AUGUST 11, 1921, 1 COMP. GEN. 67

AUGUST 11, 1921, 1 COMP. GEN. 67

ARMY OFFICER PERFORMING AERIAL FLIGHTS THE PERFORMANCE OF AERIAL FLIGHTS BY ASSIGNMENT FROM A SUBORDINATE OFFICER DOES NOT ENTITLE AN OFFICER TO THE INCREASED PAY FOR FLYING DUTY AS PROVIDED BY ACTS OF JUNE 3, 1916, 39 STAT., 175, AND JULY 24, 1917, 40 STAT., 245, WHEN NO ORDERS ASSIGNING HIM TO DUTY REQUIRING REGULAR AND FREQUENT AERIAL FLIGHTS HAVE BEEN ISSUED BY A COMPETENT OFFICIAL OF THE WAR DEPARTMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 11, 1921:

EUGENE F. WERMUTH, FORMERLY A FIRST LIEUTENANT A.S., S.O.R.C., UNITED STATES ARMY, APPLIED AUGUST 1, 1921, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING BY SETTLEMENT NO. 740643, DATED MARCH 1, 1921, HIS CLAIM FOR FLYING PAY, JANUARY TO SEPTEMBER, 1918 (EXACT DATES NOT INDICATED), WHILE ON DUTY WITH THE FOURTH BALLOON COMPANY IN FRANCE.

THE COMMANDING OFFICER OF THE FOURTH BALLOON COMPANY REPORTED FEBRUARY 10, 1920, AS FOLLOWS:

1. THE RETAINED OVERSEAS RECORDS OF THE 4TH BALLOON COMPANY SHOW THAT LIEUT. EUGENE F. WERMUTH WAS A MEMBER OF THIS ORGANIZATION, KNOWN IN ITS INCEPTION AS COMPANY "D," 2ND BALLOON SQUADRON, AND LATER AS THE 4TH BALLOON COMPANY, FROM FEBRUARY 12, 1918, BEING ASSIGNED BY PARAGRAPH 17 SPECIAL ORDERS 33, HEADQUARTERS, AIR SERVICE, L. OF C., A.E.F., DATED FEBRUARY 12, 1918. A LETTER FROM 1ST LIEUT. C. E. SMITH, A.S.A., COMMANDING OFFICER OF THE COMPANY, DATED FEBRUARY 2, 1919, STATES THAT LIEUT. WERMUTH WAS TRANSFERRED FROM THE COMPANY JULY 28, 1918, TO THE U.S. BALLOON SCHOOL, CAMP DE SOUGE, GIRONDE.

NO ACTUAL ORDERS PLACING LIEUT. WERMUTH ON FLYING STATUS APPEAR AMONG THE RECORDS OF THIS ORGANIZATION; HOWEVER, COPIES OF SEVERAL REPORTS RENDERED TO THE C.A.S., A.E.F. (BIMONTHLY) (SEMIMONTHLY?), SHOW LIEUT. WERMUTH AS HAVING A TOTAL OF 10 HOURS AND 3 MINUTES FLYING TIME IN THE AIR. THESE REPORTS INCLUDE THE TIME FROM MARCH TO JUNE, 1918. FURTHER REPORTS NOT FOUND.

3. COPIES OF ALL OTHER DATA BEARING ON LIEUT. WERMUTH, FOUND IN THE OVERSEAS RECORDS OF THIS COMPANY ARE ENCLOSED.

ATTACHED TO THIS INDORSEMENT ARE CERTIFIED COPIES OF REPORTS DATED MARCH 15, 1918 (FOR THE PERIOD SUBSEQUENT TO MARCH 6, 1918), APRIL 1, MAY 1, MAY 15, AND JUNE 1, AND A CERTIFIED COPY OF A REPORT MADE TO THE COMMANDING OFFICER OF THE SECOND BALLOON SQUADRON JUNE 24, 1918, BY THE COMMANDING OFFICER OF COMPANY D OF THAT SQUADRON, SUBMITTING "THE NAMES OF OFFICERS OF THIS COMPANY THAT ARE ON DUTY REQUIRING THEM TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS," AMONG WHICH IS THE NAME OF THE CLAIMANT.

THE AUDITOR DISALLOWED THE CLAIM BECAUSE "IN VIEW OF THE FACT THAT NO ORDERS WERE ISSUED PLACING THE OFFICER ON A FLYING STATUS AND ASSIGNED TO DUTY THIS OFFICE HAS NO AUTHORITY TO MAKE PAYMENT OVER ABOVE PERIOD" (MARCH 6 TO JUNE 24, 1918).

THE ACT OF JUNE 3, 1916, 39 STAT., 175, PROVIDES:

EACH AVIATION OFFICER AUTHORIZED BY THIS ACT SHALL, WHILE ON DUTY THAT REQUIRES HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS RECEIVE AN INCREASE OF TWENTY-FIVE PERCENTUM IN THE PAY OF HIS GRADE AND THE LENGTH OF SERVICE UNDER HIS COMMISSION. * * *.

THE ACT OF JULY 24, 1917, 40 STAT., 245, PROVIDES:

ANY OFFICER ATTACHED TO THE AVIATION SECTION OF THE SIGNAL CORPS FOR ANY MILITARY DUTY REQUIRING HIM TO MAKE REGULAR AND FREQUENT FLIGHTS SHALL RECEIVE AN INCREASE OF TWENTY-FIVE PERCENTUM OF THE PAY OF HIS GRADE AND LENGTH OF SERVICE UNDER HIS COMMISSION.

PARAGRAPH 1269 1/2, ARMY REGULATIONS, 1913, IS IN PART AS FOLLOWS:

AVIATION OFFICERS * * * MAY BE ASSIGNED TO DUTY REQUIRING THEM TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS BY THE COMMANDING OFFICER OF THE AVIATION STATION, CAMP, SCHOOL, FIELD, POST, OR AERONAUTICAL ORGANIZATION IN THE FIELD TO WHICH THE OFFICER MAY BE ASSIGNED. NO OFFICER WILL BE CONTINUED ON SUCH DUTY EXCEPT AS AUTHORIZED BY THE ACTS OF CONGRESS OF JULY 18, 1914, JUNE 3, 1916, AND JULY 24, 1917.

CLAIMANT HAS SUBMITTED A MIMEOGRAPHED DOCUMENT READING AS FOLLOWS:

G.H.Q., AMERICAN EXPEDITIONARY FORCES

(AIR SERVICE),

JANUARY 26, 1918. MEMORANDUM: TO COMMANDING OFFICERS OF ALL AIR SERVICE UNITS.

THE COMMANDER-IN-CHIEF HAS RECOMMENDED TO THE WAR DEPARTMENT THAT THE LAW GIVING INCREASED PAY AND RANK FOR OFFICERS ON AVIATION DUTY BE REVOKED. UNTIL SUCH TIME AS NOTIFICATION IS RECEIVED AS TO NOT THIS LAW HAS BEEN REVOKED, THE COMMANDER-IN-CHIEF HAS DECIDED THAT NO OFFICERS WILL BE ANNOUNCED IN ORDERS AS ON DUTY REQUIRING THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.

WHILE ABOVE IS PENDING, NO APPLICATION WILL BE MADE TO THIS OFFICE TO ISSUE ORDERS PLACING OFFICERS ON FLYING DUTY. UPON RECEIPT OF DEFINITE INFORMATION, SAME WILL BE COMMUNICATED TO ALL CONCERNED WITHOUT DELAY.

BY DIRECTION OF THE C.A.S.

W. B. BURTT,

COLONEL, SIGNAL CORPS.

G.H.Q., A.E.F., C.A.S., JAN. 26, 1918.

COPY TO: 1ST LT. E. F. WERMUTH, A.S., S.O.R.C.

IT APPEARS THAT ON OR ABOUT MAY 2, 1918, THE COMMANDING OFFICER OF THE SECOND BALLOON SQUADRON, TO WHICH CLAIMANT WAS THEN ATTACHED, AUTHORIZED CLAIMANT TO WEAR THE INSIGNIA OF AN "OBSERVER.' THE DIRECTOR OF AIR SERVICE REPORTED APRIL 5, 1920, AS FOLLOWS:

NO RECORD CAN BE FOUND OF ORDERS ANNOUNCING THIS OFFICER ON DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS, AND IT HAS NOT BEEN POSSIBLE TO ESTABLISH THE FACT THAT HE WAS ON SUCH DUTY FROM JANUARY, 1918 TO SEPTEMBER, 1918, AS CLAIMED IN HIS ORIGINAL COMMUNICATION, BUT IT WILL BE SEEN FROM THE PRECEDING INDORSEMENTS AND INCLOSURES THERETO THAT HE WAS ON FLYING DUTY FROM MARCH 6 TO JUNE 24, 1918, AND IT IS THOUGHT THAT ORDERS SHOULD ISSUE ANNOUNCING HIM AS ON SUCH DUTY BETWEEN THOSE DATES, AND ORDERS ARE RECOMMENDED ACCORDINGLY, PROVIDED HIS DISMISSAL AND CONFINEMENT DO NOT PROHIBIT SUCH ACTION.

THE ADJUTANT GENERAL OF THE ARMY REPORTED TO THE AUDITOR FOR THE WAR DEPARTMENT FEBRUARY 12, 1921, THAT "ORDERS IN THIS CASE HAVE NOT AND WILL NOT BE ISSUED, IN VIEW OF THE FACT THAT THIS OFFICER IS NO LONGER IN THE SERVICE.'

THE QUESTION THUS PRESENTED IS WHETHER AN OFFICER ASSIGNED BY A SUBORDINATE OFFICER TO DUTY REQUIRING HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND WHO PERFORMS THAT DUTY CAN BE DEPRIVED OF THE INCREASED PAY THEREFOR AUTHORIZED BY STATUTE BY THE NEGLECT, FAILURE, OR REFUSAL OF THE APPROPRIATE OFFICER TO ISSUE IN WRITING THE ORDER EVIDENCING SUCH ASSIGNMENT OR DETAIL. THE STATUTE AUTHORIZED THE INCREASED PAY WHEN AN OFFICER IS ASSIGNED TO DUTY REQUIRING HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS; THE REGULATIONS PROVIDE THAT AVIATION OFFICERS MAY BE SO ASSIGNED BY THE COMMANDING OFFICER OF AN AERONAUTICAL ORGANIZATION IN THE FIELD TO WHICH THE OFFICER MAY BE ASSIGNED.

I AM OF THE OPINION THAT THE STATUTE REQUIRES THAT AN AUTHORIZED OFFICIAL OF THE WAR DEPARTMENT SHALL DETERMINE WHETHER AN OFFICER OF THE AIR SERVICE IS "ON DUTY THAT REQUIRES HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS," AND THAT THE PERMISSION, REQUEST, OR DIRECTION OF SUBORDINATE OFFICERS TO UNDERTAKE DUTIES OF THIS CHARACTER GIVES NO RIGHT TO THE INCREASED PAY THEREFORE IN THE ABSENCE OF A COMPETENT ORDER ASSIGNING THE OFFICER TO SUCH DUTY. AS CLAIMANT HAS SUBMITTED NO ORDER ISSUED BY A COMPETENT OFFICER OF THE WAR DEPARTMENT ANNOUNCING HIS AS ON DUTY REQUIRING HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS DURING ANY PERIOD IN 1918 NO PAYMENT IS AUTHORIZED.

UPON A REVIEW OF THE MATTER NO DIFFERENCES ARE FOUND AND THE SETTLEMENT IS SUSTAINED.