B-125037, APRIL 16, 1968, 47 COMP. GEN. 553

B-125037, APRIL 16, 1968, 47 COMP. GEN. 553

PAY - AVIATION DUTY - EXCESS FLYING HOURS - SUSPENSION TIME EFFECT AN OFFICER OF THE UNIFORMED SERVICES WHO IS NOT SUBJECT TO MINIMUM FLIGHT REQUIREMENTS, UPON REMOVAL ON AUGUST 17, 1967 OF A DECEMBER 1, 1966 SUSPENSION FROM FLYING DUE TO A PHYSICAL DISQUALIFICATION WHICH OCCURRED AUGUST 4, 1966, NEVERTHELESS IS ELIGIBLE FOR THE INCENTIVE PAY PRESCRIBED BY SECTION 105 OF EXECUTIVE ORDER NO. 11157 FOR MEMBERS WHOSE FLYING SUSPENSION HAD BEEN REMOVED AND FLIGHT REQUIREMENTS SATISFIED, AND AN ADMINISTRATIVE REGULATION TO DENY FLIGHT PAY IF A SUSPENSION IS NOT REMOVED WITHIN EITHER THE 3-MONTH OR 5-MONTH PERIOD PRESCRIBED BY SECTION 104 WOULD BE INCONSISTENT WITH THIS VIEW. THEREFORE, THE MEMBER ENTITLED TO 5 MONTHS OF FLYING PAY SUBSEQUENT TO MONTH OF INCAPACITY, AUGUST 1966, HAVING BEEN PAID FOR 3 MONTHS, IS ENTITLED TO FLYING PAY FOR DECEMBER AND JANUARY, THE REMAINDER OF THE MAXIMUM PERIOD FOR WHICH EXCESS HOURS CAN APPLY.

TO MAJOR J. M. GRIFFITH, DEPARTMENT OF THE AIR FORCE, APRIL 16, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1967 (G60BAF), REQUESTING AN ADVANCE DECISION WHETHER, UNDER THE CIRCUMSTANCES DISCUSSED BELOW, MAJOR STEVEN J. CARBONARO, FV 1905377, IS ENTITLED TO FLYING PAY FOR DECEMBER 1966 AND JANUARY 1967, DURING WHICH PERIOD HE WAS UNDER SUSPENSION FROM FLYING STATUS WHICH WAS SUBSEQUENTLY REMOVED. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE UNDER DATE OF JANUARY 16, 1968, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-981 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT MAJOR CARBONARO (WHO IS NOT REQUIRED TO PERFORM MINIMUM FLIGHT REQUIREMENTS), WAS SUSPENDED FROM FLYING STATUS EFFECTIVE DECEMBER 1, 1966 (AERONAUTICAL ORDER 163, DATED DECEMBER 1, 1966), BECAUSE OF A PHYSICAL DISQUALIFICATION WHICH OCCURRED ON AUGUST 4, 1966, AND THAT THE SUSPENSION WAS REVOKED ON AUGUST 17, 1967 (AERONAUTICAL ORDER 90, DATED AUGUST 17, 1967). YOU STATE THAT THE 3 MONTH GRACE PERIOD STARTED FEBRUARY 1 AND EXPIRED APRIL 30, 1967.

IT IS REPORTED THAT FLIGHT PAY WAS STOPPED EFFECTIVE DECEMBER 1, 1966, BUT SINCE THE SUSPENSION HAS NOW BEEN REMOVED, YOU ASK WHETHER, IN VIEW OF OUR DECISION OF MAY 4, 1967, 46 COMP. GEN. 776, AND USAF INTERIM CHANGE NO. 11 TO THE DEPARTMENT OF DEFENSE MILITARY PAY AND ENTITLEMENTS MANUAL IMPLEMENTING THAT DECISION, THE MEMBER IS ENTITLED TO FLIGHT PAY FOR DECEMBER 1966 AND JANUARY 1967 WHICH YOU SAY REPRESENTS THE REMAINDER OF THE MAXIMUM PERIOD FOR WHICH EXCESS HOURS CAN BE APPLIED.

IN ADDITION, YOU ASK WHETHER OR NOT, IN ALL INSTANCES, ENTITLEMENT TO FLIGHT PAY EXISTS FOR THAT PERIOD OF A SUSPENSION FOR WHICH EXCESS FLYING HOURS ARE AVAILABLE FOR MEETING FLIGHT REQUIREMENTS PROVIDED THE SUSPENSION IS ULTIMATELY REMOVED.

IN TRANSMITTING YOUR REQUEST, THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, STATES THAT THERE IS DOUBT WHETHER THE INTENT OF OUR ANSWER TO QUESTION 6 CONTAINED IN COMMITTEE ACTION NO. 395 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES COMMITTEE, AS DISCUSSED AND ANSWERED IN 46 COMP. GEN. 776, WAS THAT MEMBERS NOT SUBJECT TO FLIGHT REQUIREMENTS SHOULD BE TREATED DIFFERENTLY THAN THOSE MEMBERS SUBJECT TO FLIGHT REQUIREMENTS.

THE VIEW IS EXPRESSED THAT SINCE THE DECISION DID NOT TAKE EXCEPTION TO RULE D (1), (2) AND (3) AS PROPOSED IN COMMITTEE ACTION NO. 395, IT HAD THE EFFECT OF ENDORSING RULE D (3) WHICH APPEARS TO BE INCONSISTENT WITH THE ANSWER TO QUESTION 4, PERTAINING TO MEMBERS SUBJECT TO FLIGHT REQUIREMENTS. TWO EXAMPLES ARE FURNISHED WHICH POINT OUT THE DIFFERENCES IN ENTITLEMENT BETWEEN MEMBERS REQUIRED TO MEET FLIGHT REQUIREMENTS (BASED ON THE ANSWER TO QUESTION 4 OF COMMITTEE ACTION NO. 395) AND THOSE NOT SUBJECT TO FLIGHT REQUIREMENTS (BASED ON RULE D (3) PROPOSED IN COMMITTEE ACTION 395).

SECTION 104 (A) OF EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964, AS AMENDED BY EXECUTIVE ORDER NO. 11292 DATED AUGUST 1, 1966, PROVIDES MINIMUM FLIGHT REQUIREMENTS FOR INCENTIVE (FLYING) PAY FOR MEMBERS ON ACTIVE DUTY OF 4 HOURS OF AERIAL FLIGHT DURING 1 CALENDAR MONTH WITH A PROVISO THAT ANY EXCESS HOURS FLOWN DURING THE IMMEDIATELY PRECEDING 5 CALENDAR MONTHS AND NOT ALREADY USED TO QUALIFY FOR INCENTIVE PAY MAY BE APPLIED TO SATISFY THE REQUIREMENT FOR THAT MONTH; 8 HOURS OF AERIAL FLIGHT DURING ANY 2 CONSECUTIVE MONTHS WHEN THE REQUIREMENTS DURING 1 CALENDAR MONTH HAVE NOT BEEN MET; AND 12 HOURS OF AERIAL FLIGHT DURING ANY 3 CONSECUTIVE MONTHS WHEN THE REQUIREMENTS DURING ANY 2 CONSECUTIVE CALENDAR MONTHS HAVE NOT BEEN MET.

UNDER THE PROVISIONS OF SECTION 110 OF EXECUTIVE ORDER NO. 11157, A MEMBER INCAPACITATED AS A RESULT OF AN AVIATION ACCIDENT IS DEEMED TO HAVE FULFILLED THE REQUIREMENTS FOR A PERIOD NOT TO EXCEED 3 MONTHS FOLLOWING THE DATE OF THE INCAPACITY. SECTION 105 OF EXECUTIVE ORDER NO. 11157 PRECLUDES ENTITLEMENT TO INCENTIVE PAY FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION, UNLESS SUCH SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 104 HAVE BEEN COMPLIED WITH.

MEMBERS NOT REQUIRED TO MEET MINIMUM FLIGHT REQUIREMENTS FOR FLYING PAY PURPOSES ARE THOSE MEMBERS (1) WHO HAVE HELD AERONAUTICAL RATINGS OR DESIGNATIONS FOR NOT LESS THAN 15 YEARS, OR WHOSE PARTICULAR ASSIGNMENT OUTSIDE THE UNITED STATES OR IN ALASKA MAKES IT IMPRACTICAL TO PARTICIPATE IN REGULAR AERIAL FLIGHTS. SEE, FOR EXAMPLE, SECTION 614 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1968, PUBLIC LAW 90-96, APPROVED SEPTEMBER 29, 1967, 81 STAT. 231, 244, AND OTHER SIMILAR PROVISIONS OF LAW.

IN QUESTION 4 OF COMMITTEE ACTION NO. 395, THERE WAS INVOLVED THE MATTER WHETHER THE MEMBER WAS ENTITLED TO FLYING PAY WHERE THE SUSPENSION FROM FLYING WAS REMOVED AFTER EXPIRATION OF BOTH THE PARTIAL PERIOD COVERED BY PRIOR FLIGHTS AND THE SUCCEEDING 3-MONTH GRACE PERIOD FOR MEETING FLIGHT REQUIREMENTS. THE MEMBER THERE INVOLVED FLEW 12 HOURS IN JANUARY, HE WAS SUSPENDED FROM FLYING ON FEBRUARY 1, AND THE SUSPENSION WAS REMOVED ON JULY 1. THE QUESTION WAS ASKED WHETHER HE WAS ENTITLED TO FLYING PAY FOR FEBRUARY AND MARCH.

IN ANSWERING QUESTION 4 IN THE AFFIRMATIVE, WE POINTED OUT THAT IT DOES NOT APPEAR THAT SECTION 105 OF EXECUTIVE ORDER NO. 11157 REQUIRES THAT MINIMUM FLIGHT REQUIREMENTS BE MET FOR THE ENTIRE PERIOD OF THE SUSPENSION, AFTER SUCH SUSPENSION IS REMOVED, BUT ONLY THAT "THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED IN SECTION 104 HEREOF HAVE BEEN COMPILED WITH.' WE CONCLUDED THAT SINCE, IN QUESTION 4, THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED BY SECTION 104 WERE MET FOR FEBRUARY AND MARCH, THE MEMBER WAS ENTITLED TO FLYING PAY FOR THOSE MONTHS WHEN THE SUSPENSION WAS REMOVED ON JULY 1.

RULED AS PROPOSED IN COMMITTEE ACTION NO. 395, PERTAINING TO MEMBERS INCAPACITATED AND NOT SUBJECT TO MINIMUM FLIGHT REQUIREMENTS, READS AS FOLLOWS:

D. INCAPACITATION OF MEMBERS NOT SUBJECT TO MINIMUM FLIGHT REQUIREMENTS. THESE MEMBERS ARE ENTITLED TO FLYING PAY DURING A PERIOD OF INCAPACITY ACCORDING TO THE SAME MAXIMUM PERIOD OF ENTITLEMENT THAT COULD EXIST IN THE CASE OF A MEMBER WHO IS SUBJECT TO MINIMUM FLIGHT REQUIREMENTS. UNDER THIS PRINCIPLE:

(1) ENTITLEMENT EXISTS FOR UP TO FIVE MONTHS FOLLOWING THE MONTH OF INCAPACITY (THIS CORRESPONDS WITH THE MAXIMUM PERIOD FOR WHICH FLIGHTS CAN BE APPLIED PROSPECTIVELY UNDER SECTION 104A (1), OF EXECUTIVE ORDER 11157, AS AMENDED BY EXECUTIVE ORDER 11292. IT INCLUDES THE THREE-MONTH PERIOD PROVIDED IN SECTION 110 WHEN THE INCAPACITY IS A RESULT OF PERFORMING HAZARDOUS DUTY).

(2) ENTITLEMENT MAY ALSO EXIST FOR AN ADDITIONAL THREE MONTHS PROVIDED THE MEMBER IS AGAIN PHYSICALLY QUALIFIED FOR FLYING DUTY BEFORE THE END OF SUCH THREE-MONTH PERIOD (THIS CORRESPONDS WITH THE THREE-MONTH PERIOD AUTHORIZED IN SECTION 104A, EXECUTIVE ORDER 11157, FOR MEETING FLIGHT REQUIREMENTS).

(3) ENTITLEMENT STOPS IN ANY CASE UPON SUSPENSION FROM FLYING STATUS. ENTITLEMENT IS RESTORED FOR THE PERIOD OF SUSPENSION IF THE MEMBER BECOMES PHYSICALLY QUALIFIED AND SUSPENSION IS REMOVED WITHIN EITHER OF THE PERIODS PROVIDED IN (1) AND (2) ABOVE. OTHERWISE, FLYING PAY IS LOST FOR THE PERIOD OF SUSPENSION. IT CANNOT START AGAIN UNTIL THE MEMBER IS RESTORED TO FLYING STATUS. THE ABOVE RULE D (3) HAS THE EFFECT, AS WE UNDERSTAND IT, OF DENYING FLYING PAY TO A MEMBER FOR THE PERIOD OF SUSPENSION UNLESS THE SUSPENSION IS REMOVED WITHIN EITHER THE 3-MONTH GRACE PERIOD AUTHORIZED IN SECTION 104 (A) (3) OF EXECUTIVE ORDER NO. 11157 OR THE 5-MONTH PERIOD AUTHORIZED IN SECTION 104 (A) (1) OF THE SAME EXECUTIVE ORDER AS AMENDED BY EXECUTIVE ORDER NO. 11292. IT IS OUR VIEW, HOWEVER, THAT THE PROVISION IN SECTION 105 OF EXECUTIVE ORDER NO. 11157 RELATING TO REMOVAL OF A SUSPENSION FROM FLYING APPLIES EQUALLY TO MEMBERS REQUIRED TO MEET FLYING REQUIREMENTS AND THOSE NOT REQUIRED TO MEET SUCH REQUIREMENTS. AN ADMINISTRATIVE REGULATION SUCH AS THAT PROPOSED IN THE ABOVE-QUOTED RULE D (3) IS INCONSISTENT WITH THAT VIEW AND OUR ANSWER TO QUESTION 4 IN 46 COMP. GEN. 776.

ACCORDINGLY, SINCE A MEMBER NOT REQUIRED TO MEET FLIGHT REQUIREMENTS IS CONSIDERED AS HAVING MET THOSE REQUIREMENTS FOR FLYING PAY PURPOSES, AND SINCE THE MEMBER IN YOUR SUBMISSION WAS PAID FLYING PAY FOR AUGUST (MONTH OF INCAPACITY), SEPTEMBER, OCTOBER, AND NOVEMBER 1966, HE WAS ENTITLED TO FLYING PAY, AFTER REMOVAL OF THE SUSPENSION ON AUGUST 17, 1967, FOR THE REMAINING 2 MONTHS, NAMELY, DECEMBER 1966 AND JANUARY 1967, OF THE MAXIMUM PERIOD FOR WHICH HE WOULD OTHERWISE BE ENTITLED (5 MONTHS FOLLOWING THE MONTH OF INCAPACITY). THE MILITARY PAY ORDER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND THE OFFICER MAY BE CREDITED WITH FLYING PAY FOR THOSE 2 MONTHS, IF OTHERWISE CORRECT.

IN OTHER WORDS, IT IS CONCLUDED THAT ENTITLEMENT TO FLYING PAY EXISTS FOR THAT PERIOD OF THE SUSPENSION, WHEN REMOVED FOR WHICH EXCESS FLIGHT HOURS MAY BE VIEWED AS BEING OTHERWISE AVAILABLE EVEN THOUGH THE MEMBER IS NOT REQUIRED TO MEET FLIGHT REQUIREMENTS. YOUR QUESTION IS ANSWERED ACCORDINGLY.