B-119143, JUN 8, 1954

B-119143, JUN 8, 1954

PRECIS-UNAVAILABLE

CAPTAIN T.C. GRABFELDER, JR., DEPARTMENT OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1954, TRANSMITTED HERE BY LETTER OF MARCH 4, 1954, FROM DIRECTOR OF FINANCE, HEADQUARTERS UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AN TO THE PROPRIETY OF PAYING FLYING PAY TO CAPTAIN LOVELL E. BAKER, JR., AO 205 9930, FOR THE PERIOD (DECEMBER 1 TO 31, 1953) COVERED BY CERTIFICATE FOR AVIATION, PARACHUTE, GLIDER, AND DIVING PAY (MILITARY PAY ORDER NO. 468, DATED DECEMBER 18, 1953).

THE PERTINENT FACTS IN CAPTAIN BAKER'S CASE APPEAR SUBSTANTIALLY AS FOLLOWS: BY PARAGRAPH 68 OF SPECIAL ORDERS NO. 107, HEADQUARTERS FOURTEENTH AIR FORCE, DATED JUNE 1, 1951, CAPTAIN BAKER WAS RECALLED TO EXTENDED ACTIVE DUTY EFFECTIVE JULY 23, 1951. WHILE A COPY OF SUCH ORDER WAS NOT TRANSMITTED HERE IT IS STATED THAT THE ORDER INDICATED "PILOT NOT ON FLY STATUS." PERSONNEL ORDERS NO. 67, HEADQUARTERS FOURTEENTH AIR FORCE, DATED JUNE 8, 1951, ISSUED PRIOR TO THE EFFECTIVE DATE OF CAPTAIN BAKER'S RECALL TO EXTENDED ACTIVE DUTY ARE IN PART AS FOLLOWS:

"THE FOL OFFICERS USAFR, HAVING BEEN RECALLED TO EAD W/THE USAF PER PAR AND SO INDICATED THIS HQ DATE INDICATED, TO PERFORM DY NOT INVOLVING FLYING ARE SUSPENDED FROM FLYING STATUS EFFECTIVE AS OF DATE OF RECALL. SUSPENSION FROM FLYING STATUS IMPOSED BY THIS ORDER, TERMINATES ON DATE OFFICERS ARE RELIEVED FROM EAD ENTERED UPON PURSUANT TO SO CITED. (AUTH: MSF HQ USAF AFPMP-1-0 27518 13 SEP 50).

EFF DT RECALL PAR SO DUTY STATION ********************* ********* ********* ************* CAPT LOVELL E BAKER AO2059930 21 JUL 51 68 107 HQ & HQ SQ 14 AF

1 JUN 51 ROBINS AFB GA

W/PERM DY AT

AFROTC UNIT UNIV

ALA UNIV ALA"

FURTHER IT IS STATED IN YOUR LETTER THAT BY PARAGRAPH 48 OF SPECIAL ORDERS NO. 197, HEADQUARTERS FOURTEENTH AIR FORCE, DATED OCTOBER 9, 1951, CAPTAIN BAKER WAS RELEASED FROM EXTENDED ACTIVE DUTY EFFECTIVE OCTOBER 11, 1951, FOR THE REASON "CONVENIENCE OF GOVT TO ACCEPT IMMEDIATE ACTIVE DUTY IN VOLUNTARY INDEFINITE STATUS," AND THAT BY PARAGRAPH 49 OF SUCH ORDERS CAPTAIN BAKER WAS RECALLED TO ACTIVE DUTY FOR AN INDEFINITE PERIOD, EFFECTIVE OCTOBER 12, 1951, AS "PLT ON FLYING STATUS." HOWEVER, PARAGRAPHS 48 AND 49 OF SPECIAL ORDERS NO. 197 SUBSEQUENTLY WERE REVOKED BY PARAGRAPH 5 OF SPECIAL ORDERS NO. 221, HEADQUARTERS FOURTEENTH AIR FORCE, DATED NOVEMBER 13, 1951.

ALSO IT APPEARS THAT IMMEDIATELY UPON RECEIPT OF SPECIAL ORDERS NO. 197 CAPTAIN BAKER CONTACTED THE RESERVE AFFAIRS SECTION, HEADQUARTERS FOURTEENTH AIR FORCE, AND WAS ADVISED THAT HE WAS ON FLYING STATUS. THEREAFTER HE COMPLIED WITH FLIGHT REQUIREMENTS AND RECEIVED FLYING PAY UNTIL DECEMBER 1953. IT IS STATED THAT A COPY OF SPECIAL ORDERS NO. 221 WAS NOT RECEIVED BY THE OFFICER OR HIS UNIT NOR WAS A COPY FILED IN HIS 201 FILE. HOWEVER, A COPY OF SPECIAL ORDERS NO. 221 WAS SHOWN TO CAPTAIN BAKER AT HEADQUARTERS FOURTEENTH AIR FORCE ROTC, MONTGOMERY, ALABAMA, ON FEBRUARY 2, 1953, AT WHICH TIME RECEIPT OF THE ORDER WAS ACKNOWLEDGED BY HIM.

SPECIAL ORDERS NO. 63, HEADQUARTERS FOURTEENTH AIR FORCE, DATED APRIL 1, 1953, REVOKED THAT PART OF SPECIAL ORDERS NO. 221 WHICH IN TURN HAD REVOKED PARAGRAPHS 48 AND 49 OF SPECIAL ORDERS NO. 197 UNDER THE AUTHORITY OF WHICH CAPTAIN BAKER HAD RECEIVED FLYING PAY. FINALLY THERE IS FOR CONSIDERATION IN CAPTAIN BAKER'S CASE PERSONNEL ORDERS NO. 64, HEADQUARTERS FOURTEENTH AIR FORCE, DATED APRIL 30, 1953, PARAGRAPH 2 OF WHICH IS AS FOLLOWS:

"VOCG, 12 OCT 51, IS CFMD AND MADE A MATTER OF RCD, ERRONEOUS ORDERS HAVING BEEN PUBLISHED WHICH DID NOT ADEQUATELY REFLECT THE DECISION OF THE CG ON THAT DATE. SMOPERSONNEL ORDER 67 THIS HQ 8 JUN 51 PERTAINING TO OFFICERS SUSPENDED FROM FLYING STATUS AS RELATES TO CAPT LOVELL E BAKER AO2059930 DUTY STATION HQ & HQ SQ FOURTEENTH AF W/PERM DY STA AFROTC UNIT UNIVERSITY OF ALABAMA UNIVERSITY ALA ONLY IS HEREBY RESCINDED EFF 12 OCT 51. (AUTH: AFR 36-57 AND 3D IND HQ CONAC MPOC 201 BAKER, LOVELL E JR (0) 9 APR 53 TO LTR FR CAPT BAKER SUBJ: FLY STATUS 12 FEB 53.)"

IN THE SECOND PARAGRAPH OF YOUR LETTER REQUEST FOR DECISION IS MADE AS FOLLOWS:

"REFERENCE COMPTROLLER GENERAL B-110593 ET AL CONCERNING REQUIREMENT THAT VERBAL ORDERS MUST BE CONFIRMED WITHIN A REASONABLE TIME AFTER SUCH ORDERS ARE ISSUED, DECISION IS REQUESTED WHETHER PERSONNEL ORDER NO. 64, DATED 30 APRIL 1953 (PAR C BELOW) CONSTITUTES A VALID ORDER (PAR 4A, AFR 36-57 DATED 13 JAN 53 AND PAR 11103B, AFM 173-20). ***"

YOUR LETTER AND THE INFORMATION TRANSMITTED THEREWITH HAVE BEEN GIVEN CAREFUL CONSIDERATION BUT NOTHING HAS BEEN FOUND THEREIN INDICATING THAT THE EXIGENCIES OF THE SERVICE PRECLUDED THE ISSUANCE OF WRITTEN ORDERS ON OCTOBER 12, 1951, RESCINDING, EFFECTIVE THAT DATE, PERSONNEL ORDERS NO. 67, OR THAT THE DELAY IN CONFIRMING THE PURPORTED VERBAL ORDERS OF OCTOBER 12, 1951, WAS OCCASIONED BY EXIGENCIES OF THE SERVICE WHICH DID NOT PERMIT AN EARLIER CONFIRMATION OF SUCH ORDERS. UNDER THE CIRCUMSTANCES IT WOULD NOT APPEAR THAT THE CONFIRMATORY WRITTEN ORDERS OF APRIL 30, 1953, MORE THAN 18 MONTHS AFTER THE VERBAL ORDERS, WERE ISSUED WITHIN A REASONABLE TIME. IN CONNECTION WITH THE MATTER OF REMOVING A SUSPENSION FROM FLYING DUTY RETROACTIVELY THERE IS FOR CONSIDERATION PARAGRAPH 11.G.(4), CHAPTER 10, AIR FORCE MANUAL 30 3, AS FOLLOWS:

"WHETHER ORDER IS 'RESCINDED' OR 'REVOKED.' (SUSPENSION WILL BE 'RESCINDED,' IF THE SUSPENSION HAS BEEN IN EFFECT FOR THREE MONTHS OR MORE; SUSPENSION WILL BE 'REVOKED,' IF IT HAS BEEN IN EFFECT LESS THAN THREE MONTHS.) (SEE AFR 36-57)."

IN AIR FORCE REGULATION 36057, PARAGRAPH 3.E. DEFINES THE TERM "REVOKE" AS "THE METHOD USED TO REMOVE A SUSPENSION WHICH HAS BEEN IN EFFECT FOR A PERIOD OF THREE MONTHS OR LESS." AN OFFICER WHOSE SUSPENSION IS REMOVED WITHIN THREE MONTHS OF THE DATE THEREOF AND WHO OTHERWISE MEETS THE PRESCRIBED FLIGHT REQUIREMENTS MAY UNDER SUCH REGULATIONS BE ENTITLED TO INCENTIVE PAY FOR THE PERIOD OF SUSPENSION. HOWEVER, THE TERM "RESCIND" IS DEFINED IN PARAGRAPH 3.F. OF SUCH REGULATION AS "THE METHOD USED TO REMOVE A SUSPENSION WHICH HAS BEEN IN EFFECT FOR MORE THAN THREE MONTHS." THE REGULATION FURTHER PROVIDES THAT AN OFFICER WHOSE SUSPENSION EXCEEDS THREE MONTHS MAY BE ENTITLED TO INCENTIVE PAY ONLY FROM THE DATE OF REMOVAL OF THE SUSPENSION. IT IS APPARENT FROM THE FOREGOING THAT THE REFERRED-TO REGULATIONS PRECLUDE THE REVOCATION OR THE RETROACTIVE RESCESSION OF A SUSPENSION FROM FLYING DUTY WHERE SUCH SUSPENSION HAS, AS IN THE PRESENT CASE, BEEN IN EFFECT FOR A PERIOD OF MORE THAN THREE MONTHS.

IT APPEARS THAT THE PROVISION OF SPECIAL ORDERS NO. 197 OF OCTOBER 9, 1951, TO THE EFFECT THAT CAPTAIN BAKER WAS A PILOT ON FLYING STATUS, WAS INSERTED BECAUSE OF A LACK OF KNOWLEDGE ON THE PART OF THE ISSUING AUTHORITY THAT CAPTAIN BAKER HAD BEEN SUSPENDED FROM FLYING STATUS BY PERSONNEL ORDERS NO. 67. HOWEVER, THE SUSPENSION FROM FLYING STATUS CONTAINED IN PERSONNEL ORDERS NO. 67 PROVIDED THAT "SUSPENSION FROM FLYING STATUS IMPOSED BY THIS ORDER, TERMINATES ON DATE OFFICERS ARE RELIEVED FROM EAD ENTERED UPON PURSUANT TO SO CITED." TECHNICALLY CAPTAIN BAKER'S TOUR OF DUTY, TO WHICH SUCH SUSPENSION APPLIED, TERMINATED OCTOBER 11, 1951, AND A NEW DUTY COMMITMENT COMMENDED ON THE FOLLOWING DAY, OCTOBER 12. THIS OFFICE IS IN ACCORD WITH THE VIEW EXPRESSED IN FIRST INDORSEMENT OF DEPARTMENT OF THE AIR FORCE, HEADQUARTERS USAF, OF SEPTEMBER 8, 1953, TO COMMANDER, AIR FORCE FINANCE CENTER, DENVER, COLORADO, THAT IT CANNOT BE INFERRED THAT A MOMENTARY TECHNICAL RELEASE FROM DUTY SUCH AS OCCURRED IN CAPTAIN BAKER'S CASE WOULD OPERATE TO LIFT THE SUSPENSION OF FLYING DUTY. HOWEVER, SUCH FACT, CONSIDERED IN THE LIGHT OF THE EXPRESS PROVISIONS IN SPECIAL ORDERS NO. 197 THAT PILOT WAS ON FLYING STATUS, LENDS STRONG SUPPORT TO THE VIEW THAT THE SUSPENSION WAS REMOVED IN CAPTAIN BAKER'S CASE EFFECTIVE OCTOBER 12, 1951. APPARENTLY HEADQUARTERS FOURTEENTH AIR FORCE REGARDED THE SUSPENSION AS HAVING BEEN REMOVED BY SPECIAL ORDERS NO. 197, BECAUSE OTHERWISE IT WOULD HAVE BEEN UNNECESSARY TO HAVE ISSUED SPECIAL ORDERS NO. 221 REVOKING PERTINENT PORTIONS OF SPECIAL ORDERS NO. 197.

ACCORDINGLY, THE CONCLUSION IS WARRANTED THAT FOLLOWING OCTOBER 12, 1951, CAPTAIN BAKER MAY BE REGARDED AS HAVING BEEN IN A FLYING STATUS - THE SUSPENSION FROM SUCH STATUS HAVING BEEN REMOVED - AND THAT HE REMAINED IN SUCH STATUS UNTIL FEBRUARY 2, 1953, AT WHICH TIME HE RECEIVED KNOWLEDGE OF THE EXISTENCE OF SPECIAL ORDERS NO. 221 AND ACKNOWLEDGED RECEIPT OF THE SAME, WHICH, IN EFFECT, RESTORED THE SUSPENSION FROM FLYING DUTY. THE SUSPENSION CONTINUED THEREAFTER UNTIL THAT PART OF SPECIAL ORDERS NO. 221, EFFECTING THE SAID SUSPENSION, WAS REVOKED (RESCINDED) BY SPECIAL ORDERS NO. 63, APRIL 1, 1953. HENCE, FROM APRIL THROUGH DECEMBER 1953 IT WOULD APPEAR THAT THE OFFICER WAS IN A FLYING STATUS. PAYMENT OF INCENTIVE PAY FOR AVIATION DUTY FOR THE MONTH OF DECEMBER 1953 IS AUTHORIZED, IF OTHERWISE CORRECT. HOWEVER, ANY PAYMENTS OF FLYING PAY MADE FOR THE PERIOD FEBRUARY 2 TO APRIL 1, 1953, WERE ERRONEOUS AND SHOULD BE REFUNDED BY THE OFFICER.