A-8008, MAY 22, 1925, 4 COMP. GEN. 975

A-8008, MAY 22, 1925, 4 COMP. GEN. 975

NAVY PAY - AVIATION DUTY WHEN THE FLIGHT REQUIREMENTS FIXED IN THE EXECUTIVE ORDER OF JULY 1, 1922, ARE NOT COMPLIED WITH DURING ANY MONTH, THE DEFICIENCY MUST BE MADE UP WITHIN THE TWO MONTHS NEXT SUCCEEDING, AND IF IN ONE OF THE TWO SUCCEEDING MONTHS THERE HAS NOT BEEN COMPLIANCE WITH THE MONTHLY REQUIREMENTS FOR THAT MONTH, THE FAILURE IN THAT MONTH IS INCLUDED IN THE ORIGINAL THREE MONTHS' PERIOD AND IS NOT THE BEGINNING OF ANOTHER THREE MONTHS' PERIOD.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE NAVY, MAY 22, 1925:

I HAVE YOUR LETTER OF FEBRUARY 12, 1925, SUBMITTING PROPOSED CHANGES IN SECTION F OF THE PRINTED "INSTRUCTIONS FOR CARRYING INTO EFFECT THE JOINT SERVICE PAY BILL, ACT OF 10 JUNE, 1922, WITH REQUEST FOR AN EXPRESSION OF VIEWS AS TO WHETHER THE PROPOSED CHANGES IN SO FAR AS THEY INVOLVE DISBURSEMENTS ARE IN CONFORMITY WITH LAW.

THE PROPOSED CHANGES DEAL WITH THAT PART OF THE EXECUTIVE ORDER WHICH READS AS FOLLOWS:

9. EACH OFFICER, WARRANT OFFICER, OR ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, WHO IS DETAILED TO DUTY INVOLVING FLYING, SHALL BE REQUIRED TO MAKE AT LEAST TEN FLIGHTS OR BE IN THE AIR A TOTAL OF FOUR HOURS DURING EACH CALENDAR MONTH; PROVIDED, THAT AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN SO DETAILED, WHO IS UNABLE TO MEET THESE REQUIREMENTS DURING ANY CALENDAR MONTH FOR ANY REASON OTHER THAN SICKNESS OR INJURY, SHALL BE REGARDED AS HAVING MET THEM IF HE PERFORMS A MINIMUM OF TWENTY FLIGHTS OR IS IN THE AIR A MINIMUM OF EIGHT HOURS PRIOR TO THE END OF THE FOLLOWING CALENDAR MONTH; PROVIDED FURTHER, THAT AN OFFICER, WARRANT OFFICER, OR ENLISTED MAN SO DETAILED, WHO IS UNABLE TO MEET THIS ALTERNATIVE REQUIREMENT FOR ANY REASON OTHER THAN SICKNESS OR INJURY, SHALL BE REGARDED AS HAVING MET THIS REQUIREMENT IF HE PERFORMS A MINIMUM OF THIRTY FLIGHTS OR IS IN THE AIR A MINIMUM OF TWELVE HOURS PRIOR TO THE END OF THE CALENDAR MONTH THERETO SUCCEEDING. FAILURE TO COMPLY WITH THE FOREGOING REQUIREMENTS SHALL HAVE THE EFFECT OF SUSPENDING THE DETAIL TO DUTY INVOLVING FLYING, BUT ONLY FOR THE PERIOD DURING WHICH THE FOREGOING REQUIREMENTS AS TO FLIGHTS ARE NOT COMPLIED WITH * * *.

ORIGINALLY THE INSTRUCTIONS CONTAINED THE NAVY DEPARTMENT'S INTERPRETATION OF THE EXECUTIVE ORDER OF JULY 1, 1922, THAT NO FLIGHT PAY WAS PAYABLE FOR, SAY, THE FLIGHTS OF JULY, AUGUST, OR SEPTEMBER WHERE A RECORD SHOWS 5 FLIGHTS IN JULY, 12 IN AUGUST, AND 12 IN SEPTEMBER, FOR THE REASON THAT ONLY 17 IN ALL HAD BEEN MADE TO AUGUST 31, AND ONLY 29 TO SEPTEMBER 30, AN AGGREGATE OF LESS THAN 20 FOR TWO MONTHS OR 30 FOR THREE.

IN DECISION OF THIS OFFICE DECEMBER 5, 1924, 40 MS. COMP. GEN. 213, IT WAS HELD THAT FLIGHT PAY WAS PAYABLE FOR EVERY MONTH IN WHICH, UNDER A DETAIL TO DUTY INVOLVING REGULAR AND FREQUENT PARTICIPATION IN FLIGHTS, 10 FLIGHTS OR FOUR HOURS OF FLYING WERE MADE IRRESPECTIVE OF FAILURE IN PERFORMANCE IN A PRECEDING OR SUBSEQUENT PERIOD.

THIS DECISION MODIFIED THE INSTRUCTIONS PREVIOUSLY ISSUED IN THAT IT HELD THAT WHERE THERE HAD BEEN A FAILURE IN A CERTAIN MONTH TO ACQUIRE THE MINIMUM FLIGHTS REQUIRED, THE RIGHT TO AVIATION PAY FOR THE NEXT SUCCEEDING MONTH WAS NOT CONTINGENT UPON A MINIMUM OF 20 FLIGHTS OR 8 HOURS IN THE AIR AT THE CLOSE OF THE SECOND MONTH; AND THAT WHERE THERE WAS A FAILURE IN THE FIRST MONTH NOT MADE UP IN THE SECOND THE RIGHT TO AVIATION PAY FOR THE SECOND SUCCEEDING MONTH WAS NOT CONTINGENT UPON A MINIMUM OF 30 FLIGHTS OR 12 HOURS IN THE AIR AT THE CLOSE OF THE THIRD MONTH.

ACCORDINGLY A FAILURE TO FULFILL THE FLIGHT REQUIREMENTS OCCURS ONLY WHEN THE MINIMUM FOR A MONTH HAS NOT BEEN MADE, AND THE FAILURE IS NOT MADE UP WITHIN THE ONE OR TWO MONTHS IMMEDIATELY FOLLOWING.

IN DECISION OF DECEMBER 5, 1924, IT WAS SAID:

UNDER THE REGULATIONS AND PROCEDURE APPARENTLY TO BE FOLLOWED PURSUANT THERETO, IT IS INTENDED TO BENEFIT AN AVIATOR WHO FOR SOME PROPER REASON IS UNABLE TO MAKE THE REQUISITE NUMBER OF TEN FLIGHTS WITHIN A GIVEN MONTH. THE REGULATIONS AND THE EXAMPLES SET FORTH THEREIN APPARENTLY WOULD DEPRIVE THE FLIER OF INCREASED PAY FOR A SUCCEEDING MONTH OR MONTHS FOR WHICH THE NECESSARY NUMBER OF FLIGHTS APPEARED. THIS IS NOT AUTHORIZED. THE REQUISITE NUMBER OF FLIGHTS IN EACH OF THE SUCCEEDING MONTHS APPEARING, PAYMENT THEREFOR MUST BE MADE. THE COMBINED TOTAL HAS REFERENCE ONLY TO THE MONTH IN WHICH THE CONDITION AROSE OF NONPERFORMANCE OF THE REQUISITE NUMBER OF FLIGHTS, AND THAT CONDITION NOT HAVING BEEN CURED WITHIN THE PRESCRIBED PERIOD, IT FOLLOWS THAT FOR THE MONTH IN QUESTION NO INCREASE OF PAY FOR FLIGHTS MAY BE MADE. BUT THIS DOES NOT AFFECT THE SUCCEEDING TWO MONTHS IN WHICH THE REQUISITE NUMBER OF FLIGHTS APPEARED.

IT MAY BE ADDED THAT IF IN THE SECOND MONTH A SIMILAR CONDITION OF NOT HAVING THE FIXED NUMBER OF FLIGHTS APPEARED, NEVERTHELESS SUCH CONDITION COULD BE CURED BY THE REQUIRED FLIGHTS DURING THE SUCCEEDING OR THIRD MONTH, BUT THE NUMBER OF FLIGHTS APPEARING IN THE THIRD MONTH MUST DETERMINE THE RIGHT TO PAY FOR THE PRECEDING TWO MONTHS, AND IF A TOTAL FOR THE THREE MONTHS DID NOT THEN APPEAR, AND ONLY A SUFFICIENT NUMBER APPEARED TO COVER THE THIRD MONTH, PAY FOR THE PRECEDING TWO MONTHS WOULD NOT BE AUTHORIZED, BUT ONLY FOR THE THIRD MONTH. IN OTHER WORDS, A NEW THREE MONTHS' PERIOD DOES NOT ARISE BY REASON OF THE CONDITION OF PERFORMANCE OF 10 FLIGHTS IN THE SECOND MONTH, BUT THE THREE MONTHS' PERIOD IS ONE AND CONTINUES ACCORDING TO THE CONDITION RAISED BY THE FIRST MONTH.

THE MODIFICATION IN THE INSTRUCTIONS, WITH THE EXAMPLES SUGGESTED, PROPOSES TO INCLUDE WITHIN A NEW THREE MONTHS' PERIOD, MONTHS IN WHICH THE FLYING REQUIREMENTS WERE NOT MET WHERE THERE WAS AN EXCESS OVER THE REQUIREMENTS IN A MONTH OR MONTHS IMMEDIATELY SUCCEEDING THE THREE MONTHS' PERIOD FIXED BY THE FIRST FAILURE TO COMPLY WITH THE MONTHLY FLYING REQUIREMENTS. AS STATED IN THE DECISION OF DECEMBER 5, 1924, THIS IS NOT PERMISSIBLE. THE THREE MONTHS' PERIOD WAS FIXED AS A PERIOD OF GRACE TO GIVE THE OFFICER AN OPPORTUNITY TO COMPLY WITH THE REQUIREMENTS AND THAT PERIOD OF GRACE IS BY THE REGULATIONS FIXED AS AN ENTIRETY SO FAR AS NONCOMPLIANCE WITH THE FLYING REQUIREMENTS IS CONCERNED. TO ILLUSTRATE: ONE OF THE EXAMPLES PROPOSED, DESCRIBED AS "CASE 8," IS AS FOLLOWS:

CHART

FLIGHTS IN JULY ----------------------------------------------- 5

FLIGHTS IN AUGUST --------------------------------------------- 8

FLIGHTS IN SEPTEMBER ------------------------------------------ 11

FLIGHTS IN OCTOBER -------------------------------------------- 18

CREDIT FLIGHT PAY FOR AUGUST, SEPTEMBER, AND OCTOBER, AS FLIGHT REQUIREMENTS FOR AUGUST AND SEPTEMBER WERE MET IN OCTOBER.

FLIGHT STATUS FOR JULY HAS LAPSED BECAUSE FLIGHT REQUIREMENTS WERE NOT MET IN THE TWO MONTHS THEREAFTER SUCCEEDING.

IN THIS EXAMPLE THE OFFICER IS ENTITLED TO FLYING PAY FOR SEPTEMBER BECAUSE HE PERFORMED THE REQUIRED NUMBER OF FLIGHTS DURING THAT MONTH. IS NOT, HOWEVER, ENTITLED TO FLYING PAY FOR AUGUST BASED UPON FLIGHTS MADE IN OCTOBER AS AUGUST IS INCLUDED IN THE THREE MONTHS' PERIOD WHICH COMMENCED WITH JULY DURING WHICH THE EXECUTIVE ORDER REQUIRED THAT HE HAVE THE 10 FLIGHTS PER MONTH, OR 30 FLIGHTS DURING THE PERIOD. NOT HAVING HAD THE 30 FLIGHTS DURING THE PERIOD, HE IS ENTITLED TO FLYING PAY ONLY DURING THE MONTH OR MONTHS HE PERFORMED 10 FLIGHTS OR HAD THE REQUISITE TIME IN THE AIR. WHILE THE FAILURE IN ANY MONTH CREATES A RIGHT TO FLYING PAY UPON COMPLIANCE WITH THE REQUIREMENTS IN THE SUCCEEDING TWO MONTHS, EVERY MONTH IN WHICH THERE IS A FAILURE DOES NOT COMMENCE THE RUNNING OF A NEW THREE MONTHS' PERIOD.

THE PROPOSED INSTRUCTIONS ARE NOT THEREFORE IN ACCORDANCE WITH THE DECISION OF DECEMBER 5, 1924.