B-45495, JULY 20, 1945, 25 COMP. GEN. 77

B-45495, JULY 20, 1945, 25 COMP. GEN. 77

PAY - AVIATION DUTY - REVOCATION OF SUSPENSION FROM FLYING WHERE, PURSUANT TO PARAGRAPH 12 OF EXECUTIVE ORDER NO. 9195, A SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY IS REVOKED WITHIN THE THREE CALENDAR MONTHS' PERIOD PRESCRIBED BY PARAGRAPH 10 OF SAID EXECUTIVE ORDER DURING WHICH FLIGHT REQUIREMENTS MAY BE MADE UP, THE RIGHT TO AVIATION PAY FOR THE MONTH OF REVOCATION AND PRIOR MONTHS IS FOR DETERMINATION UNDER PARAGRAPH 10 AS IF THE SUSPENSION HAD NEVER BEEN MADE; BUT IF REVOCATION OCCURS AFTER EXPIRATION OF THE GRACE PERIOD, THE RIGHT TO AVIATION PAY FOR ANY PART OF THE PERIOD OF SUSPENSION IS LOST.

ACTING COMPTROLLER GENERAL MCFARLAND TO THE SECRETARY OF THE NAVY, JULY 20, 1945:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1945, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED JANUARY 6, 1945, WITH ENCLOSURES THEREIN MENTIONED, CONCERNING THE MATTER OF ENTITLEMENT TO AVIATION PAY WHILE TEMPORARILY SUSPENDED FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY.

IN VIEW OF THE APPARENT DISCREPANCY BETWEEN THE RULING IN 8 COMP. GEN. 384 AND THAT CONTAINED IN YOUR DECISION OF NOVEMBER 29, 1944, B 45495, ON THE QUESTION OF ENTITLEMENT TO AVIATION PAY FOLLOWING REVOCATION OF A SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY, YOUR DECISION IS REQUESTED AS TO WHETHER THE RULING QUOTED IN PARAGRAPH 1 OF THE ENCLOSED LETTER, FROM 8 COMP. GEN. 384, WILL NO LONGER BE FOLLOWED.

PRIOR TO MODIFICATION OF CURRENT INSTRUCTIONS OF THE BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA ( ARTICLE 2140-2, SANDIA MEMO. NO. 504 -- SUSPENSION FOR SICKNESS OR INJURY IN LINE OF DUTY) TO ACCORD WITH THE RULING IN DECISION OF NOVEMBER 29, 1944, B-45495, CLARIFICATION OF THAT DECISION IS REQUESTED WITH RESPECT TO THE FIVE SPECIFIC CASES SET FORTH IN PARAGRAPH 2 OF THE ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS.

PARAGRAPH 10 OF EXECUTIVE ORDER 9195, JULY 7, 1942, PROVIDES IN PART:

10. 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:

(A) DURING ONE CALENDAR MONTH. 10 OR MORE FLIGHTS TOTALING AT

LEAST THREE HOURS, OR IN LIEU

THEREOF TO BE IN THE AIR A

TOTAL OF AT LEAST FOUR HOURS.

(B) DURING TWO CONSECUTIVE CALENDAR 20 OR MORE FLIGHTS TOTALING AT

MONTHS, WHEN THE REQUIREMENTS OF LEAST SIX HOURS, OR IN LIEU

SUBPARAGRAPH (A) ABOVE HAVE NOT THEREOF TO BE IN THE AIR A

BEEN MET. TOTAL OF AT LEAST EIGHT HOURS.

(C) DURING THREE CONSECUTIVE CALENDAR 30 OR MORE FLIGHTS TOTALING AT

MONTHS, WHEN THE REQUIREMENTS OF LEAST NINE HOURS, OR IN LIEU

SUBPARAGRAPH (B) ABOVE HAVE NOT THEREOF TO BE IN THE AIR A

BEEN MET. TOTAL OF AT LEAST TWELVE HOURS.

PARAGRAPH 12 OF THE ABOVE EXECUTIVE ORDER PROVIDES:

A COMMANDING OFFICER SHALL SUSPEND FROM FLYING ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN UNDER HIS COMMAND WHO, IN HIS OPINION, IS UNFIT FOR FLYING, EXCEPT AS A RESULT OF AN AVIATION ACCIDENT. WHEN THE SUSPENSION IS FOR A MINOR ILLNESS OR INJURY NOT THE RESULT OF AN AVIATION ACCIDENT, THE SUSPENSION AND SUBSEQUENT REVOCATION THEREOF MAY BE ORDERED BY THE COMMANDING OFFICER OF THE PERSON CONCERNED WITHOUT REFERENCE TO HIGHER AUTHORITY. IN ALL OTHER CASES SUCH ACTION SHALL BE REPORTED WITH THE REASONS THEREFOR, FOR CONFIRMATION TO THE COMMANDING GENERAL OF THE ARMY AIR FORCES OR TO SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR PERSONNEL COMMISSIONED IN THE ARMY AIR CORPS OR ON DUTY WITH THE ARMY AIR FORCES, THE SECRETARY OF WAR OR SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR OTHER BRANCHES OF THE ARMY OR TO THE OFFICER WHO ISSUED THE ORDER REQUIRING THE PERSON CONCERNED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS FOR THE NAVY, MARINE CORPS AND COAST GUARD. THE CONFIRMATION OF SUCH ACTION SHALL HAVE THE EFFECT OF SUSPENDING THE ORDER TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AS TO THE PERSON CONCERNED FROM THE DATE SUCH SUSPENSION FROM FLYING WAS MADE. WHEN ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN SO SUSPENDED FROM FLYING BECOMES, IN THE OPINION OF HIS COMMANDING OFFICER, AGAIN FIT FOR FLYING, THE COMMANDING OFFICER SHALL REVOKE SUCH SUSPENSION FROM FLYING, AND SUCH ACTION SHALL BE REPORTED WITH REASONS THEREFOR, FOR CONFIRMATION TO THE AUTHORITY WHO CONFIRMED THE SUSPENSION FROM FLYING. THE CONFIRMATION OF SUCH REVOCATION SHALL HAVE THE EFFECT OF TERMINATING THE SUSPENSION OF THE PERSON CONCERNED FROM THE DATE OF SUCH REVOCATION BY HIS COMMANDING OFFICER. PROVIDED, THAT IN THE CASE OF SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY AND SUBSEQUENT REMOVAL THEREOF, SUCH SUSPENSION SHALL BE CONSIDERED AS NULLIFIED FROM ITS BEGINNING, AND THE PERSON CONCERNED SHALL BE ENTITLED TO INCREASED PAY FOR FLYING PROVIDED THE REQUIREMENTS OF PARAGRAPH 10 ABOVE ARE COMPLIED WITH.

THE EXECUTIVE ORDER CONSIDERED IN 8 COMP. GEN. 384 CONTAINED LANGUAGE SIMILAR TO THAT IN PARAGRAPH 12 OF EXECUTIVE ORDER 9195, SUPRA, RELATIVE TO REVOCATION OF SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY. THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, FORWARDED WITH YOUR LETTER, QUOTES FROM THE ABOVE DECISION AS FOLLOWS:

THE PURPOSE OF THE LANGUAGE IN THE EXECUTIVE ORDER NOW IN EFFECT, IT IS APPARENT, WAS TO WITHDRAW PERMISSION FROM THE OFFICER OR MAN TO MAKE FLIGHTS, BUT TO CONTINUE HIM ON FLYING STATUS IF HIS PHYSICAL CONDITION PERMITTED RESUMPTION OF FLIGHTS WITHIN THE THREE MONTHS' PERIOD, THUS ENTITLING HIM TO FLYING PAY FOR THE ENTIRE THREE MONTHS IF WITHIN THAT TIME HE MAKES THE FLIGHTS REQUIRED ENTITLING HIM TO PAY. THIS IS THE INTERPRETATION PLACED UPON THE ORDER BY THE NAVY DEPARTMENT. SEE 6 COMP. GEN. 857. WHERE THE SUSPENSION FROM FLYING EXCEEDS THREE MONTHS, THE OFFICER OR MAN, UNDER THE EXECUTIVE ORDER, HAS BEEN SUSPENDED FROM FLYING DUTY, AND THERE CAN BE NO RETROACTIVE NULLIFICATION OF SUSPENSION VALID WHEN MADE AND VALID DURING THE ENTIRE PERIOD IT WAS IN EFFECT. IN SUCH CASE THE OFFICER OR MAN IS ENTITLED TO FLYING PAY ONLY FROM DATE OF REPORTING FOR DUTY AFTER THE SUSPENSION FROM FLYING DUTY HAS BEEN REMOVED.

IN THE DECISION OF NOVEMBER 29, 1944, B-45495, IT WAS SAID:

IT IS PROVIDED IN THE ABOVE PARAGRAPH 12 THAT WHEN A SUSPENSION FROM FLYING, BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY, IS REVOKED, SUCH SUSPENSION SHALL BE CONSIDERED AS NULLIFIED FROM ITS BEGINNING. IN OTHER WORDS, UPON REVOCATION OF SUSPENSION UNDER SUCH CONDITIONS, THE RIGHT TO AVIATION PAY IS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE. THIS IS THE BASIS APPLICABLE IN THE PRESENT CASE.

WHILE THE DECISION OF NOVEMBER 29, 1944, CONTAINS GENERAL LANGUAGE AS TO THE RIGHT TO AVIATION PAY UPON REVOCATION OF A SUSPENSION FROM FLYING, IMPOSED BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY, THERE WAS NO INTENTION TO MODIFY RULES CONTAINED IN PRIOR HOLDINGS OF THIS OFFICE AS TO THE LIMITATION OF THE THREE MONTHS DURING WHICH, UNDER EFFECTIVE EXECUTIVE ORDERS, FLIGHT DEFICIENCIES MAY BE MADE UP. UPON REVOCATION OF A SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY, AS PROVIDED IN PARAGRAPH 12 OF EXECUTIVE ORDER 9195, THE RIGHT TO AVIATION PAY FOR THE PERIOD OF SUSPENSION IS FOR DETERMINATION UNDER THE PROVISIONS OF PARAGRAPH 10 OF SAID EXECUTIVE ORDER, PRESCRIBING A MAXIMUM PERIOD OF THREE MONTHS DURING WHICH FLIGHT DEFICIENCIES MAY BE MADE UP. SUCH PERIOD COMMENCES WITH THE MONTH IN WHICH DEFICIENCY OR FAILURE TO QUALIFY ARISES. 8 COMP. GEN. 384. IT FOLLOWS THAT THE EFFECT OF A REVOCATION OF SUSPENSION FROM FLYING, BY REASON OF SICKNESS OR INJURY IN LINE OF DUTY, IS DEPENDENT UPON WHETHER OR NOT SUCH REVOCATION OCCURS WITHIN A PERIOD OF THREE CALENDAR MONTHS BEGINNING WITH THE MONTH IN WHICH FLIGHT DEFICIENCY FIRST ARISES, WHETHER SUCH DEFICIENCY IS BY REASON OF THE SUSPENSION OR BY REASON OF FAILURE TO MAKE SUFFICIENT FLIGHTS. IF THE REVOCATION OCCURS WITHIN THE THREE-MONTH GRACE PERIOD SO DETERMINED, THE RIGHT TO AVIATION PAY IS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE; IF REVOCATION OCCURS AFTER THE EXPIRATION OF THE THREE-MONTH GRACE PERIOD, THE RIGHT TO AVIATION PAY FOR ANY PART OF THE PERIOD OF SUSPENSION IS LOST. THIS RULE IS FOR APPLICATION TO THE FIVE SPECIFIC CASES SET FORTH IN THE LETTER OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS AS TO THE RIGHT TO AVIATION PAY OF PERSONS UNDER FLIGHT ORDERS TEMPORARILY SUSPENDED FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY. IT WILL BE ASSUMED IN EACH CASE, FOR THE PURPOSE OF THIS DECISION, THAT THE FLIGHTS PERFORMED WERE OF SUFFICIENT DURATION UNDER THE PROVISIONS OF PARAGRAPH 10 OF EXECUTIVE ORDER 9195, THAT IS, THAT 10 FLIGHTS TOTAL AT LEAST THREE HOURS, ETC. THE CASES ARE SEPARATELY CONSIDERED BELOW:

CASE 1 FLIGHT REQUIREMENTS MET THROUGH JUNE (SUSPENDED FROM FLYING 15 JULY). FLIGHTS IN JULY (BEFORE SUSPENSION) ------------------------ ----- --- 10 FLIGHTS IN AUGUST ---------------------------------------- -------- -- 10 FLIGHTS IN SEPTEMBER (SUSPENSION REVOKED 5 OCT.) ------ ------------ 10 FLIGHTS IN OCTOBER (SUBSEQUENT TO REVOCATION OF SUSPENSION) --------- 25

FLIGHT REQUIREMENTS FOR A CALENDAR MONTH WERE MET IN JULY PRIOR TO SUSPENSION. HENCE, THE GRACE PERIOD BEGAN AUGUST 1 AND ENDED OCTOBER 31. THE SUSPENSION WAS REVOKED WITHIN THAT PERIOD AND THE RIGHT TO AVIATION PAY IS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE. FLIGHTS WERE MADE IN THE MONTHS OF AUGUST OR SEPTEMBER. FLIGHT DEFICIENCIES FOR SEPTEMBER, ALONE, COULD NOT BE MADE UP IN OCTOBER. A NEW GRACE PERIOD DOES NOT BEGIN WITH EACH SUCCESSIVE MONTH IN WHICH THERE IS A FAILURE TO MEET FLIGHT REQUIREMENTS. 4 COMP. GEN. 975. THEREFORE, IN ORDER TO MAKE UP DEFICIENCIES FOR AUGUST AND SEPTEMBER THE PERSON MUST HAVE MADE 30 FLIGHTS IN OCTOBER SUBSEQUENT TO REVOCATION. DURING JULY, PRIOR TO SUSPENSION, FLIGHT REQUIREMENTS FOR A FULL MONTH WERE MET; DURING OCTOBER, SUBSEQUENT TO REVOCATION, FLIGHT REQUIREMENTS FOR A FULL MONTH WERE MET.

IN THIS CASE AVIATION PAY WOULD BE PAYABLE FOR THE FULL MONTHS OF JULY AND OCTOBER.

CASE 2 FLIGHT REQUIREMENTS MET THROUGH JUNE (SUSPENDED FROM FLYING 15 JULY.) FLIGHTS IN JULY (BEFORE SUSPENSION) ------------------------ ----- --- 10 FLIGHTS IN AUGUST ---------------------------------------- -------- -- 10 FLIGHTS IN SEPTEMBER ---------------------------------- ------------ - 10 FLIGHTS IN OCTOBER (SUSPENSION REVOKED 5 NOV.) ----- --------------- 10 FLIGHTS IN NOVEMBER (SUBSEQUENT TO REVOCATION OF SUSPENSION) -------- 40

THE GRACE PERIOD BEGAN AUGUST 1 AND ENDED OCTOBER 31. THE SUSPENSION WAS NOT REVOKED WITHIN THIS PERIOD. HENCE, THE RIGHT TO MAKE UP FLIGHT DEFICIENCIES FOR ANY PART OF THE PERIOD OF SUSPENSION IS LOST. THE PERSON WOULD BE ENTITLED TO AVIATION PAY FOR THE PERIODS JULY 1 TO 14 AND NOVEMBER 5 TO 30.

CASE 3 FLIGHT REQUIREMENTS MET THROUGH JUNE. FLIGHTS IN JULY (SUSPENDED FROM FLYING 15 AUG.) -------------------- 8 FLIGHTS IN AUGUST (BEFORE SUSPENSION) (SUSPENSION REVOKED 25 AUGUST) 7 FLIGHTS IN AUGUST (SUBSEQUENT TO REVOCATION OF SUSPENSION) ---------- 2 FLIGHTS IN SEPTEMBER ----------- ------------------------------------- 12

THE GRACE PERIOD BEGAN JULY 1 AND ENDED SEPTEMBER 30. THE SUSPENSION WAS REVOKED WITHIN THIS PERIOD AND THE RIGHT TO AVIATION PAY IS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE. FLIGHT REQUIREMENTS WERE NOT MET DURING JULY OR AUGUST AND FLIGHT DEFICIENCIES FOR THESE TWO MONTHS WERE NOT MADE UP IN SEPTEMBER. NO AVIATION PAY WOULD ACCRUE FOR JULY AND AUGUST. COMPARE CASE 1, SUPRA. FLIGHT REQUIREMENTS FOR SEPTEMBER WERE MET. AVIATION PAY WOULD BE PAYABLE FOR SEPTEMBER, ONLY.

CASE 4 FLIGHT REQUIREMENTS MET THROUGH JUNE. FLIGHTS IN JULY (SUSPENDED FROM FLYING 15 AUG.) -------------------- 1 FLIGHTS IN AUGUST (BEFORE SUSPENSION) (SUSPENSION REVOKED 25 AUG.) - 8 FLIGHTS IN AUGUST (SUBSEQUENT TO REVOCATION OF SUSPENSION) ---------- 2 FLIGHTS IN SEPTEMBER ----------- ------------------------------------- 12 THE GRACE PERIOD BEGAN JULY 1 AND ENDED SEPTEMBER 30. THE SUSPENSION WAS REVOKED WITHIN THIS PERIOD AND THE RIGHT TO AVIATION PAY IS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE. THE DEFICIENCY FOR JULY WAS NOT MADE UP IN AUGUST. FLIGHT REQUIREMENTS FOR AUGUST WERE MET DURING AUGUST AND SUCH REQUIREMENTS FOR SEPTEMBER WERE MET DURING SEPTEMBER, BUT THE REQUIREMENTS FOR THE THREE-MONTH PERIOD, AT LEAST 30 FLIGHTS, WERE NOT MET BY SEPTEMBER 30. THE PERSON WOULD BE ENTITLED TO AVIATION PAY FOR AUGUST AND SEPTEMBER.

CASE 5 FLIGHT REQUIREMENTS MET THROUGH JUNE (SUSPENDED FROM FLYING 15 JULY.) FLIGHTS IN JULY (BEFORE SUSPENSION) ------------------------ ----- --- 8 FLIGHTS IN AUGUST ---------------------------------------- --------- - 10 FLIGHTS IN SEPTEMBER (SUSPENSION REVOKED 5 OCT.) ------ ------------ 10 FLIGHTS IN OCTOBER (SUBSEQUENT TO REVOCATION OF SUSPENSION) --------- 12

THE GRACE PERIOD BEGAN JULY 1 AND ENDED SEPTEMBER 30. THE SUSPENSION WAS NOT REVOKED WITHIN THIS PERIOD. THE RIGHT TO MAKE UP FLIGHT DEFICIENCIES FOR ANY PART OF THE PERIOD OF SUSPENSION IS LOST. THE PERSON WOULD BE ENTITLED TO AVIATION PAY JULY 1 TO 14 AND OCTOBER 5 TO 31. COMPARE CASE 2, SUPRA. ..END :