B-129455, NOV. 23, 1956

B-129455, NOV. 23, 1956

TO MR. MAX H. HOTOP, JR.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 12, 1956, WHICH DISALLOWED YOUR CLAIM FOR INCENTIVE PAY FOR FLIGHT DUTY FOR THE PERIOD MARCH THROUGH JUNE 1954, INCIDENT TO YOUR SERVICE IN THE ARMY OF THE UNITED STATES. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT NO ORDERS WERE ISSUED TO YOU REQUIRING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS FOR THE PERIOD OF YOUR CLAIM.

IT APPEARS THAT BY LETTER DATED FEBRUARY 2, 1954, THE CHIEF, METEOROLOGICAL BRANCH, EVANS SIGNAL LABORATORY, DIRECTED A REQUEST, THROUGH CHANNELS, TO THE ADJUTANT GENERAL, WASHINGTON, .C., THAT YOU BE PLACED ON FLYING STATUS AS A NON-CREW MEMBER, IN VIEW OF THE NATURE OF YOUR DUTIES AT THAT STATION. IT WAS STATED THAT YOU WOULD PARTICIPATE IN COMPREHENSIVE FLIGHT TESTS OF CERTAIN EQUIPMENT AND IT WAS CONTEMPLATED THAT THE TESTS WOULD CONTINUE FOR AT LEAST ONE YEAR.

ON SEPTEMBER 28, 1954, THE CHIEF, METEOROLOGICAL BRANCH, INITIATED AN INQUIRY AS TO THE DISPOSITION OF THE REQUEST OF FEBRUARY 2, 1954, AND WAS INFORMED THAT NO RECORD COULD BE FOUND OF THE ORIGINAL CORRESPONDENCE BEING FORWARDED. A NEW REQUEST WAS PROCESSED AND FORWARDED ON OCTOBER 4, 1954. ON MARCH 3, 1955, THE ADJUTANT GENERAL, BY ORDER OF THE SECRETARY OF THE ARMY, CONFIRMED THE VERBAL ORDERS OF THE CHIEF OF STAFF, U.S. ARMY, OF NOVEMBER 1, 1954, WHICH REQUIRED YOU TO PARTICIPATE REGULARLY AND FREQUENTLY IN OPERATIONAL AERIAL FLIGHTS AS A NON-CREW MEMBER IN CONNECTION WITH YOUR ASSIGNMENT AND DUTY, DURING THE PERIOD NOVEMBER 1, 1954, TO JUNE 30, 1955. NO ACTION WAS TAKEN UPON THE ORIGINAL REQUEST OF FEBRUARY 2, 1954. IT FURTHER APPEARS THAT YOU ACCUMULATED 10 HOURS, 40 MINUTES FLIGHT TIME IN MARCH 1954, AND 10 HOURS AND 55 MINUTES FLIGHT TIME IN JUNE 1954, IN CONNECTION WITH EQUIPMENT TESTS.

YOU SAY THAT YOU ARE WELL AWARE OF THE FACT THAT NO ORDERS WERE ISSUED FOR FLIGHT DUTY FOR THE PERIOD OF YOUR CLAIM BUT YOU CONTEND THAT THE REQUEST FOR ORDERS WAS INITIATED WELL IN ADVANCE OF YOUR ACTUAL ASSIGNMENT TO FLIGHT TESTS; THAT THE ORIGINAL REQUEST WAS NEVER DISAPPROVED; THAT THE NEGLECT IN FAILING TO PROPERLY FORWARD AND PROCESS THE ORIGINAL REQUEST IS ADMITTED AND THAT YOU SHOULD NOT BE PENALIZED SINCE IT WAS INTENDED AT ALL TIMES THAT YOU SHOULD RECEIVE THIS INCENTIVE PAY.

SECTION 204 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"INCENTIVE PAY-HAZARDOUS DUTY

"SEC. 204. (A) SUBJECT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL, IN ADDITION THERETO, BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY COMPETENT ORDERS. THE FOLLOWING DUTIES SHALL CONSTITUTE HAZARDOUS DUTIES:

"/1) DUTY AS A CREW MEMBER AS DETERMINED BY THE SECRETARY CONCERNED, INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHT;

"/3) DUTY INVOLVING FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS NOT AS A CREW MEMBER PURSUANT TO CLAUSE (1) OF THIS SUBSECTION; "

UNDER THE STATUTE THE RIGHT TO THE ADDITIONAL PAY FOR HAZARDOUS DUTY IS CONTINGENT UPON THE EXISTENCE OF COMPETENT ORDERS TO PERFORM SUCH DUTY, AS WELL AS THE PERFORMANCE OF THE DUTIES INCIDENT TO SUCH ORDERS. THE STATUTE ADMITS OF NO EXCEPTIONS OR DISCRETION IN THE MATTER. NO FLIGHT ORDERS WERE ISSUED TO YOU FOR THE PERIOD CLAIMED AND, IN SUCH CIRCUMSTANCES, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE INCENTIVE PAY.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND, UPON REVIEW, IS SUSTAINED.