B-39121, JUNE 20, 1944, 23 COMP. GEN. 964

B-39121: Jun 20, 1944

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PARTICIPATION IN AERIAL FLIGHTS IS NOT REQUIRED IN ORDER TO BE ENTITLED TO AVIATION PAY MAY NOT BE CONSIDERED AS THE THREE MONTHS FOLLOWING HIS RESCUE DURING WHICH HE WAS INCAPACITATED FOR FLYING BECAUSE OF SHOCK AND EXHAUSTION RESULTING FROM HIS STAY IN THE JUNGLES. MUST BE CONSIDERED AS THE THREE MONTHS FOLLOWING THAT IN WHICH HE WAS SHOT DOWN. WAS RESCUED IN MARCH 1943. IS NOT ENTITLED TO AVIATION PAY FOR JULY AND AUGUST. A FLYING OFFICER IS INCAPACITATED FOR THREE MONTHS FOLLOWING THE ACCIDENT. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THE UNDERSIGNED WAS SHOT DOWN BY ENEMY ANTIAIRCRAFT FIRE WHILE ENGAGED IN A DULY AUTHORIZED BOMBARDMENT MISSION OVER THE TOWN OF RABAUL ON THE ISLAND OF NEW BRITAIN.

B-39121, JUNE 20, 1944, 23 COMP. GEN. 964

PAY - AVIATION DUTY - DURING PERIOD OF INCAPACITY IN THE CASE OF AN ARMY FLYING OFFICER SHOT DOWN OVER ENEMY-HELD TERRITORY AND SUBSEQUENTLY RESCUED AFTER A TEN-MONTH PERIOD OF REFUGE IN JUNGLES, THE THREE-MONTH GRACE PERIOD FOLLOWING AN INCAPACITATING AVIATION ACCIDENT DURING WHICH, AS PROVIDED BY EXECUTIVE REGULATIONS PERTAINING TO AVIATION PAY, PARTICIPATION IN AERIAL FLIGHTS IS NOT REQUIRED IN ORDER TO BE ENTITLED TO AVIATION PAY MAY NOT BE CONSIDERED AS THE THREE MONTHS FOLLOWING HIS RESCUE DURING WHICH HE WAS INCAPACITATED FOR FLYING BECAUSE OF SHOCK AND EXHAUSTION RESULTING FROM HIS STAY IN THE JUNGLES, BUT, RATHER, MUST BE CONSIDERED AS THE THREE MONTHS FOLLOWING THAT IN WHICH HE WAS SHOT DOWN. AN ARMY FLYING OFFICER WHO, AFTER HAVING BEEN SHOT DOWN OVER ENEMY HELD TERRITORY IN MAY, 1942, WAS RESCUED IN MARCH 1943, AND WHO, BECAUSE OF SHOCK AND EXHAUSTION SUFFERED AS A RESULT OF BEING LOST IN JUNGLES FOR THE TEN-MONTH PERIOD, PERFORMED NO FLIGHTS UNTIL SEPTEMBER 1943, IS NOT ENTITLED TO AVIATION PAY FOR JULY AND AUGUST, 1943, UNDER THE RULE THAT WHERE, DUE TO AN AVIATION ACCIDENT, A FLYING OFFICER IS INCAPACITATED FOR THREE MONTHS FOLLOWING THE ACCIDENT, FLIGHT REQUIREMENTS MAY BE MADE UP AT ANY TIME DURING THE THREE-MONTH PERIOD WHICH BEGINS AT THE END OF THE THREE-MONTH PERIOD OF INCAPACITY.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. J. A. MILTON, U.S. ARMY, JUNE 20, 1944:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF DECEMBER 21, 1943, YOUR LETTER OF NOVEMBER 25, 1943, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF EUGENE D. WALLACE, FIRST LIEUTENANT, AIR CORPS, AND REPRESENTING FLYING PAY FROM APRIL 1, 1943, TO AUGUST 31, 1943.

IN EXPLANATION OF HIS CLAIM FOR FLYING PAY FOR THE ABOVE PERIOD LIEUTENANT WALLACE STATES:

ON MAY 24, 1942, THE UNDERSIGNED WAS SHOT DOWN BY ENEMY ANTIAIRCRAFT FIRE WHILE ENGAGED IN A DULY AUTHORIZED BOMBARDMENT MISSION OVER THE TOWN OF RABAUL ON THE ISLAND OF NEW BRITAIN, CAME DOWN AT SEA, MADE HIS WAY ASHORE TO THE ISLAND OF NEW BRITAIN, WHICH WAS ENTIRELY UNDER ENEMY CONTROL, AND TOOK REFUGE IN THE JUNGLES TO AVOID CAPTURE. UNTIL MARCH 25, 1943, WHEN RESCUED BY FRIENDLY AIRCRAFT AND RETURNED TO FRIENDLY TERRITORY, THE UNDERSIGNED WAS FORCED TO SUBSIST ON WHATEVER WAS TO BE FOUND IN THE WILD COUNTRY AND, BEING UNARMED AND ALMOST ALONE, WAS FORCED TO FLEE CONTINUALLY FROM PURSUING JAPANESE DETACHMENTS.

DURING THE PERIOD OF ENFORCED STAY ON THE ISLAND OF NEW BRITAIN, THE UNDERSIGNED WAS CARRIED ON THE ROLLS OF THE WAR DEPARTMENT AS "MISSING IN ACTION.' UPON RETURN TO FRIENDLY TERRITORY, PAYMENT WAS RECEIVED OF PAY AND ALLOWANCES, INCLUDING FLYING PAY, FOR THE PERIOD ENDING MARCH 31, 1943, UNDER THE PROVISIONS OF THE ACT OF MARCH 7, 1942, AS AMENDED. FURTHER PAYMENT OF FLYING PAY WAS MADE TO THE UNDERSIGNED, BECAUSE OF INABILITY TO PERFORM FLIGHTS DUE TO PHYSICAL CONDITION, FOR THE PERIOD APRIL 1 TO AUGUST 31, 1943. IN SEPTEMBER 1943, THE PHYSICAL CONDITION OF THE UNDERSIGNED IMPROVED SUFFICIENTLY TO ENABLE HIM TO PERFORM FLIGHTS AGAIN, WHICH WERE MADE AS SHOWN BY THE ATTACHED FLIGHT CERTIFICATES.

CLAIM IS HEREBY MADE FOR FLYING PAY FOR THE MONTHS OF APRIL, MAY, AND JUNE, 1943, UNDER THE PROVISIONS OF PARAGRAPH 10, EXECUTIVE ORDER NO. 9115, ATTENTION BEING INVITED TO THE ATTACHED CERTIFICATE OF MEDICAL OFFICER AND TO 22 COMP. GEN. 1038. CITED EXECUTIVE ORDER WAIVES THE REQUIREMENT THAT FLIGHTS BE PERFORMED IN ORDER TO RECEIVE FLYING PAY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF THE ACCIDENT. SINCE PARAGRAPH 1 (H) OF THE EXECUTIVE ORDER DEFINES THE TERM "AVIATION ACCIDENT" AS "AN ACCIDENT * * * IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS" AND SINCE THE ABOVE CITED DECISION OF THE COMPTROLLER GENERAL DEFINES "SHOCK AND EXHAUSTION AS A RESULT OF BEING SHOT DOWN" AS AN "INJURY," WITHIN THE MEANING OF THE EXECUTIVE ORDER, AND SINCE INJURY IN THE FORM OF SHOCK AND EXHAUSTION WAS SUFFERED CONTINUALLY DURING THE PERIOD OF ENFORCED STAY IN THE JUNGLES, IT IS BELIEVED THAT THE ACCIDENT IS TO BE CONSIDERED AS OF A CONTINUING NATURE, EXTENDING OVER THE ENTIRE PERIOD OF ENFORCED STAY IN THE JUNGLES. THEREFORE, THE THREE MONTH PERIOD "IMMEDIATELY FOLLOWING THE DATE OF THE ACCIDENT" WOULD APPEAR TO COMPRISE THE MONTHS OF APRIL, MAY AND JUNE, 1943.

IN CONNECTION WITH THE ABOVE STATED CLAIM, FURTHER CLAIM IS MADE FOR FLYING PAY FOR THE MONTHS OF JULY AND AUGUST, 1943, ON THE BASIS OF FLIGHTS PERFORMED DURING THE MONTH OF SEPTEMBER, 1943, AS SHOWN ON THE ATTACHED FLIGHT CERTIFICATE AND SCHEDULE. THE CERTIFICATE REFERRED TO BY THE OFFICER SHOWS THAT DURING THE MONTH OF SEPTEMBER, 1943, HE PERFORMED 25 FLIGHTS, WITH A TOTAL FLYING TIME OF 16 HOURS, 30 MINUTES.

SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144, PROVIDES:

ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER. * * *

AN INCREASE OF 50 PERCENTUM OF THEIR PAY, BY REASON OF PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS UNDER ORDERS OF COMPETENT AUTHORITY, IS GRANTED TO OFFICERS OF THE ARMY BY SECTION 2 OF THE ACT OF JULY 2, 1926, 44 STAT. 780, 781--- EFFECTIVE WHEN LIEUTENANT WALLACE'S PLANE WAS SHOT DOWN ON MAY 24, 1942--- AND BY SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368--- EFFECTIVE DURING THE PERIOD COVERED BY THE PRESENT CLAIM. EACH OF THESE ACTS REQUIRES THAT THERE BE PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS UNDER ORDERS OF COMPETENT AUTHORITY "AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT.' PARAGRAPH 10 OF EXECUTIVE ORDER NO. 5865, EFFECTIVE JULY 1, 1932, ISSUED PURSUANT TO THE ABOVE ACT OF JULY 2, 1926, PROVIDED IN PART, AS FOLLOWS:

10. FOR PERSONNEL OF THE ARMY, * * * 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, 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 A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT:

(A) DURING ONE CALENDAR MONTH. 10 OR MORE FLIGHTS TOTALING AT LEAST 3 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF A LEAST 4 HOURS.

(B) DURING 2 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (A) ABOVE HAVE NOT BEEN MET. 20 OR MORE FLIGHTS TOTALING AT LEAST 6 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST 8 HOURS.

(C) DURING 3 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (B) ABOVE HAVE NOT BEEN MET. 30 OR MORE FLIGHTS TOTALING AT LEAST 9 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST 12 HOURS.

PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, SUPERSEDING EXECUTIVE ORDER 5865 AS OF JUNE 1, 1942, AND IN EFFECT DURING THE PERIOD COVERED BY LIEUTENANT WALLACE'S CLAIM, IS, INSOFAR AS HERE MATERIAL, SUBSTANTIALLY THE SAME AS THE ABOVE-QUOTED PARAGRAPH OF THE SUPERSEDED ORDER.

PARAGRAPH 1 (G) OF EXECUTIVE ORDER NO. 5865, PROVIDES:

(G) THE TERM "AVIATION ACCIDENT," AS USED IN THESE REGULATIONS, SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, 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.

PARAGRAPH 1 (H) OF EXECUTIVE ORDER NO. 9195, REPEATS THE ABOVE DEFINITION, WITHOUT ANY CHANGE HERE MATERIAL, AND ADDS--- "OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.'

BOTH EXECUTIVE ORDERS PROVIDE THAT PARTICIPATION IN AERIAL FLIGHTS SHALL NOT BE REQUIRED DURING A PERIOD OF INCAPACITY BY REASON OF AN AVIATION ACCIDENT,"FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT.'

THIS LIMITATION HAS BEEN CONSTRUED TO MEAN THE PERIOD IMMEDIATELY FOLLOWING THE ACCIDENT. SEE DECISION OF THIS OFFICE DATED FEBRUARY 6, 1943, B-31625.

ATTACHED TO THE VOUCHER IS A CERTIFICATE DATED SEPTEMBER 24, 1943, EXECUTED BY MAJOR R. E. WEISMANN ( MC) AS FOLLOWS: TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY THAT ST LIEUT. EUGENE D. WALLACE, 10-431910, A.C., WAS FOUND TO BE TEMPORARILY INCAPACITATED FOR FLYING DUTY FROM JUNE TO SEPTEMBER 1943, BECAUSE OF SHOCK AND EXHAUSTION AS A RESULT OF BEING SHOT DOWN AT SEA, AND LOST FOR A PERIOD OF TEN MONTHS ON NEW BRITAIN ISLAND IN THE SOUTH PACIFIC.

WHETHER THE OFFICER WAS INCAPACITATED FOR THE THREE MONTHS' PERIOD IMMEDIATELY FOLLOWING THE ACCIDENT OF MAY 24, 1942, IS NOT SUGGESTED, BUT THIS APPEARS TO BE IMMATERIAL FOR THE REASON THAT DURING SUCH PERIOD IT IS REPORTED THAT HE WAS PAID INCREASED FLYING PAY UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF MARCH 7, 1942, SUPRA, AND SINCE SUCH PAYMENT WAS CONCURRENT WITH THE PERIOD THAT FLYING PAY WOULD HAVE BEEN CREDITED DUE TO INCAPACITY RESULTING FROM INJURY IN AN AVIATION ACCIDENT, AND SINCE SUCH BENEFITS ARE NOT CUMULATIVE, HE HAS RECEIVED THE MAXIMUM FLYING PAY BENEFITS AUTHORIZED BY STATUTE, EVEN CONCEDING THAT THERE EXISTED AN INCAPACITY FROM AN AVIATION ACCIDENT WHICH OCCURRED MAY 24, 1942. THE PORTION OF LIEUTENANT WALLACE'S CLAIM REPRESENTING FLYING PAY DURING A PERIOD OF INCAPACITY FOLLOWING AN AVIATION ACCIDENT COVERS A PERIOD BEGINNING SOME TEN MONTHS AFTER THE ACCIDENT OCCURRED. FOR REASONS STATED, PAYMENT OF THAT PORTION OF THE VOUCHER, COVERING AVIATION PAY FOR APRIL, MAY AND JUNE, 1943, IS NOT AUTHORIZED.

THE FURTHER QUESTION IS PRESENTED AS TO WHETHER THE OFFICER'S PERFORMANCE OF 25 FLIGHTS, TOTALING 16 1/2 HOURS, IN SEPTEMBER, 1943, ENTITLES HIM UNDER THE ABOVE REQUIREMENTS TO FLYING PAY FOR THE TWO PRIOR MONTHS, JULY AND AUGUST, 1943.

THE THREE MONTHS' GRACE PERIOD DURING WHICH FLIGHT REQUIREMENTS MAY BE MADE UP IS FIXED AS AN ENTIRETY AND WHEN SUCH GRACE PERIOD ONCE HAS EXPIRED, FLYING PAY CANNOT ACCRUE UNTIL FLYING IS ACTUALLY PERFORMED. OTHER WORDS, WHEN FOR A PERIOD OF MORE THAN THREE MONTHS NO FLIGHTS HAVE BEEN PERFORMED THE ABOVE-CITED PROVISIONS AS TO MAKING UP FLIGHT REQUIREMENTS ARE INOPERATIVE. 4 COMP. GEN. 975; 9 ID. 487. AN EXCEPTION TO THIS RULE ARISES WHERE, BY REASON OF AN AVIATION ACCIDENT WHICH INCAPACITATES AN AVIATION OFFICER FOR THREE MONTHS FOLLOWING SUCH ACCIDENT, THE NEW THREE MONTHS' PERIOD BEGINS AT THE END OF THE PERIOD OF INCAPACITY AND MINIMUM FLIGHT REQUIREMENTS MAY BE MADE UP DURING ANY OF SUCH FOLLOWING THREE MONTHS. SEE 16 COMP. GEN. 134.

HOWEVER, IN THE INSTANT CASE IT APPEARS THAT THE OFFICER PERFORMED NO FLIGHTS FOR MORE THAN FIFTEEN MONTHS PRIOR TO SEPTEMBER 1943. THEREFORE, FLIGHTS PERFORMED DURING THAT MONTH MAY NOT BE USED TO MAKE UP DEFICIENCIES IN PRIOR MONTHS. FLYING PAY FOR JULY AND AUGUST, 1943, IS NOT AUTHORIZED.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.