B-125327, DEC. 14, 1955

B-125327, DEC. 14, 1955

TO MR. KENNETH E. FULTON:

REFERENCE IS MADE TO YOUR CLAIM DATED JULY 12, 1954, FOR ADDITIONAL PAY FOR FLYING DUTY BELIEVED TO BE DUE FOR THE PERIOD JUNE 1 THROUGH AUGUST 31, 1945, WHILE A STAFF SERGEANT, ARMY OF THE UNITED STATES. SINCE A SIMILAR CLAIM FOR THE PERIOD JULY 1 THROUGH SEPTEMBER 30, 1945,WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED JANUARY 5, 1959, YOUR PRESENT CLAIM IS CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

IT IS YOUR APPARENT CONTENTION THAT ALTHOUGH MINIMUM FLIGHT REQUIREMENTS WERE NOT MET FOR THE PERIOD OF YOUR CLAIM, YOU ARE NEVERTHELESS ENTITLED TO FLIGHT PAY BECAUSE YOU WERE EXCUSED THEREFROM BY REASON OF "FLYING FATIGUE.' IN SUPPORT OF YOUR CONTENTION YOU HAVE AGAIN SUBMITTED THE CERTIFICATE OF THE FLIGHT SURGEON RECITING THAT YOU "SUFFERED NO CONSEQUENTIAL ILLNESS OR ACCIDENTS" AND THAT YOU WERE "GROUNDED BECAUSE OF FLYING FATIGUE AT THE TIME HE (YOU) DEPARTED FROM THIS THEATER" (SOUTH PACIFIC).

IT APPEARS THAT FOR THE PERIOD DECEMBER 4, 1944, THROUGH JUNE 15, 1945, YOU WERE ATTACHED TO THE 499TH BOMBARDMENT SQUADRON, 345TH BOMBARDMENT GROUP, APO 74, IN A PERMANENT FLYING STATUS; THAT ON JUNE 1, 1945, YOUR PRIOR ORDERS WERE REVOKED AND NEW ORDERS ISSUED CONTINUING YOU IN A FLYING STATUS. IT FURTHER APPEARS THAT DURING THE FIVE-MONTH PERIOD ENDING MAY 29, 1945, YOU COMPLETED 50 COMBAT MISSIONS TOTALLING IN EXCESS OF 281 COMBAT HOURS. THE RECORD ALSO SHOWS THAT ON JUNE 16, 1945, YOU WERE TRANSFERRED TO HEADQUARTERS 22ND REPLACEMENT DEPOT, RETURNED TO THE UNITED STATES ON JULY 27, 1945, AND DISCHARGED ON OCTOBER 17, 1945, BY REASON OF DEMOBILIZATION. IT DOES NOT APPEAR THAT YOU PERFORMED THE MINIMUM FLIGHT REQUIREMENTS FOR ADDITIONAL PAY FOR FLYING FOR ANY PERIOD AFTER MAY 1945, AND HENCE YOU WERE NOT ENTITLED TO SUCH PAY UNLESS YOU FELL WITHIN THE PROVISO OF PARAGRAPH 10 EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, WHICH STATED:

"* * * THAT ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF COMPETENT AUTHORITY AND WHO AS A RESULT OF SUCH ORDERS HAS PARTICIPATED REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT * * *.'

UNDER PARAGRAPH 1 (H) OF THE EXECUTIVE ORDER, THE TERM "AVIATION ACCIDENT" IS DEFINED AS FOLLOWS:

"THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT OR AS THE RESULT OF JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF, OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.'

WHILE IT HAS BEEN HELD THAT EXHAUSTION FROM OVEREXERTION MAY, UNDER PROPER CONDITIONS, WHEN ATTESTED TO BY APPROPRIATE MEDICAL AUTHORITY, BE ACCEPTED AS AN "INJURY" RESULTING FROM AN ,AVIATION ACCIDENT" AND THUS WITHIN THE PURVIEW OF THE LAST-QUOTED PARAGRAPH OF THE EXECUTIVE ORDER AND HENCE SUFFICIENT TO EXCUSE AN OFFICER OR ENLISTED MAN FROM PERFORMING THE MINIMUM AERIAL FLIGHTS AND STILL ENTITLE HIM TO AVIATION PAY FOR A PERIOD OF THREE MONTHS FOLLOWING THE ,AVIATION ACCIDENT," THERE IS NO DEFINITE SHOWING FROM THE FACTS OF RECORD THAT YOUR DISABILITY WAS THE RESULT OF AN "AVIATION ACCIDENT" AS THAT TERM IS DEFINED IN THE SAID EXECUTIVE ORDER.

THE CERTIFICATE WHICH YOU HAVE SUBMITTED DOES NOT STATE THAT YOU WERE SUFFERING FROM EXHAUSTION OR THAT YOU WERE SUFFERING FROM ANXIETY FATIGUE CAUSED BY YOUR COMBAT MISSIONS, NOR HAS THE DEPARTMENT OF THE ARMY BEEN ABLE TO FIND A CLINICAL RECORD STATING THAT THAT CONDITION EXISTED AND WAS THE CAUSE OF YOUR "GROUNDING.' THE CERTIFICATE FURNISHED IS ENTIRELY CONSISTENT WITH THE VIEW THAT YOUR GROUNDING AND RETURN TO THE UNITED STATES WAS ROUTINE, UPON THE COMPLETION OF 50 COMBAT MISSIONS.

THE FACT THAT PAYMENT OF ADDITIONAL PAY FOR FLYING MAY HAVE BEEN MADE TO OTHER ENLISTED MEN UNDER SIMILAR CIRCUMSTANCES, WHICH PAYMENT MAY HAVE BEEN ERRONEOUS, AFFORDS NO JUSTIFICATION OR LEGAL AUTHORITY FOR AUTHORIZING PAYMENT TO YOU AT THIS TIME.

ON THE BASIS OF THE INFORMATION BEFORE OUR OFFICE, YOUR CLAIM FOR ADDITIONAL PAY FOR FLYING FOR THE PERIOD FROM JUNE THROUGH AUGUST, 1945, MUST BE DENIED.