B-122105, APR 12, 1955
Highlights
YOU REQUEST A DECISION AS TO WHETHER ADDITIONAL PAY FOR FLYING IS PROPER FOR INCLUSION IN THE RATE RECEIVED BY THE OFFICER AT THE DATE OF HIS DEATH WITHIN THE MEANING OF THE ACT OF DECEMBER 17. HE WAS SUSPENDED FROM FLYING STATUS EFFECTIVE THAT DATE. IN THE LETTER FROM THE DEPUTY DIRECTOR OF FINANCE DOUBT IS EXPRESSED AS TO WHETHER THAT REGULATION REFLECTS THE TRUE INTENT OF THE SIX MONTHS' DEATH GRATUITY PAY STATUTE WHERE THE MEMBER IS UNDER SUSPENSION FROM FLYING AT THE DATE OF DEATH. " UNLESS SUCH SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 4 HAVE BEEN COMPLIED WITH. THE PROVISIONS OF SECTION 10 ARE NOT PERTINENT TO THE MATTER HERE INVOLVED.
B-122105, APR 12, 1955
PRECIS-UNAVAILABLE
CAPTAIN T.R. WINTER, DEPARTMENT OF THE AIR FORCE:
THE DEPUTY DIRECTOR OF FINANCE, BY LETTER OF OCTOBER 12, 1954, FORWARDED TO US YOUR LETTER OF AUGUST 31, 1954, ENCLOSING A VOUCHER IN THE SUM OF $1,080, REPRESENTING SIX MONTHS' DEATH GRATUITY PAY (FLYING PAY ONLY) IN THE CASE OF A DECEASED OFFICER, LIEUTENANT COLONEL EDWARD NORTON SCHWARTZ. YOU REQUEST A DECISION AS TO WHETHER ADDITIONAL PAY FOR FLYING IS PROPER FOR INCLUSION IN THE RATE RECEIVED BY THE OFFICER AT THE DATE OF HIS DEATH WITHIN THE MEANING OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903.
ON AUGUST 4, 1954, LIEUTENANT COLONEL SCHWARTZ ENTERED THE HOSPITAL AT MOODY AIR FORCE BASE, VALDOSTA, GEORGIA, DUE TO A HEART ATTACK. PARAGRAPH 1, MOODY AIR FORCE BASE AERONAUTICAL ORDERS NO. 136, DATED AUGUST 4, 1954, HE WAS SUSPENDED FROM FLYING STATUS EFFECTIVE THAT DATE, UNDER THE PROVISIONS OF PARAGRAPH 9G, AIR FORCE REGULATIONS 36 57, BY REASON OF PHYSICAL DISQUALIFICATION FOR FLYING DUTY. HE DIED ON AUGUST 9, 1954. SETTLEMENT OF THE SIX MONTHS' DEATH GRATUITY PAY, EXCLUSIVE OF FLIGHT PAY, HAS BEEN MADE. YOU QUESTION WHETHER AN AMOUNT REPRESENTING FLYING PAY MAY BE INCLUDED IN THE GRATUITY INASMUCH AS PARAGRAPH 61212F, AIR FORCE MANUAL 173-20, APPEARS TO PRECLUDE PAYMENT. IN THE LETTER FROM THE DEPUTY DIRECTOR OF FINANCE DOUBT IS EXPRESSED AS TO WHETHER THAT REGULATION REFLECTS THE TRUE INTENT OF THE SIX MONTHS' DEATH GRATUITY PAY STATUTE WHERE THE MEMBER IS UNDER SUSPENSION FROM FLYING AT THE DATE OF DEATH.
THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, PROVIDES THAT UPON THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN OF THE ARMY OR AIR FORCE, THERE SHALL BE PAID AN AMOUNT EQUAL TO SIX MONTHS' PAY "AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH." SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, 810, PROVIDES THAT SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTIES REQUIRED BY COMPETENT ORDERS, INCLUDING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS. EXECUTIVE ORDER 10152, AUGUST 17, 1950, PROVIDES (PARAGRAPH 5) THAT 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 HAVE BEEN COMPLIED WITH, EXCEPT AS OTHERWISE PROVIDED IN SECTION 10. THE PROVISIONS OF SECTION 10 ARE NOT PERTINENT TO THE MATTER HERE INVOLVED. PARAGRAPH 61212F, AIR FORCE MANUAL 173-20, MAY 15, 1953, PROVIDES THAT IF "A MEMBER DIES WHILE ASSIGNED TO FLYING DUTY AND HAS NOT MADE ANY FLIGHTS DURING THE 3 MONTHS SUCCEEDING THE QUARTER IN WHICH HE LAST COMPLIED WITH THE FLIGHT REQUIREMENTS, HIS RATE OF PAY FOR THE SIX MONTHS' DEATH GRATUITY INCLUDES THE INCREASED PAY FOR FLYING, ALTHOUGH NO FLYING PAY HAD ACCRUED TO HIM ON THE DATE OF HIS DEATH AND PROVIDED THAT HE HAD NOT BEEN INDEFINITELY SUSPENDED FROM FLYING ON THAT DATE." THAT PROVISION, EXCEPT FOR THE QUOTED PORTION STARTING WITH THE WORD "PROVIDED", IS SHOWN TO HAVE BEEN BASED ON DECISION OF FEBRUARY 14, 1928, 7 COMP. GEN. 476. BEING BASED ON THAT DECISION, IT IS ASSUMED THAT THE REGULATION IS APPLIED SO AS TO PERMIT FLYING PAY TO BE INCLUDED AS A PART OF THE SIX MONTHS' DEATH GRATUITY ONLY IN THOSE CASES WHERE DEATH OCCURS WITHIN THE THREE MONTHS FOLLOWING THE END OF A MONTH FOR WHICH THE DECEASED MET THE FLIGHT REQUIREMENTS PRESCRIBED. ALSO, THE SITUATIONS COVERED BY THE REGULATION AND THE DECISION - SITUATIONS INVOLVING OFFICERS UNDER ORDERS TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS - MUST BE DISTINGUISHED FROM THE SITUATION INVOLVED IN THE PRESENT CASE WHERE, ON THE DATE OF THE OFFICER'S DEATH, HIS ORDERS TO AVIATION DUTY HAD BEEN SUSPENDED. THE OFFICER INVOLVED IN THE DECISION WAS IN A FLYING PAY STATUS, ESSENTIAL TO A RIGHT TO FLIGHT PAY, WHEN HE DIED, EVEN THOUGH HE HAD NOT YET COMPLETED ACTUAL FLYING REQUIREMENTS FOR THE CURRENT PERIOD. THE OFFICER HERE INVOLVED HAD BEEN SUSPENDED FROM FLYING AND WAS NOT EVEN IN A FLYING PAY STATUS WHEN HE DIED.
PARAGRAPH 9G, AIR FORCE REGULATIONS 36-57, JANUARY 13, 1953, PROVIDES THAT THE COMMANDING OFFICER OF AN AIR FORCE BASE OR TACTICAL UNIT WILL SUSPEND ANY OFFICER ASSIGNED OR ATTACHED FOR FLYING WHO IS PHYSICALLY DISQUALIFIED FOR FLYING DUTY, EXCEPT WHEN THE INJURY OR INCAPACITATION IS A RESULT OF AN AVIATION ACCIDENT. THE EXCEPTION IS NOT HERE INVOLVED. MEMBER IS NOT ENTITLED TO ADDITIONAL PAY FOR FLYING WHEN SUSPENDED FROM FLYING DUTY AND, HENCE, WHEN A MEMBER DIES WHILE UNDER SUCH SUSPENSION, PAY FOR FLYING SHOULD NOT BE INCLUDED IN THE RATE OF PAY AT DATE OF DEATH FOR THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY.
THE VOUCHER WILL BE RETAINED HERE.