B-130211, MAR. 12, 1957

B-130211, MAR. 12, 1957

TO MR. J. A. VILLAMOR:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1956, REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION, DATED NOVEMBER 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR FLYING PAY, AND FOREIGN SERVICE DUTY INCREASE ON SUCH PAY, AS CAPTAIN AND MAJOR, ARMY OF THE UNITED STATES, FOR THE PERIOD DECEMBER 1, 1942, TO NOVEMBER 8, 1943. THE DISALLOWANCE WAS STATED ON THE BASIS THAT YOU WERE NOT UNDER FLIGHT ORDERS DURING THE PERIOD OF YOUR CLAIM. YOU NOW HAVE SUBMITTED A PHOTOSTATIC COPY OF FLIGHT ORDERS ISSUED TO YOU ON JULY 27, 1942.

SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PROVIDED THAT MILITARY AND NAVAL PERSONNEL SHOULD RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY WHEN, BY ORDERS OF COMPETENT AUTHORITY, THEY WERE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AND WHEN, IN CONSEQUENCE OF SUCH ORDERS, THEY DID PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS DEFINED IN APPLICABLE EXECUTIVE ORDERS. THUS, THE STATUTE PRESCRIBED TWO REQUIREMENTS, BOTH OF WHICH MUST HAVE BEEN MET, BEFORE FLYING PAY ACCRUED: ONE, ORDERS OF COMPETENT AUTHORITY REQUIRING PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS AND TWO, PARTICIPATION IN SUCH FLIGHTS IN CONSEQUENCE OF SUCH ORDERS.

EXECUTIVE ORDER NO. 9195, JULY 7, 1942, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, DEFINED REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS AS TEN OR MORE FLIGHTS TOTALING AT LEAST THREE HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST FOUR HOURS, DURING EACH CALENDAR MONTH. THE EXECUTIVE ORDER PROVIDED THAT FLIGHT REQUIREMENTS NOT MET FOR ONE MONTH COULD BE MADE UP THE NEXT MONTH; THAT FLIGHT REQUIREMENTS NOT MET FOR TWO CONSECUTIVE MONTHS COULD BE MADE UP IN THE NEXT MONTH; AND THAT WHERE A COMMANDING OFFICER CERTIFIED THAT, DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS, AN INDIVIDUAL UNDER FLIGHT ORDERS HAD BEEN UNABLE TO PERFORM THE REQUIRED FLIGHTS, FLIGHT DEFICIENCIES COULD BE MADE UP DURING A SIX-MONTH PERIOD. HOWEVER, THERE WAS NO PROVISION IN THE EXECUTIVE ORDER FOR MAKING UP, UNDER ANY CONDITIONS, FLIGHT DEFICIENCIES FOR A PERIOD OF MORE THAN SIX MONTHS OR FOR ANY PART OF SUCH A PERIOD.

THE FILE BEFORE US INDICATES THAT YOU DID NOT MAKE ANY FLIGHTS DURING THE PERIOD OF YOUR CLAIM. YOUR LETTER TO US DATED NOVEMBER 2, 1956, OFFERS AN EXPLANATION OF WHY FLYING REQUIREMENTS COULD NOT BE MET.

IT IS REGRETTED THAT THE WORDING OF THE DISALLOWANCE OF NOVEMBER 30, 1956, MAY HAVE LED YOU TO BELIEVE THAT THE SUBMISSION OF EVIDENCE THAT YOU WERE UNDER FLIGHT ORDERS DURING THE PERIOD OF YOUR CLAIM WOULD LEAD TO ITS ALLOWANCE. THE FACT REMAINS, HOWEVER, THAT YOU DID NOT MEET THE SECOND ESSENTIAL REQUIREMENT FOR FLYING PAY, NAMELY, ACTUAL PARTICIPATION IN FLIGHTS, AND, ACCORDINGLY, YOU CLAIM MAY NOT BE ALLOWED.