B-110593, FEB 27, 1953

B-110593, FEB 27, 1953

PRECIS-UNAVAILABLE

MAJOR W.W. AULT, USAF:

THERE HAS BEEN RECEIVED, VIA HEADQUARTERS UNITED STATES AIR FORCE, YOUR LETTER OF MAY 1, 1952, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE A PAYMENT TO LIEUTENANT COLONEL EUGENE H. FIELD, REPRESENTING THE DIFFERENCE BETWEEN INCENTIVE PAY FOR FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS NOT AS A CREW MEMBER AND INCENTIVE PAY FOR FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS AS A CREW MEMBER, FOR THE PERIOD JULY 1, 1951, TO MARCH 26, 1952.

PERSONNEL ORDERS NO. 44, HEADQUARTERS AIR TRAINING COMMAND, SCOTT AIR FORCE BASE, ILLINOIS, DATED JUNE 30, 1951, ARE, IN PERTINENT PART, AS FOLLOWS:

"17. THE FOLLOWING NAMED OFFICERS ARE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS NON-CREW MEMBERS UNDER THE PROVISIONS OF SECTION 2, EXECUTIVE ORDER 10152, DATED 17 AUGUST 1950 AND PARAGRAPH 4F(2), AIR FORCE REGULATION 35-19, 12 APRIL 1951, WITHIN THE MEANING OF PARAGRAPH 3G, AIR FORCE REGULATION 173-128, 8 FEBRUARY 1951, FOR THE PERIOD 1 JULY 1951 TO 30 JUNE 1952, BOTH DATES INCLUSIVE, FOR THE PURPOSE OF PERFORMING INSTRUCTOR DUTIES IN ELECTRONIC COUNTER-MEASURES OFFICER COURSE, NUMBER 78881. THIS ORDER WILL TERMINATE UPON RELIEF OF OFFICER FROM DUTY INDICATED. (AUTH: PAR 7A, AFR 35-19, 12 APR 51):

LIEUTENANT COLONEL EUGENE H. FIELD, 2818A, USAF

BY COMMAND OF MAJOR GENERAL MCNAUGHTON:" IN ADDITION TO COLONEL FIELD, THE ABOVE PARAGRAPH 17 PERTAINS TO 24 OTHER OFFICERS.

PERSONNEL ORDERS NO. 16, HEADQUARTERS AIR TRAINING COMMAND, SCOTT AIR FORCE BASE, ILLINOIS, DATED MARCH 24, 1952, ARE IN PERTINENT PART, AS FOLLOWS:

"1. CONFIRMING VERBAL ORDERS OF THE COMMANDING GENERAL, AIR TRAINING COMMAND, 30 JUNE 1951, AND DUE TO ADMINISTRATIVE ERROR, SO MUCH OF PARAGRAPH 17, PERSONNEL ORDERS NUMBER 44, THIS HEADQUARTERS, 30 JUNE 1951, AS READS, 'THE FOLLOWING NAMED OFFICERS ARE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS CREW MEMBERS UNDER THE PROVISIONS OF SECTION 2, EXECUTIVE ORDER 10152 DATED 17 AUGUST 1950 AND PARAGRAPH 4F(2), AIR FORCE REGULATION 35-19, 12 APRIL 1951, WITHIN THE MEANING OF PARAGRAPH 3G, AIR FORCE REGULATION 173-128, 8 FEBRUARY 1951, FOR THE PERIOD 1 JULY 1951 TO 30 JUNE 1952 BOTH DATES INCLUSIVE, FOR THE PURPOSE OF PERFORMING INSTRUCTOR DUTIES IN ELECTRONIC COUNTER-MEASURES OFFICER COURSE, NUMBER 78881," IS AMENDED TO READ, "THE FOLLOWING NAMED OFFICERS ARE REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS CREW MEMBERS UNDER THE PROVISIONS OF SECTION 2, EXECUTIVE ORDER 10152, DATED 17 AUGUST 1950 AND PARAGRAPH 4F(1), AIR FORCE REGULATION 35- 19, 12 APRIL 1951, WITHIN THE MEANING OF PARAGRAPH 3F(5), AIR FORCE REGULATION 173-128, 8 FEBRUARY 1951, FOR THE PERIOD 1 JULY 1951 TO 30 JUNE 1952, BOTH DATES INCLUSIVE, WHILE OCCUPYING A CREW POSITION AS ELECTRONIC COUNTER MEASURES OFFICER INSTRUCTOR, SSN 78881 AUTHORIZED ON A TABLE OF ORGANIZATION AND EQUIPMENT, TABLE OF DISTRIBUTION, OR MANNING TABLE."

BY COMMAND OF LIEUTENANT GENERAL HARPER:" IT IS NOTED THAT PARAGRAPHS 2 AND 3 OF THE ABOVE ORDERS OF MARCH 24, 1952, ARE STATED AS AMENDING PERSONNEL ORDERS NO. 56, SEPTEMBER 26, 1951, AND THAT PARAGRAPH 4 IS STATED AS AMENDING PERSONNEL ORDERS NO. 4, JANUARY 11, 1952, ALL SUCH AMENDMENTS PURPORTING TO CONFIRM VERBAL ORDERS AND CORRECT ADMINISTRATIVE ERRORS SO AS TO DIRECT, RETROACTIVELY, THE PERFORMANCE OF FLYING DUTY, BY CERTAIN OFFICERS, AS CREW MEMBERS RATHER THAN AS NON-CREW MEMBERS.

IN DECISION OF JANUARY 23, 1948, B-70307, IT WAS HELD THAT AN ATTEMPTED RETROACTIVE AMENDMENT OF FLIGHT ORDERS MADE TO CORRECT AN ADMINISTRATIVE ERROR AND TO CONFORM WITH VERBAL ORDERS OF THE COMMANDING GENERAL, ARMY AIR FORCES, WAS INEFFECTIVE. ALSO, IN CONNECTION WITH THE PRESENT QUESTION THERE ARE FOR CONSIDERATION PRIOR DECISIONS OF THIS OFFICE IN REGARD TO RETROACTIVE AMENDMENTS OF TRAVEL ORDERS, THE REASONING THEREIN EMPLOYED BEING PERTINENT HERE. THE RULE AS TO RETROACTIVE AMENDMENT OF TRAVEL ORDERS, GENERALLY, IS THAT SUCH MODIFICATIONS MAY BE RECOGNIZED ONLY IN EXCEPTIONAL CASES WHERE THE ORDERS ON THEIR FACE ARE INCOMPLETE OR AMBIGUOUS OR WHERE ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE WAS OMITTED THROUGH ERROR OR INADVERTENCE. 24 COMP. GEN. 439. SEE, ALSO, B-107907, FEBRUARY 28, 1952, B-108925, MAY 15, 1952, AND B-108841, AUGUST 1, 1952.

IN CONNECTION WITH THE MATTER OF THE TIME WITHIN WHICH VERBAL ORDERS SHOULD BE CONFIRMED IN WRITING, IT WAS STATED IN DECISION OF MARCH 30, 1950, B-92418, THAT THE "REQUIREMENT THAT VERBAL ORDERS MUST BE CONFIRMED WITHIN A REASONABLE TIME AFTER SUCH ORDERS ARE ISSUED, IS BASED UPON THE PROBABILITY THAT MANY OF THE FACTS WITH RESPECT TO SUCH ORDERS ARE MATTERS OF MEMORY RATHER THAN OF WRITTEN RECORD AND IF CONFIRMATORY ORDERS ARE TO BE OF SUCH ACCURACY AS TO PERMIT THE PAYMENT OF PUBLIC FUNDS ON THE BASIS THEREOF, THEY MUST BE ISSUED WHILE THE OFFICER ISSUING SUCH ORDERS HAS A VIVID MEMORY AS TO SUCH FACTS." TO SIMILAR EFFECT IS B-105167, SEPTEMBER 19, 1951; B-109098, MAY 22, 1952; AND B-109551, OCTOBER 17, 1952.

IN THE PRESENT CASE NOT ONLY WERE THE CONFIRMATORY ORDERS ISSUED ALMOST NINE MONTHS AFTER THE RECITED DATE OF THE VERBAL ORDERS BUT SUCH VERBAL ORDERS APPARENTLY ARE ATTRIBUTED TO MAJOR GENERAL MCNAUGHTON, WHEREAS THE CONFIRMATION OF SUCH ORDERS WAS ISSUED BY COMMAND OF LIEUTENANT GENERAL HARPER. AND IF THE COMMANDING GENERAL, AIR TRAINING COMMAND, ACTUALLY GAVE VERBAL ORDERS ON OR ABOUT JUNE 30, 1951, WHICH WERE INCONSISTENT WITH HIS OWN WRITTEN ORDERS OF THAT DATE, NO SATISFACTORY EXPLANATION HAS BEEN OFFERED AS TO WHY IT WAS IMPRACTICABLE TO CORRECT THE WRITTEN ORDERS AND TO REDUCE THE VERBAL ORDERS TO WRITING FOR ALMOST NINE MONTHS AFTER JUNE 30, 1951.

UNDER THE CIRCUMSTANCES HERE DISCLOSED, THIS OFFICE DOES NOT CONSIDER IT HAS BEEN ESTABLISHED THAT ON JUNE 30, 1951, THE COMMANDING GENERAL, AIR TRAINING COMMAND, SCOTT AIR FORCE BASE, ILLINOIS, ACTUALLY ISSUED VERBAL ORDERS (UNDERSTOOD BY ALL CONCERNED AS TAKING PRECEDENCE OVER HIS WRITTEN ORDERS OF THAT DATE) DIRECTING THE PARTICIPATION BY LIEUTENANT COLONEL FIELD, AND THE OTHER OFFICERS HERE INVOLVED, IN FREQUENT AND REGULAR AERIAL FLIGHTS AS CREW MEMBERS.

IT IS EVIDENT THAT THE CONGRESS, IN PROVIDING DIFFERENT RATES OF INCENTIVE PAY TO INDIVIDUALS IN THE SAME PAY GRADE FOR DUTY AS CREW MEMBERS, INTENDED THE PERFORMANCE OF DIFFERENT TYPES OF DUTY BY INDIVIDUALS IN THE TWO CATEGORIES AND IT MUST BE PRESUMED THAT COLONEL FIELD AND THE OTHER OFFICERS HERE CONCERNED PERFORMED DUTY AS NON-CREW MEMBERS UNTIL MARCH 24, 1952, SINCE THEIR ONLY ORDERS OF RECORD BEFORE THAT DATE SO DIRECTED.

ON THE RECORD PRESENTED, THE PROPOSED PAYMENT IS NOT AUTHORIZED AND THE ENCLOSURES RECEIVED WITH YOUR LETTER WILL BE RETAINED IN THIS OFFICE.