B-92739, MARCH 20, 1950, 29 COMP. GEN. 374

B-92739: Mar 20, 1950

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NONFLYING OFFICERS WHO QUALIFY FOR INCREASED FLYING PAY DURING THE FISCAL YEAR 1950 MAY NOT BE PAID IN EXCESS OF SAID LIMITATION REGARDLESS OF WHETHER THEY ARE DESIGNATED AS CREW MEMBERS OR NONCREW MEMBERS. 1950: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31. YOU STATE THAT PURSUANT TO THE ABOVE PROVISIONS OF LAW YOU HAVE DETERMINED THAT TECHNICAL OBSERVERS. NAVAL FLIGHT NURSES ARE NOT CREW MEMBERS AND. YOU REQUEST DECISION AS TO WHETHER OFFICERS PERFORMING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS PURSUANT TO COMPETENT ORDERS WHO ARE DESIGNATED AS NONCREW MEMBERS ARE TO BE CREDITED. THE SAID PROVISIONS OF THE APPROPRIATION ACT ARE CONTROLLING IN DETERMINING THE RIGHT TO AND THE RATE OF INCREASED PAY TO WHICH SUCH OFFICERS ARE ENTITLED ON AND AFTER OCTOBER 1.

B-92739, MARCH 20, 1950, 29 COMP. GEN. 374

PAY - AVIATION DUTY - RATE OF FLYING PAY FOR NONFLYING OFFICERS IN VIEW OF THE LIMITATION OF $720 PER ANNUM ON INCREASED PAY OF "NONFLYING OFFICERS" IMPOSED BY SECTION 604 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT, 1950, NONFLYING OFFICERS WHO QUALIFY FOR INCREASED FLYING PAY DURING THE FISCAL YEAR 1950 MAY NOT BE PAID IN EXCESS OF SAID LIMITATION REGARDLESS OF WHETHER THEY ARE DESIGNATED AS CREW MEMBERS OR NONCREW MEMBERS, EVEN THOUGH SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES FOR INCENTIVE PAY OF $100 PER MONTH FOR NONCREW OFFICERS QUALIFYING FOR FLYING PAY THEREUNDER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 20, 1950:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1950, WHEREIN YOU REFER TO SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, SUBSECTION (A) OF WHICH, 63 STAT. 810, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES:

(1) DUTY AS A CREW MEMBER AS DETERMINED BY THE SECRETARY CONCERNED, INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT;

(3) DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS NOT AS A CREW MEMBER PURSUANT TO PART (1) OF THIS SUBSECTION;

SUBSECTION (B) OF SECTION 204, 63 STAT. 810, SETS UP A GRADUATED SCALE OF MONTHLY RATES OF INCENTIVE PAY FOR MEMBERS OF THE UNIFORMED SERVICES WHO PERFORM HAZARDOUS DUTY AS PRESCRIBED IN PART (1) OF SUBSECTION (A) AND QUALIFY FOR THE INCENTIVE PAY AUTHORIZED PURSUANT TO THE SAID SUBSECTION. SUBSECTION (C), 63 STAT. 810, PROVIDES THAT FOR THE PERFORMANCE OF HAZARDOUS DUTY AS PRESCRIBED IN PART (3) OF SUBSECTION (A), BY OFFICERS AND ENLISTED MEN QUALIFYING FOR THE INCENTIVE PAY AUTHORIZED PURSUANT TO THE SAID SUBSECTION, OFFICERS SHALL BE ENTITLED TO BE PAID AT THE RATE OF $100 PER MONTH, AND ENLISTED PERSONS SHALL BE ENTITLED TO BE PAID AT THE RATE OF $50 PER MONTH.

YOU STATE THAT PURSUANT TO THE ABOVE PROVISIONS OF LAW YOU HAVE DETERMINED THAT TECHNICAL OBSERVERS, AVIATION MEDICAL EXAMINERS, STUDENT NAVAL FLIGHT SURGEONS, AND NAVAL FLIGHT NURSES ARE NOT CREW MEMBERS AND, IN THAT CONNECTION, YOU REFER TO SECTION 604 OF THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT, 1950, PUBLIC LAW 434, APPROVED OCTOBER 29, 1949, 63 STAT. 1017, WHICH PROVIDES, AS FOLLOWS:

THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL NOT BE AVAILABLE FOR INCREASED PAY FOR FLIGHTS BY NONFLYING OFFICERS AT A RATE IN EXCESS OF $720 PER ANNUM, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH OFFICERS, AND SUCH NONFLYING OFFICERS SHALL BE ENTITLED TO SUCH RATE OF INCREASE BY PERFORMING THREE OR MORE FLIGHTS OF A TOTAL DURATION OF NOT LESS THAN FOUR HOURS WITHIN EACH NINETY-DAY PERIOD, PURSUANT TO ORDERS OF COMPETENT AUTHORITY, WITHOUT REGARD TO THE DURATION OF EACH FLIGHT.

SINCE IT WOULD APPEAR EVIDENT THAT THE INCENTIVE PAY REFERRED TO ABOVE WOULD CONSTITUTE INCREASED PAY FOR FLIGHTS WITHIN THE PURVIEW OF THE ABOVE APPROPRIATION ACT PROVISIONS, YOU REQUEST DECISION AS TO WHETHER OFFICERS PERFORMING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS PURSUANT TO COMPETENT ORDERS WHO ARE DESIGNATED AS NONCREW MEMBERS ARE TO BE CREDITED, IF OTHERWISE ENTITLED THERETO, WITH INCENTIVE PAY AT THE RATE OF $100 PER MONTH ON AND AFTER OCTOBER 1, 1949, OR WHETHER THE FLIGHT REQUIREMENTS ESTABLISHED IN, AND THE LIMITATION OF $720 PER ANNUM IMPOSED BY, THE SAID PROVISIONS OF THE APPROPRIATION ACT ARE CONTROLLING IN DETERMINING THE RIGHT TO AND THE RATE OF INCREASED PAY TO WHICH SUCH OFFICERS ARE ENTITLED ON AND AFTER OCTOBER 1, 1949.

IT WILL BE NOTED THAT THE RESTRICTION ON FLYING PAY CONTAINED IN THE 1950 APPROPRIATION ACT IS DIRECTED TO "NONFLYING OFFICERS" WHICH TERM HAS A SEPARATE AND DISTINCT MEANING OF ITS OWN. SEE, FOR EXAMPLE, 24 COMP. GEN. 636, AND 25 ID. 648. THERE HAS BEEN NO CHANGE AS TO THE CLASS OF OFFICERS TO WHICH THE TERM "NONFLYING OFFICERS" REFERS AND THE MERE FACT THAT A PARTICULAR OFFICER MAY BE DESIGNATED A NONCREW MEMBER DOES NOT NECESSARILY MAKE HIM A NONFLYING OFFICER NOR WOULD THE FACT THAT HE MAY BE DESIGNATED A CREW MEMBER NECESSARILY MAKE HIM A FLYING OFFICER.

AS TO THOSE OFFICERS WHO ACTUALLY ARE SO-CALLED NONFLYING OFFICERS, THE SPECIAL PROVISIONS OF THE 1950 APPROPRIATION ACT, QUOTED ABOVE, CLEARLY ARE INCONSISTENT AND IN CONFLICT WITH THE GENERAL PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949. HOWEVER, THE RULE IS WELL SETTLED THAT WHERE THERE IS A GENERAL AND A SPECIAL PROVISION IN THE SAME OR DIFFERENT STATUS, IN APPARENT CONFLICT, THE SPECIAL PROVISION QUALIFIES THE GENERAL PROVISION AND SUPPLIES AN EXCEPTION THERETO. MACEVOY V. UNITED STATES, 322 U.S. 102; SANFORD V. SANFORD, 286 F. 777. GIVING EFFECT TO THE SPECIAL PROVISIONS OF THE APPROPRIATION ACT, THE LIMITATION OF $720 PER ANNUM FOR INCREASED PAY FOR FLYING WOULD CONTINUE TO BE APPLICABLE TO "NONFLYING OFFICERS" DURING THE FISCAL YEAR 1950 AND SUCH INCREASED PAY IS PAYABLE IF THE FLIGHT REQUIREMENTS SET FORTH IN THE APPROPRIATION ACT ARE MET, PROVIDED SUCH OFFICERS ARE OTHERWISE ENTITLED THERETO. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.