B-122727, MAY 31, 1955, 34 COMP. GEN. 636

B-122727, MAY 31, 1955, 34 COMP. GEN. 636

PAY - ADDITIONAL - AVIATION DUTY - COURSES OF AERIAL INSTRUCTION - PERIODS BETWEEN COURSES ARMY OFFICER WHO WAS ORDERED TO ARMY AVIATION SCHOOL FOR A COURSE OF INSTRUCTION, WITH TEMPORARY DUTY EN ROUTE FOR THE PURPOSE OF ATTENDING A PRIMARY FLIGHT TRAINING CLASS WHERE HE WAS ORDERED TO PARTICIPATE IN FREQUENT AND REGULAR FLIGHTS AS A CREW MEMBER UNTIL GRADUATION, IS NOT ENTITLED TO INCENTIVE PAY FOR AERIAL FLIGHTS FOR THE INTERIM PERIOD BETWEEN GRADUATION FROM THE PRIMARY TRAINING CLASS AND THE DATE OF THE SECOND COURSE OF INSTRUCTION, NOTWITHSTANDING ORDERS ISSUED AFTER OFFICER ARRIVED AT ARMY AVIATION SCHOOL WHICH PURPORTED TO AUTHORIZE FLIGHTS FOR PERIOD PRIOR THERETO.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO CAPTAIN J. I. PERRY, DEPARTMENT OF THE ARMY, MAY 31, 1955:

BY FOURTH ENDORSEMENT DATED JANUARY 24, 1955, THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF DECEMBER 1, 1954, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION A MILITARY PAY ORDER TO ADJUST THE ACCOUNT OF LIEUTENANT ROBERT D. ANDERSON ( INFANTRY), SERVICE NO. XXX-XX-XXXX, FOR INCENTIVE PAY FOR AERIAL FLIGHTS FOR THE PERIOD SEPTEMBER 11 TO OCTOBER 17, 1954.

BY PARAGRAPH 8, SPECIAL ORDERS NO. 54, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED MARCH 18, 1954, LIEUTENANT ANDERSON WAS RELEASED FROM DUTY AT FORT BRAGG, NORTH CAROLINA, AND ASSIGNED TO THE STUDENT OFFICERS COMPANY, ARMY AVIATION SCHOOL, FORT SILL, OKLAHOMA, FOR THE PURPOSE OF ATTENDING SUCH SCHOOL FOR A PERIOD OF APPROXIMATELY 13 WEEKS, REPORTING ON SEPTEMBER 12, 1954. THOSE ORDERS DIRECTED TEMPORARY DUTY EN ROUTE AT GARY AIR FORCE BASE, SAN MARCOS, TEXAS, FOR THE PURPOSE OF ATTENDING THE ARMY PRIMARY FLIGHT TRAINING CLASS OF APPROXIMATELY 18 WEEKS, THE REPORTING DATE FOR SUCH DUTY BEING MAY 17, 1954. BY PARAGRAPH 1, AERONAUTICAL ORDERS NO. 113, HEADQUARTERS 3585TH PILOT TRAINING WING, GARY AIR FORCE BASE, TEXAS, DATED MAY 20, 1954, LIEUTENANT ANDERSON WAS REQUIRED TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AS A CREW MEMBER, IT BEING STATED THAT SUCH ORDER WAS EFFECTIVE FOR THE PERIOD MAY 20, 1954, TO DATE OF GRADUATION FROM "THIS" COURSE UNLESS SOONER RELIEVED. BY PARAGRAPH 1 OF SPECIAL ORDERS NO. 211, HEADQUARTERS ARMY AVIATION SCHOOL, CAMP RUCKER, ALABAMA (FORMERLY LOCATED AT FORT SILL, OKLAHOMA), DATED NOVEMBER 5, 1954, CONFIRMING VERBAL ORDERS OF THE COMMANDING GENERAL OF OCTOBER 18, 1954, LIEUTENANT ANDERSON WAS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN TRAINING AERIAL FLIGHTS UNTIL COMPLETION OF COURSE OF INSTRUCTION OR RELIEF FROM COURSE OF INSTRUCTION BY COMPETENT AUTHORITY. THOSE ORDERS FURTHER PROVIDED IN PARAGRAPH 2 THAT, THE EXIGENCIES OF THE SERVICE BEING SUCH AS TO PRECLUDE THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE, THE OFFICER WAS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN TRAINING AERIAL FLIGHTS DURING THE PERIOD SEPTEMBER 11 TO OCTOBER 17, 1954.

UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AND SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY ARE ALSO ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS REQUIRED BY COMPETENT ORDERS. EXECUTIVE ORDER NO. 10152, DATED AUGUST 17, 1950, PROMULGATING REGULATIONS RELATING TO THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, PROVIDES IN PART AS FOLLOWS:

SEC. 2. UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, ANY MEMBER OF THE UNIFORMED SERVICES, INCLUDING MEMBERS ASSIGNED TO SPECIAL, ADMINISTRATIVE, OR SCHOOL DUTIES, MAY BE REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY.

SEC. 11. MEMBERS REQUIRED BY COMPETENT ORDERS TO PERFORM HAZARDOUS DUTY SHALL, UPON COMPLIANCE WITH THE REQUIREMENTS OF THESE REGULATIONS, BE ENTITLED TO RECEIVE INCENTIVE PAY DURING AUTHORIZED LEAVES OF ABSENCE.

PARAGRAPH 3A OF THE ARMY REGULATIONS 35-1200 DATED FEBRUARY 8, 1951, DEFINES INCENTIVE PAY AS ADDITIONAL PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS AS DEFINED IN PARAGRAPH 3D. PARAGRAPH 3F OF THAT REGULATION PROVIDES THAT ANY OFFICER, WARRANT OFFICER, OR ENLISTED MEMBER, WHO IS ASSIGNED TO A COURSE OF INSTRUCTION FOR QUALIFICATION AS A RATED PILOT, DESIGNATED ARMY AVIATOR, OR A RATED AIRCRAFT OBSERVER, ARE DEEMED TO BE CREW MEMBERS. SPECIAL REGULATIONS NO. 605-95-1, AS CHANGED BY CHANGES NO. 2 DATED DECEMBER 3, 1951, PROVIDES IN PART AS FOLLOWS:

7. TRAINING.--- IN ACCORDANCE WITH * * * COURSES ARE ESTABLISHED:

A. REGULAR COURSE.--- THIS COURSE IS * * * PHASES, AS FOLLOWS:

(1) PHASE I--- AIR FORCE LIAISON PILOT COURSE.--- THIS COURSE IS CONDUCTED BY THE UNITED STATES AIR FORCE AT SAN MARCOS AIR FORCE BASE, SAN MARCOS, TEXAS, TO TRAIN STUDENT AVIATION OFFICERS TO OPERATE LIAISON-TYPE AIRCRAFT.

(2) PHASE II--- ARMY AVIATION TACTICS COURSE.--- ( SUPERSEDED) THIS COURSE IS CONDUCTED BY THE COMMANDANT, THE ARTILLERY SCHOOL, FORT SILL, OKLAHOMA, TO QUALIFY STUDENT OFFICERS WHO HAVE SUCCESSFULLY COMPLETED PHASE I TO BE ARMY AVIATORS BY TRAINING THEM TO OPERATE ARMY AIRCRAFT IN THE PERFORMANCE OF ARMY AVIATION MISSIONS WHICH THEY WILL BE REQUIRED TO PERFORM WHEN ASSIGNED TO ARMY UNITS IN THE FIELD. TO BE ELIGIBLE FOR THIS COURSE, REGULAR AND RESERVE COMPONENT OFFICERS IN THE ACTIVE MILITARY SERVICE MUST HAVE SUCCESSFULLY COMPLETED PHASE I * * *

13B. STUDENT AVIATION OFFICERS.

(1) THE COMMANDANT, THE ARTILLERY SCHOOL, IS AUTHORIZED TO ISSUE TEMPORARY FLYING STATUS ORDERS TO STUDENT AVIATION OFFICERS ASSIGNED TO UNDERGO A COURSE OF INSTRUCTION IN ARMY AVIATION OPERATION, REGARDLESS OF DUTY STATUS (ACTIVE OR INACTIVE); HOWEVER, THESE ORDERS WILL BE EFFECTIVE ONLY FOR THE DURATION OF SUCH COURSE AND WILL BE SO WORDED.

IN DECISION OF FEBRUARY 16, 1922, 1 COMP. GEN. 431, NOTED BY YOU, CONCERNING AN OFFICER WHILE IN TRANSIT BETWEEN STATIONS, IT WAS HELD THAT AN OFFICER CONTINUOUSLY ASSIGNED TO DUTY REQUIRING HIM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS ENTITLED TO THE AVIATION INCREASE OF PAY DURING THE TIME NECESSARILY SPENT IN TRAVELING OTHERWISE THAN BY AIR ON A CHANGE OF STATION, IF DURING THE CALENDAR MONTH IN WHICH TRAVEL IS PERFORMED, OR IN THE SUCCEEDING CALENDAR MONTH HE HAS PARTICIPATED IN THE NUMBER OF FLIGHTS REQUIRED BY EXISTING REGULATIONS. ALTHOUGH IT IS NOT SO STATED IN YOUR REQUEST FOR DECISION, PRESUMABLY LIEUTENANT ANDERSON WAS ON AUTHORIZED LEAVE DURING THE PERIOD SEPTEMBER 11 TO AT LEAST OCTOBER 9, 1954, WHEN HE REPORTED TO CAMP RUCKER. HOWEVER, THAT MAY BE, THE ORDERS OF MAY 20, 1954, DIRECTING FREQUENT AND REGULAR FLIGHTS, PROVIDED THAT SUCH ORDERS WERE EFFECTIVE FOR THE PERIOD MAY 20, 1954, TO DATE OF GRADUATION FROM "THIS" COURSE. IT SEEMS CLEAR THAT THE COURSE MENTIONED WAS THE COURSE CONDUCTED AT SAN MARCOS, TEXAS, AND HENCE, THE ORDERS WOULD COVER THE PERIOD MAY 20, 1954, TO SEPTEMBER 10, 1954, DATE OF GRADUATION FROM THAT COURSE. SUCH A LIMITATION ON THE EFFECTIVE PERIOD OF THE ORDERS SEEMS PROPER AND REQUIRED SINCE THERE WOULD APPEAR TO BE NO BASIS FOR DIRECTING FLIGHTS BY STUDENTS FOR A PERIOD OF LEAVE OR DUTY BETWEEN TWO COURSES OF INSTRUCTION SUCH AS HERE INVOLVED. SEE PARAGRAPH 13B, SPECIAL REGULATIONS NO. 605-95-1. ON THE SAME BASIS, THE ORDERS OF NOVEMBER 5, 1954, MAY NOT BE VIEWED AS REQUIRING FLIGHTS PRIOR TO OCTOBER 18, 1954, APPARENTLY THE BEGINNING DATE FOR THE SECOND COURSE OF INSTRUCTION.

ACCORDINGLY, IT IS CONCLUDED THAT LIEUTENANT ANDERSON IS NOT ENTITLED TO INCENTIVE PAY FOR AERIAL FLIGHTS AS A STUDENT OFFICER DURING THE PERIOD SEPTEMBER 11 TO OCTOBER 17, 1954. PAYMENT ON THE MILITARY PAY ORDER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.