B-53696, APRIL 4, 1946, 25 COMP. GEN. 692

B-53696: Apr 4, 1946

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PAY - AVIATION DUTY - DURING PERIOD OF ASSIGNMENT TO SEPARATION CENTERS THE RIGHT OF ARMY FLYING OFFICERS TO AVIATION PAY OTHERWISE DUE UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 AND EXECUTIVE ORDER NO. 9195 ISSUED THEREUNDER IS NOT AFFECTED BY AN ASSIGNMENT TO A SEPARATION CENTER. REGARDLESS OF WHETHER PAYMENT FOR SUCH PRIOR PERIODS ACTUALLY WERE MADE BEFORE OR AFTER THAT DATE OR AFTER FEBRUARY 18. THAT ARMY FLYING OFFICERS ORDERED TO SEPARATION CENTERS INCIDENT TO SEPARATION FROM THE SERVICE ARE TO BE CONSIDERED. WILL BE VIEWED AS IN ACCORDANCE WITH THE LAW AND REGULATIONS THEN IN EFFECT. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION PUBLISHED IN 3 COMP. IN WHICH IT WAS HELD THAT.

B-53696, APRIL 4, 1946, 25 COMP. GEN. 692

PAY - AVIATION DUTY - DURING PERIOD OF ASSIGNMENT TO SEPARATION CENTERS THE RIGHT OF ARMY FLYING OFFICERS TO AVIATION PAY OTHERWISE DUE UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 AND EXECUTIVE ORDER NO. 9195 ISSUED THEREUNDER IS NOT AFFECTED BY AN ASSIGNMENT TO A SEPARATION CENTER--- WHERE THE OFFICERS ACTUALLY REMAIN IN DUTY STATUS INVOLVING FLYING PRIOR TO GOING ON TERMINAL LEAVE--- DURING PERIODS PRIOR TO DECEMBER 1, 1945, THE EFFECTIVE DATE OF THE RESTRICTIVE FLYING PAY PROVISIONS OF THE ACT OF FEBRUARY 18, 1946, REGARDLESS OF WHETHER PAYMENT FOR SUCH PRIOR PERIODS ACTUALLY WERE MADE BEFORE OR AFTER THAT DATE OR AFTER FEBRUARY 18, 1946. IN THE ABSENCE OF A DIRECTIVE OF THE SECRETARY OF WAR ISSUED PURSUANT TO THE ACT OF FEBRUARY 18, 1945, IMPOSING FLYING PAY RESTRICTIONS DURING THE PERIOD FROM DECEMBER 1, 1945, TO JUNE 30, 1946, THAT ARMY FLYING OFFICERS ORDERED TO SEPARATION CENTERS INCIDENT TO SEPARATION FROM THE SERVICE ARE TO BE CONSIDERED, FOR FLYING PAY PURPOSES, AS ASSIGNED TOY INVOLVING "AIR ACTIVITIES" WITHIN THE MEANING OF SAID ACT, AVIATION PAY NOT ACCRUE TO SUCH OFFICERS DURING SAID PERIOD; HOWEVER, PAYMENTS ACTUALLY MADE BETWEEN DECEMBER 1, 1945, AND FEBRUARY 18, 1946, WILL BE VIEWED AS IN ACCORDANCE WITH THE LAW AND REGULATIONS THEN IN EFFECT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 4, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 3, 1945, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION PUBLISHED IN 3 COMP. GEN. 671, IN WHICH IT WAS HELD THAT, WHERE AN OFFICER, IN A DUTY STATUS INVOLVING FLYING, IS GRANTED A LEAVE OF ABSENCE PRIOR TO HIS DISCHARGE FROM THE SERVICE, HE IS NOT ENTITLED TO THE INCREASED PAY FOR FLIGHT DUTY WHILE ON THE SAID LEAVE OF ABSENCE, AS THE GRANTING OF LEAVE UNDER SUCH CONDITIONS CONTEMPLATED NO RETURN TO DUTY AND HAD THE EFFECT OF TERMINATING HIS ASSIGNMENT TO FLIGHT DUTY.

IN VIEW OF THE ABOVE DECISION AND NUMEROUS GENERAL ACCOUNTING OFFICE SETTLEMENTS OF INDIVIDUAL CLAIMS, IT WAS ADMINISTRATIVELY DETERMINED AND INSTRUCTIONS WERE ISSUED TO THE EFFECT THAT AN ORDER REQUIRING AN OFFICER TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, IF NOT SOONER TERMINATED, TERMINATES ON THE DAY PRIOR TO THE DAY ON WHICH THE OFFICER ENTERS A TERMINAL LEAVE STATUS, AS THE GRANTING OF LEAVE IN SUCH CASE CONTEMPLATES NO RETURN TO DUTY AND HAS THE EFFECT OF TERMINATING HIS ASSIGNMENT TO FLYING DUTY. THESE INSTRUCTIONS ARE NOW PUBLISHED IN PARAGRAPH 5.1, AR 35-1480, CHANGES NO. 5, DATED 15 AUGUST 1945. HOWEVER, IT HAS NOW COME TO THE ATTENTION OF THIS OFFICE THAT THE GENERAL ACCOUNTING OFFICE HAS SUSPENDED CERTAIN PAYMENTS OF FLYING PAY FROM THE DATE THE OFFICER IS ASSIGNED TO A SEPARATION CENTER, RATHER THAN FROM THE DATE OF ENTRY UPON TERMINAL LEAVE.

YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER AN ORDER REQUIRING AN OFFICER TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, IF NOT SOONER TERMINATED, TERMINATES ON THE DAY PRIOR TO HIS DEPARTURE FROM A SEPARATION CENTER (OR, IN THE EVENT THAT HE DOES NOT GO TO A SEPARATION CENTER, FROM HIS LAST DUTY STATION) TO GO ON TERMINAL LEAVE, OR FROM THE DATE THE OFFICER IS ASSIGNED TO A SEPARATION CENTER.

PAYMENTS OF FLYING PAY HAVE BEEN MADE BY ARMY DISBURSING OFFICERS TO A NUMBER OF OFFICERS UPON RELIEF FROM ACTIVE DUTY IN ACCORDANCE WITH THE INSTRUCTIONS ISSUED AS SET FORTH ABOVE, BASED ON YOUR PRIOR DECISION. IS OBVIOUS THAT REFUNDMENT MAY NOT BE HAD IN MANY CASES, PARTICULARLY WHERE PAYEES ARE NOW OUT OF THE SERVICE, AND IN ANY EVENT IT IS EVIDENT THAT HARDSHIPS WILL OCCUR IF COLLECTIONS ARE ATTEMPTED IN ALL SUCH CASES, IN VIEW OF THE GOOD FAITH OF THE RECIPIENTS OF THE PAYMENTS. IT IS THEREFORE REQUESTED THAT, IN THE EVENT IT IS HELD THAT PAYMENTS HAVE BEEN MADE INCORRECTLY, YOUR DECISION, IF POSSIBLE, BE MADE EFFECTIVE ONLY AS TO PAYMENTS MADE FROM AND AFTER THE DATE OF THE DECISION.

SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, PROVIDES IN 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 * * * .

EXECUTIVE ORDER 9195, JULY 7, 1942, WAS ISSUED PURSUANT TO THE ABOVE SECTION AND PROVIDES, INTER ALIA, THAT ORDERS REQUIRING OFFICERS COMMISSIONED IN THE AIR CORPS OR ON DUTY WITH THE ARMY AIR FORCES TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS SHALL BE ISSUED BY THE COMMANDING GENERAL OF THE ARMY AIR FORCES OR BY SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE, AND SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH COMMISSION OR DUTY EXCEPT FOR SUSPENSIONS BY REASON OF UNFITNESS FOR FLYING.

THE NEXT TO LAST PARAGRAPH OF THE FIRST SUPPLEMENTAL SURPLUS APPROPRIATION RESCISSION ACT, 1946, PUBLIC LAW 301, APPROVED FEBRUARY 18, 1946, 60 STAT. 20, PROVIDES, IN PART:

EFFECTIVE DECEMBER 1, 1945, NO MILITARY OR NAVAL PERSONNEL SHALL RECEIVE DURING THE REMAINDER OF THE CURRENT FISCAL YEAR AVIATION PAY UNLESS THE PERSON AFFECTED IS ASSIGNED TO DUTY ON AIR ACTIVITIES PRESCRIBED BY THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY AS REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS, OR IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IN ORDER TO CONTINUE HIS FITNESS FOR HIS PRIMARY TECHNICAL SKILL * * *.

IT REASONABLY APPEARS THAT PRIOR TO DECEMBER 1, 1945, THE EFFECTIVE DATE OF THE RESTRICTIVE PROVISION IN THE ABOVE ACT, OFFICERS WERE NOT PRECLUDED FROM RECEIVING AVIATION PAY BY REASON OF BEING ASSIGNED TO A SEPARATION CENTER, SINCE THEY ACTUALLY REMAINED ON DUTY DURING SUCH ASSIGNMENT PRIOR TO GOING ON TERMINAL LEAVE. CF. 3 COMP. GEN. 671. ACCORDINGLY, NO QUESTION WILL BE RAISED BY THIS OFFICE AS TO THE RIGHT TO SUCH PAY, IF OTHERWISE DUE, DURING PERIODS OF SUCH ASSIGNMENT PRIOR TO DECEMBER 1, 1945, REGARDLESS OF WHETHER PAYMENT FOR SUCH PRIOR PERIOD ACTUALLY WAS MADE BEFORE OR AFTER THAT DATE OR BEFORE OR AFTER THE ACT OF FEBRUARY 18, 1946.

THIS OFFICE HAS NOT BEEN ADVISED THAT THE SECRETARY OF WAR HAS ISSUED PURSUANT TO THE SAID ACT OF FEBRUARY 18, 1946, ANY DIRECTIVE PRESCRIBING THE "AIR ACTIVITIES" WHICH REQUIRE REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS. IT MAY BE OBSERVED, HOWEVER, THAT IT DOES NOT APPEAR THAT AN ARMY OFFICER WHILE ORDERED OR ASSIGNED TO A SEPARATION CENTER FOR THE PURPOSE OF SEPARATION FROM THE SERVICE REASONABLY COULD BE CONSIDERED AS ASSIGNED TO DUTY ON SUCH AIR ACTIVITIES. NOR DOES IT APPEAR THAT AN OFFICER SO ORDERED OR ASSIGNED TO A SEPARATION CENTER WOULD BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IN ORDER TO CONTINUE HIS FITNESS FOR HIS PRIMARY TECHNICAL SKILL. BE THAT AS IT MAY, IT IS EVIDENT, IN THE ABSENCE OF ANY SUCH EXPRESS PRESCRIPTION BY THE SECRETARY OF WAR, THAT ON AND AFTER DECEMBER 1, 1945, THE EFFECTIVE DATE OF THE RESTRICTIVE PROVISION IN THE ACT OF FEBRUARY 18, 1946, SUPRA, AVIATION PAY DOES NOT ACCRUE DURING THE REMAINDER OF THE PRESENT FISCAL YEAR TO AN ARMY OFFICER ASSIGNED TO A SEPARATION CENTER INCIDENT TO HIS DISCHARGE OR RELIEF FROM ACTIVE DUTY. HOWEVER, SINCE ANY PAYMENTS ACTUALLY MADE PRIOR TO FEBRUARY 18, 1946, OF AVIATION PAY FOR PERIODS OF ASSIGNMENT AT SEPARATION CENTERS SUBSEQUENT TO NOVEMBER 30, 1945, IF OTHERWISE CORRECT, ARE TO BE VIEWED AS IN ACCORDANCE WITH THE LAW AND REGULATIONS THEN IN EFFECT, THIS OFFICE WILL NOT BE REQUIRED TO QUESTION SUCH PAYMENTS IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED. CF. 22 COMP. GEN. 548, 555. BUT, OF COURSE, AS ANY SUCH PAYMENTS MADE AFTER FEBRUARY 18, 1946, FOR PERIODS AFTER NOVEMBER 30, 1945, DURING THE PRESENT FISCAL YEAR, ARE TO BE VIEWED AS CONTRARY TO THE ACT OF FEBRUARY 18, 1946, IN THE ABSENCE OF A PRESCRIPTION BY THE SECRETARY OF WAR PURSUANT TO THAT ACT THAT THE DUTY INVOLVED IS DUTY ON AIR ACTIVITIES REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS, THERE WOULD APPEAR NO BASIS TO ALLOW CREDIT THEREFOR IN THE ACCOUNTS OF THE DISBURSING OFFICERS.