARAGRAPH SHALL BE MADE BY THE PRESIDENT * * *.

PARAGRAPH 10, EXECUTIVE ORDER 9195, ISSUED JULY 7, 1942, EFFECTIVE JUNE 1, 1942, PROVIDES IN PART:

FOR PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD OR NATIONAL GUARD (WHEN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AND WHEN PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED), WHO ARE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, THE FOLLOWING REQUIREMENTS ARE PRESCRIBED: PROVIDED, THAT ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF COMPETENT AUTHORITY AND WHO AS A RESULT OF SUCH ORDERS HAS PARTICIPATED REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT:

PARAGRAPH 1 (H) OF THE ABOVE EXECUTIVE ORDER PROVIDES:

THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT OR AS THE RESULT OF JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF, OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

IT APPEARS SUFFICIENTLY ESTABLISHED THAT SMITH'S INJURY--- A WOUND WHILE IN ACTUAL FLIGHT--- WAS AN AVIATION ACCIDENT, WITHIN THE ABOVE DEFINITION, AND THAT AS A RESULT OF HIS INJURY HE WAS INCAPACITATED FOR FLYING.

THE QUESTION HERE PRESENTED IS WHETHER DURING THE FIRST THREE MONTHS OF THE PERIOD OF SUCH INCAPACITY HE IS ENTITLED TO FLYING PAY, IN THE ABSENCE OF ORDERS DIRECTING PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS DURING SAID THREE MONTHS.

PARAGRAPH 1 OF SECTION 18 OF THE ACT OF JUNE 16, 1942, HEREINBEFORE QUOTED, PROVIDES FLYING PAY FOR MILITARY PERSONNEL WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE AND, IN CONSEQUENCE OF SUCH ORDERS, DO PARTICIPATE, IN REGULAR AND FREQUENT AERIAL FLIGHTS. SAID PARAGRAPH CONFERS ON THE PRESIDENT AUTHORITY TO DEFINE "REGULAR AND FREQUENT FLIGHTS" AND TO MAKE REGULATIONS IN EXECUTION OF THE PROVISIONS OF THE STATUTE.

PARAGRAPH 10 OF EXECUTIVE ORDER 9195, SUPRA, PROVIDES THAT ONE WHO HAS PARTICIPATED, UNDER COMPETENT ORDERS, REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT "SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS," ETC. THIS PROVISION RELIEVES ONE INCAPACITATED BY REASON OF AN AVIATION ACCIDENT FROM THE REQUIREMENT OF PERFORMING, FOR THREE MONTHS AFTER SUCH ACCIDENT, FLIGHTS OTHERWISE REQUIRED, BY COMPETENT ORDERS, TO BE PERFORMED DURING THAT PERIOD. THE APPARENT PURPOSE OF SUCH PROVISION WAS TO CONTINUE THE INCAPACITATED PERSON IN A FLYING STATUS, FOR PAY PURPOSES, DURING THE THREE MONTHS PERIOD FOLLOWING THE ACCIDENT WITHOUT PERFORMANCE OF THE FLYING DUTIES WHICH WOULD HAVE BEEN REQUIRED HAD NOT THE ACCIDENT OCCURRED. HOWEVER, THERE APPEARS NO PROPER BASIS FOR CONSTRUING THIS PROVISION AS AUTHORITY TO CONTINUE A PERSON IN A FLYING STATUS FOR PAY PURPOSES DURING THE THREE MONTHS FOLLOWING AN AVIATION ACCIDENT IN THE ABSENCE OF ANYTHING TO INDICATE THAT, EXCEPT FOR THE INCAPACITATING ACCIDENT, SUCH PERSON WOULD HAVE, BY COMPETENT ORDERS, BEEN CONTINUED IN A STATUS REQUIRING REGULAR AND FREQUENT FLIGHTS DURING THE THREE MONTHS PERIOD FOLLOWING THE ACCIDENT. SERGEANT SMITH'S ORDERS TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS SPECIFICALLY COVERED A DEFINITE PERIOD WHICH EXPIRED OCTOBER 31, 1942, AND THERE IS NO SHOWING THAT SUCH PARTICIPATION WOULD HAVE BEEN REQUIRED AFTER THAT DATE HAD HE NOT BEEN INCAPACITATED BY THE ACCIDENT ON OCTOBER 24, 1942. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.

THE ACTION HEREIN TAKEN IS WITHOUT PREJUDICE TO FURTHER CONSIDERATION OF THE MATTER, SHOULD THERE BE SUBMITTED ADDITIONAL FACTS AS TO THE CIRCUMSTANCES UNDER WHICH THIS MAN WAS DETAILED TO FLYING DUTY FOR A PERIOD OF ONLY ONE MONTH AND TENDING TO SHOW THAT HE WOULD HAVE BEEN CONTINUED IN A FLYING STATUS, UNDER COMPETENT ORDERS, SUBSEQUENT TO OCTOBER 31, 1942, HAD HE NOT RECEIVED THE INJURIES WHICH RESULTED IN INCAPACITATING HIM FOR FLYING DUTY.