B-195691, Jan 9, 1989

B-195691, Jan 9, 1989

MILITARY PERSONNEL - Pay - Variable incentive pay - Eligibility DIGEST: Termination of aviator status upon granting of Coast Guard officer's request to attend law school, resulting in the termination of entitlement to aviation career incentive pay, was proper under the authority granted to the Commandant of the Coast Guard under 14 U.S.C. Sec. 632 to assign personnel to such duties as may be deemed necessary and complied with 37 U.S.C. Sec. 301a, which provides for such incentive pay only for those remaining in aviation service on a career basis. Further, the Comptroller General has no jurisdiction to review the Commandant's determination that the officer's aviation career designation should be terminated when he ceased operational flying duties and began attending law school, notwithstanding the officer's contention that the Coast Guard should have given him a dual assignment as an aviator and as a law specialist.

Lieutenant Commander William R. Miller - Claim for Aviation Career Incentive Pay:

Lieutenant Commander William R. Miller, USCG, appeals our Claims Group's denial of his claim for aviation career incentive pay (ACIP) for the period from August 13, 1980, through December 3, 1986. We affirm the action of the Claims Group.

BACKGROUND

In 1974, Commander Miller was commissioned as an officer in the Coast Guard. In 1975, he was designated an aviator, thereby making him eligible to receive ACIP pursuant to 37 U.S.C. Sec. 301a.

In December of 1978, Commander Miller sent a letter to the Commandant of the Coast Guard explaining his interest in attending law school. Commander Miller stated that his obligated service for aviation would end on October 24, 1979, and he would leave the Coast Guard then to attend law school as a civilian unless allowed to go to law school as a Coast Guard officer. He also requested assignment as a legal specialist upon successful completion of law school.

Commander Miller's request to remain in the Coast Guard and attend law school was approved. In June of 1980, he was given orders to attend the law school at the University of Houston. Additionally, his orders stated that his aviation designation and ACIP entitlement were terminated.

From August 13, 1980, until December 15, 1982, Commander Miller was paid ACIP. This was deemed erroneous but was waived under 10 U.S.C. Sec. 2774 by our Claims Group. Therefore, while the present claim is for ACIP from August 13, 1980, through December 3, 1986, Commander Miller is only seeking pay from December 16, 1982, through December 3, 1986, and a statement that the erroneous payment previously waived was actually ACIP to which he was entitled.

DISCUSSION

Under 37 U.S.C. Sec. 301a, members of the uniformed services who are aviators are eligible for "Incentive pay: aviation career." As provided for in subsection (a)(2) of section 301a:

"Aviation career incentive pay shall be restricted to regular and reserve officers who hold, or are in training leading to an aeronautical rating or designation and who engage and remain in aviation service on a career basis.

In the present case, it would be inappropriate for us to question the Coast Guard's determination to terminate Commander Miller's designation as an aviator. The record reflects that Commander Miller requested that he be allowed to remain in the Coast Guard in the field of law, not aviation. Therefore, the Coast Guard's action in authorizing his transfer from aviation to law was in accord with his request. Furthermore, the Coast Guard's actions were within the broad discretionary powers given to the Coast Guard Commandant in 14 U.S.C. Sec. 632. The powers given to the commandant include the power to "assign ... personnel such duties ... as he deems necessary." We have no jurisdiction to review assignments made under that provision of law.

Accordingly, since the terms of the aviation incentive pay law, 37 U.S.C. Sec. 301a, require as a condition precedent to receipt of incentive pay that service members engage in aviation on a career basis, Commander Miller's claim is denied. In reaching this conclusion, we gave due consideration to the brief submitted by Commander Miller. The basic thrust of his argument, however, is that the Coast Guard should have given him a dual assignment as an aviator and as a law specialist. indicated, we have no authority to review or overrule Coast Guard duty assignments, and we have no basis to conclude that the Coast Guard was without the authority to determine that his aviation career designation should be terminated at the time he ceased operational flying duties and began attending law school.