B-70307, JAN 23, 1948

B-70307, JAN 23, 1948

PRECIS-UNAVAILABLE

COLONEL CARL WITCHER, F.D., U.S. ARMY:

THERE HAS BEEN RECEIVED, BY INDORSEMENT OF THE CHIEF OF FINANCE, YOUR LETTER OF SEPTEMBER 10, 1947, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF MAJOR CLARENCE P. BUOTE, AIR CORPS, FOR FLYING PAY FOR THE PERIOD MAY 1 TO 31, 1947.

PERSONNEL ORDERS NO. 82, HEADQUARTERS, ARMY AIR FORCES, WASHINGTON, DATED APRIL 25, 1947, ARE IN PERTINENT PART AS FOLLOWS:

"2. DETERMINATION HAVING BEEN MADE THAT MAINTENANCE OF THE PRIMARY SKILL DENOTED BY THE AERONAUTICAL RATING HELD BY THE FOLLOWING-NAMED OFFICERS IS NOT NECESSARY IN THE INTEREST OF THE MILITARY SERVICE, ORDERS WHICH DETAILED THEM TO FLYING DUTY ARE HEREBY RESCINDED, EFFECTIVE 1 MAY 1947.

"MAJOR CLARENCE P. BUOTE, 0-384767, AIR CORPS (INF) * * ** *

"BY COMMAND OF GENERAL SPAATZ:

F. L. ANDERSON

MAJOR GENERAL, U.S.A.

AC/AS-1"

C O P Y

THE WORDING OF THE ABOVE ORDERS SUGGESTS THAT THEY WERE PROMULGATED AS A REQUIREMENT UNDER THE ACT OF FEBRUARY 18, 1946, 60 STAT. 20, WHICH IS IN MATERIAL PART AS FOLLOWS:

"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: ***."

PARAGRAPH 2 OF PERSONNEL ORDERS NO. 153, HEADQUARTERS, ARMY AIR FORCES, WASHINGTON, DATED AUGUST 6, 1947, READS AS FOLLOWS:

"2. PARAGRAPH 2, PERSONNEL ORDERS NO. 82, THIS HEADQUARTERS, DATED 25 APRIL 1947, IS HEREBY AMENDED TO SHOW THE EFFECTIVE DATE AS 1 JUNE 1947, INSTEAD OF 1 MAY 1947. THIS IS TO CORRECT AN ADMINISTRATIVE ERROR MADE IN THE PUBLICATION OF PARAGRAPH 2, PERSONNEL ORDERS NO. 82, 25 APRIL 1947, AND TO CONFORM WITH THE VERBAL ORDERS OF THE COMMANDING GENERAL, ARMY AIR FORCES, DIRECTING THAT THE OFFICERS LISTED THEREIN BE RELIEVED FROM FLYING DUTY 1 JUNE 1947.

"BY COMMAND OF GENERAL SPAATZ:

JOHN E UPSTON

BRIGADIER GENERAL, USA

ACTING AC/AS-1

THE ORDERS OF APRIL 25, 1947, DO NOT APPEAR TO HAVE BEEN PROMULGATED IN CONFIRMATION OF VERBAL ORDERS AS A RESULT OF AN EXIGENCY OF THE SERVICE WHICH DID NOT PERMIT THE ISSUANCE INITIALLY OF WRITTEN ORDERS, AND HENCE IT IS NOT CLEAR FROM THE WORDING OF THE ORDERS OF AUGUST 6, 1947, WHETHER REFERENCE TO THE "VERBAL ORDER" DIRECTING THAT THE OFFICERS LISTED THEREIN BE RELIEVED FROM FLYING DUTY 1 JUNE 1947," WAS INTENDED TO CORRECT THE EFFECTIVE DATE OF A VERBAL ORDER WHICH PRECEDED PROMULGATION OF THE ORDERS OF APRIL 25, 1947, OR WHETHER THERE WAS A VERBAL ORDER SUBSEQUENTLY ISSUED UPON WHICH THE ORDERS OF AUGUST 6, 1947, WERE PUBLISHED, ATTEMPTING RETROACTIVELY TO CHANGE TO A LATER DATE THE EFFECTIVE DATE OF AN ORDER ALREADY EXECUTED.

UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, NO ADDITIONAL PAY FOR FLYING DUTY IS AUTHORIZED OR PAYABLE UNLESS THERE BY AN EXISTING LAWFUL ORDER DETAILING AN OFFICER TO DUTY INVOLVING FLYING, COUPLED WITH FLIGHTS REQUIRED BY APPLICABLE EXECUTIVE ORDERS. ON THE PRESENT RECORD IT APPEARS THAT THE ONLY EXISTING ORDERS CURRENTLY EXTANT DURING MAY, 1947, WERE THOSE DATED APRIL 25, 1947, OF WHICH, PRESUMABLY, MAJOR BOUTE HAD NOTICE, AND AS A RESULT OF WHICH HIS ORDERS TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS HAD BEEN RESCINDED EFFECTIVE MAY 1, 1947. THE PERFORMANCE OF FLIGHTS BY THE OFFICER SUBSEQUENT TO THE EFFECTIVE DATE OF SUCH REVOCATION DOES NOT ENTITLE HIM TO INCREASED PAY FOR FLYING DURING WHICH NO DETAIL WAS IN EFFECT. SEE 3 COMP.GEN. 725 AND CASES THEREIN CITED; ALSO DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912-1940, PAGES 668, 670, 671. ACCORDINGLY, YOU ARE ADVISED THAT ON THE PRESENT RECORD PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.