B-106485, JANUARY 15, 1952, 31 COMP. GEN. 285

B-106485, JANUARY 15, 1952, 31 COMP. GEN. 285

PAY - AVIATION DUTY - PERIOD OF INCAPACITY - GRACE PERIOD COMMENCEMENT UNDER EXECUTIVE ORDER NO. 10152 SECTION 10 OF EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, WHICH IMPLEMENTS SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AND PROVIDES THAT A MEMBER OF THE ARMED SERVICES INCAPACITATED AS THE RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY WILL BE DEEMED TO HAVE FULFILLED ALL THE REQUIREMENTS FOR THE PERFORMANCE OF SUCH DUTY FOR A PERIOD OF THREE MONTHS FOLLOWING THE DATES OF SUCH INCAPACITY, AS DETERMINED BY APPROPRIATE MEDICAL AUTHORITY, MAY NOT BE INTERPRETED AS AUTHORIZING A FURTHER GRACE PERIOD INCIDENT TO AN AVIATION ACCIDENT WHICH OCCURRED PRIOR TO THE EFFECTIVE DATE OF THE EXECUTIVE ORDER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 15, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1951, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER SECTION 10 OF EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950, MAY BE INTERPRETED TO AUTHORIZE A MEMBER TO RECEIVE INCENTIVE PAY AS AUTHORIZED FOR A MEMBER REQUIRED TO PERFORM DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, FOR A PERIOD NOT IN EXCESS OF THREE MONTHS WITHOUT THE NECESSITY OF PERFORMING AERIAL FLIGHTS EFFECTIVE FROM THE "DATE AS OF WHICH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY," IT BEING STATED THAT THE DISABILITY WHICH OCCURRED IN 1950 RESULTED FROM AN INJURY RECEIVED IN AN AVIATION ACCIDENT IN 1944.

THE FACTS GIVING RISE TO YOUR REQUEST FOR DECISION ARE SET FORTH IN A REPORT OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, COMMITTEE ACTION NO. 8, AND RELATED PAPERS. IT APPEARS FROM THAT REPORT THAT CAPTAIN BEVERLY OLIVER BUSH, USAF, AN AIRCRAFT PILOT, WAS HOSPITALIZED ON MARCH 26, 1944, AS THE RESULT OF AN INJURY RECEIVED IN MAKING A PARACHUTE JUMP ON THAT DATE; THAT ON MARCH 30, 1944, HE RETURNED TO DUTY, AND THAT ON THE FOLLOWING DAY HE WAS REHOSPITALIZED UNTIL APRIL 9, 1944, WHEN HE AGAIN RETURNED TO DUTY. IT IS FURTHER STATED THAT ON NOVEMBER 7, 1950, A PERIOD OF MORE THAN SIX YEARS AFTER MAKING THE PARACHUTE JUMP, THE OFFICER WAS ADMITTED TO THE HOSPITAL FOR PRESERVATION; THAT HE REMAINED IN THE HOSPITAL UNTIL NOVEMBER 14, 1950, WHEN HE WAS RETURNED TO DUTY; THAT DURING SUCH PERIOD OF OBSERVATION THE NECESSITY FOR SURGERY WAS DETERMINED, AND THAT ON NOVEMBER 19, 1950, HE WAS READMITTED TO THE HOSPITAL FOR SURGERY. ALSO, IT APPEARS FROM THE COMMITTEE REPORT THAT IN A MEMORANDUM DATED MAY 17, 1951, FROM THE OFFICE OF THE SURGEON GENERAL, UNITED STATES AIR FORCE, IT IS STATED THAT " REVIEW OF THE RECORDS REVEALS THAT AT THE TIME OF THE AIRCRAFT ACCIDENT ( MARCH 26, 1944), CAPTAIN BUSH WAS TREATED FOR WHAT WAS CONSIDERED TO BE A SPRAIN OF THE BACK; " THAT " SURGERY IN NOVEMBER 1950 REVEALED THAT CAPTAIN BUSH'S SPINAL DISEASE WAS DUE, BEYOND REASONABLE DOUBT, TO A FRACTURED SPINE PREVIOUSLY INCURRED," AND THAT " THERE IS LITTLE QUESTION BUT WHAT CAPTAIN BUSH BROKE HIS BACK DURING THE BAIL-OUT IN 1944 AND THAT THE FRACTURE ACCOUNTED FOR THE DISABILITY AND HOSPITALIZATION IN 1950.'

WITH RESPECT TO THE OFFICER'S CONDITION FROM THE DATE OF THE PARACHUTE JUMP TO THE DATE OF HIS OPERATION, IT IS STATED IN THE COMMITTEE REPORT THAT EXCEPT FOR THE PERIOD MARCH 26 TO APRIL 9, 1944, THERE WAS NO EVIDENCE BEFORE THE COMMITTEE THAT HE WAS INCAPACITATED FOR FLYING DUTY BY REASON OF THE AVIATION ACCIDENT PRIOR TO HIS ADMISSION TO THE HOSPITAL ON NOVEMBER 19, 1950, FOR SURGERY, BUT, ON THE CONTRARY, INFORMATION BEFORE THE COMMITTEE INDICATED THAT HE PERFORMED HIS REGULAR DUTIES, INCLUDING AVIATION DUTY, DURING THAT PERIOD. A PHOTOSTATIC COPY OF ATRC FORM NO. 36 -7, CHANGE OF PHYSICAL QUALIFICATION AFFECTING FLYING STATUS, EXECUTED AT THE ELLINGTON AIR FORCE BASE, TEXAS, ON MARCH 5, 1951, STATES THAT ON NOVEMBER 7, 1950, CAPTAIN BUSH WAS FOUND INCAPACITATED FOR FLYING DUTY AND THAT ON MARCH 5, 1951, HE WAS FOUND TO BE PHYSICALLY QUALIFIED FOR SUCH DUTY.

AT THE TIME OF THE AVIATION ACCIDENT INVOLVED THERE WAS IN EFFECT PARAGRAPH 10 OF EXECUTIVE ORDER 9195, DATED JULY 7, 1942, ISSUED TO CARRY OUT THE PROVISIONS OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AUTHORIZING A 50 PERCENTUM INCREASE OF PAY FOR FLYING DUTY. THAT SECTION OF THE EXECUTIVE ORDER EXCUSED A FLYING OFFICER WHO BECAME INCAPACITATED FOR FLYING DUTY BY REASON OF AN AVIATION ACCIDENT FROM THE PERFORMANCE OF MINIMUM FLIGHT REQUIREMENTS FOR A PERIOD OF INCAPACITY NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF THE ACCIDENT.

SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810, PROVIDES, SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, RATES OF INCENTIVE PAY FOR THE PERFORMANCE OF THE VARIOUS TYPES OF HAZARDOUS DUTY THEREIN SPECIFIED, INCLUDING DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS, WHEN REQUIRED BY COMPETENT ORDERS.

SECTION 10 OF EXECUTIVE ORDER 10152, DATED AUGUST 17, 1950, ISSUED TO IMPLEMENT SECTION 204, SUPRA, READS AS FOLLOWS:

ANY MEMBER WHO IS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY AND WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF SUCH DUTY, BY AVIATION ACCIDENT OR OTHERWISE, SHALL BE DEEMED TO HAVE FULFILLED ALL OF THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE AS OF WHICH SUCH INCAPACITY IS DETERMINED BY THE APPROPRIATE MEDICAL AUTHORITY.

THE FOREGOING REGULATION IS MORE BROADLY STATED THAN THE CORRESPONDING PROVISION IN THE PRIOR EXECUTIVE ORDER SO AS TO COVER ALL MEMBERS WHO ARE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY FOR WHICH INCENTIVE PAY IS AUTHORIZED BY THE 1949 PAY ACT. THE REGULATION SEEMS TO COMPLETE THAT A MEMBER INCAPACITATED AS THE RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY WILL BE DEEMED TO HAVE FULFILLED ALL THE REQUIREMENTS FOR THE PERFORMANCE OF SUCH DUTY DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE, AS DETERMINED BY APPROPRIATE MEDICAL AUTHORITY, THAT THE INCAPACITY BEGAN. HOWEVER, THAT SECTION IS MADE EFFECTIVE AS OF OCTOBER 1, 1949, THE EFFECTIVE DATE OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, AND THERE IS NO INDICATION OF ANY INTENTION TO GRANT AN ADDITIONAL OR SECOND THREE-MONTH GRACE PERIOD DURING WHICH A MEMBER WILL BE EXCUSED FROM MEETING THE HAZARDOUS DUTY REQUIREMENTS FOR INCENTIVE PAY IN CASE HE BECOMES INCAPACITATED AFTER THE EFFECTIVE DATE OF THE REGULATION AS A RESULT OF DUTY PERFORMED LONG PRIOR TO SUCH EXECUTIVE ORDER.

UNDER THE REGULATIONS IN EFFECT AT THE DATE OF THE AVIATION ACCIDENT INVOLVED, CAPTAIN BUSH WOULD HAVE BEEN EXCUSED FROM MEETING MINIMUM FLIGHT REQUIREMENTS FOR A THREE MONTH PERIOD FOLLOWING SUCH DATE HAD HE BEEN INCAPACITATED. SUCH PERIOD HAD EXPIRED OVER FIVE YEARS PRIOR TO THE EFFECTIVE DATE OF SECTION 10 OF EXECUTIVE ORDER 10152. THAT SECTION MAY NOT BE INTERPRETED AS AUTHORIZING A FURTHER GRACE PERIOD DURING THE OFFICER'S INCAPACITY IN 1950 FOR WHICH THE PAYMENT OF INCENTIVE PAY IS AUTHORIZED WITHOUT THE PERFORMANCE OF HAZARDOUS DUTY. YOUR QUESTION IS ANSWERED ACCORDINGLY.