B-111878, DEC 31, 1952

B-111878, DEC 31, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF THE DEPUTY SECRETARY OF DEFENSE DATED SEPTEMBER 12, 1952, REQUESTING DECISION AS TO WHETHER A REGULATION MAY BE PROMULGATED BY THE RESPECTIVE SERVICES PROVIDING THAT A PURELY ADMINISTRATIVE SUSPENSION FROM FLYING SHALL BE NULLIFIED FROM ITS INCEPTION WHEN OR IF SUCH SUSPENSION IS REVOKED, WITHOUT CONTRAVENING SECTION 5 OF EXECUTIVE ORDER 10152, AUGUST 17, 1950.

SECTION 4 OF THE SAID EXECUTIVE ORDER PRESCRIBES MINIMUM FLIGHT REQUIREMENTS - FOR INCENTIVE PAY UNDER SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 908 - AS FOLLOWS:

"(1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT.

"(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

"(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 12 HOURS OF AERIAL FLIGHT."

SECTION 5 OF THE EXECUTIVE ORDER IS AS FOLLOWS:

"MEMBERS SHALL NOT BE ENTITLED TO RECEIVE INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION, UNLESS SUCH SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 HEREOF HAVE BEEN COMPLIED WITH, EXCEPT AS OTHERWISE PROVIDED IN SECTION 10 HEREOF."

SECTION 10 OF THE EXECUTIVE ORDER, REFERRED TO IN THE ABOVE SECTION 5, PERTAINS TO INCAPACITY AS A RESULT OF PERFORMANCE OF HAZARDOUS DUTY AND IS NOT MATERIAL HERE.

THERE WAS ENCLOSED WITH THE REQUEST FOR DECISION A COPY OF COMMITTEE ACTION NO. 34, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, WHICH INCLUDES A PROPOSED REGULATION, IN MATERIAL PART AS FOLLOWS:

"SUSPENSIONS: ANY MEMBER WHO, IN THE OPINION OF HIS COMMANDING OFFICER, IS UNFIT FOR FLYING, EXCEPT AS THE RESULT OF AN AVIATION ACCIDENT, SHALL BE SUSPENDED BY WITHDRAWAL OF PERMISSION TO FLY. WHEN SUCH MEMBER IS AGAIN FIT FOR FLYING, THE SUSPENSION SHALL BE REVOKED AND BE CONSIDERED AS NULLIFIED FROM THE BEGINNING. INCENTIVE PAY ACCRUES ON THE BASIS OF MEETING MINIMUM FLIGHT REQUIREMENTS FOLLOWING REVOCATION OF THE SUSPENSION, REGARDLESS OF WHETHER REVOCATION OCCURS WITHIN OR SUBSEQUENT TO THE EXPIRATION OF THE GRACE PERIOD."

UNDER PRIOR LEGISLATION PROVIDING ADDITIONAL PAY FOR THE PERFORMANCE OF FLYING DUTY, PARAGRAPH 10 OF EXECUTIVE ORDER 9195, JULY 7, 1942, PRESCRIBED FLIGHT REQUIREMENTS SUBSTANTIALLY SIMILAR TO THOSE OUTLINED IN SECTION 4 OF EXECUTIVE ORDER 10152, SUPRA.

UNDER THE PERTINENT PROVISIONS OF BOTH SUCH EXECUTIVE ORDERS, A MEMBER OF THE UNIFORMED SERVICES, NOT UNDER SUSPENSION, WHO FAILS TO MEET FLIGHT REQUIREMENTS WITHIN THE PRESCRIBED THREE-MONTH GRACE PERIOD, THEREUPON LOSES ANY FUTURE OPPORTUNITY TO MAKE UP SUCH REQUIREMENTS FOR ANY PART OF THAT PERIOD. SEE 25 COMP. GEN. 483, PERTAINING TO EXECUTIVE ORDER 9195.

PARAGRAPH 12 OF EXECUTIVE ORDER 9195, SUPRA, PROVIDED:

"A COMMANDING OFFICER SHALL SUSPEND FROM FLYING ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN UNDER HIS COMMAND WHO, IN HIS OPINION, IS UNFIT FOR FLYING, EXCEPT AS A RESULT OF AN AVIATION ACCIDENT.

*** PROVIDED, THAT IN THE CASE OF SUSPENSION FROM FLYING BY REASON OF SICKNESS OR INJURY INCURRED IN LINE OF DUTY AND SUBSEQUENT REMOVAL THEREOF, SUCH SUSPENSION SHALL BE CONSIDERED AS NULLIFIED FROM ITS BEGINNING, AND THE PERSON CONCERNED SHALL BE ENTITLED TO INCREASED PAY FOR FLYING PROVIDED THE REQUIREMENTS OF PARAGRAPH 10 ABOVE ARE COMPLIED WITH."

IT WAS HELD IN DECISION DATED JULY 20, 1945, B-45495, 25 COMP. GEN. 77, THAT THE EFFECT OF A REVOCATION OF SUSPENSION FROM FLYING, UNDER THE PROVISIONS OF THE ABOVE PARAGRAPH 12, WAS DEPENDENT UPON WHETHER OR NOT SUCH REVOCATION OCCURRED WITHIN A PERIOD OF THREE CALENDAR MONTHS BEGINNING WITH THE MONTH IN WHICH FLIGHT DEFICIENCY FIRST AROSE, REGARDLESS OF WHETHER SUCH DEFICIENCY WAS BY REASON OF THE SUSPENSION OR BY REASON OF FAILURE TO MAKE SUFFICIENT FLIGHTS; THAT IF THE REVOCATION OCCURRED WITHIN THE THREE-MONTH PERIOD SO ESTABLISHED, THE RIGHT TO AVIATION PAY WAS FOR DETERMINATION AS IF THE SUSPENSION HAD NEVER BEEN MADE; AND THAT IF REVOCATION OCCURRED AFTER THE EXPIRATION OF THE THREE- MONTH GRACE PERIOD, THE RIGHT TO AVIATION PAY FOR ANY PART OF THE PERIOD WAS LOST.

WITH RESPECT TO REMOVAL OF SUSPENSIONS, SECTION 5 OF EXECUTIVE ORDER NO. 10152, HEREINBEFORE QUOTED, PROVIDES THAT MEMBERS SHALL NOT BE ENTITLED TO INCENTIVE PAY" *** UNLESS SUCH SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 HEREOF HAVE BEEN COMPLIED WITH ***." THE SAID SECTION 5 IS TO BE GIVEN THE SAME INTERPRETATION AS WAS GIVEN THE SIMILAR EARLIER SECTION 12 AND THE REGULATIONS PROPOSED SHOULD BE CONSISTENT THEREWITH. IT FOLLOWS THAT THE RULES STATED IN 25 COMP. GEN. 77, SUPRA, SHOULD BE USED AS A GUIDE IN DRAFTING SUCH REGULATIONS. INASMUCH AS NO RIGHT IS GIVEN IN SECTION 4 TO MAKE UP FLIGHT DEFICIENCIES AFTER EXPIRATION OF THE THREE MONTH PERIOD FIXED IN THAT SECTION, THE LAST SENTENCE OF THE PROPOSED REGULATIONS UNDER "SUSPENSIONS," WHICH WOULD AUTHORIZE DEFICIENCIES IN FLIGHT REQUIREMENTS TO BE MADE UP SUBSEQUENT TO THE EXPIRATION OF THAT PERIOD, IS INCONSISTENT WITH THE EXECUTIVE ORDER. HENCE, NO EXAMPLE SHOULD BE INCLUDED IN SUCH REGULATIONS WHICH WOULD INDICATE THAT INCENTIVE PAY IS AUTHORIZED ON THE BASIS OF FLIGHTS MADE UP AFTER THE EXPIRATION OF THE THREE-MONTH PERIOD.