B-132283, AUGUST 21, 1957, 37 COMP. GEN. 121

B-132283, AUGUST 21, 1957, 37 COMP. GEN. 121

MILITARY PERSONNEL - AVIATION DUTY - FLIGHT DEFICIENCIES - INACTIVE DUTY FLIGHT CREDIT MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO HAVE FLIGHT DEFICIENCIES DURING PARTS OF A COMPLETE PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING COVERING PORTIONS OF TWO CONSECUTIVE CALENDAR MONTHS MAY NOT MAKE UP THE DEFICIENCIES BY FLIGHTS PERFORMED ON INACTIVE DUTY TRAINING DURING OTHER PORTIONS OF SUCH MONTHS; HOWEVER, UNDER THE FLIGHT DEFICIENCY PROVISIONS OF EXECUTIVE ORDER NO. 10681 THE RIGHT TO FLYING PAY FOR FRACTIONS OF TWO CONSECUTIVE MONTHS IS NOT SUBJECT TO THE RESTRICTION THAT FLIGHT REQUIREMENTS FOR BOTH FRACTIONS MUST BE MET OR FLIGHT PAY IS LOST, AND, THEREFORE, MEMBERS WHO HAVE EXCESS INACTIVE DUTY TRAINING FLIGHTS MAY APPLY THEM TO ACTIVE DUTY FLIGHT DEFICIENCIES OCCURRING IN THE SAME MONTH. FLYING TIME PERFORMED DURING ANY SHORT TOUR OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITHIN THE SAME CALENDAR MONTH MAY BE APPLIED TOWARD THE FLIGHT REQUIREMENTS FOR ANY PRIOR OR SUBSEQUENT SHORT TOUR OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PERFORMED WITHIN THE SAME CALENDAR MONTH PROVIDED THE MEMBER IS UNDER CONTINUOUS FLIGHT ORDERS FOR THE CALENDAR MONTH INVOLVED.

TO THE SECRETARY OF DEFENSE, AUGUST 21, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 19, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS OF ENTITLEMENT TO ADDITIONAL PAY FOR THE PERFORMANCE OF FLYING DUTY. THE QUESTIONS, PRESENTED AND DISCUSSED IN COMMITTEE ACTION NO. 186, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ARE AS FOLLOWS:

1. UNDER THE PROVISIONS OF EXECUTIVE ORDER 10681 OF OCTOBER 1956, WHEN A PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OF LESS THAN THIRTY DAYS COVERS PARTS OF TWO CONSECUTIVE CALENDAR MONTHS, MAY FLIGHTS PERFORMED ON INACTIVE DUTY TRAINING DURING EITHER OR BOTH OF THE TWO MONTHS BE USED TO MEET THE FLIGHT REQUIREMENTS FOR THE PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING, ASSUMING THE INACTIVE DUTY FLIGHT REQUIREMENTS FOR EACH MONTH HAS BEEN MET?

2. IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE, MAY FLIGHTS PERFORMED ON INACTIVE TRAINING DUTY DURING EACH OF THE TWO CALENDAR MONTHS BE COUNTED TO MEET THE FLIGHT REQUIREMENTS OF THAT PART OF THE ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WHICH FALLS IN THAT CALENDAR MONTH, ASSUMING THE INACTIVE DUTY FLIGHT REQUIREMENT FOR EACH MONTH HAS BEEN MET?

3. MAY FLYING TIME PERFORMED DURING ANY SHORT TOUR OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WITHIN THE SAME CALENDAR MONTH BE APPLIED TOWARD MEETING FLIGHT REQUIREMENTS FOR ANY PRIOR OR SUBSEQUENT SHORT TOUR OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PERFORMED WITHIN THAT SAME CALENDAR MONTH?

SECTION 4 (A) OF EXECUTIVE ORDER NO. 10152, AUGUST 27, 1950, IS, IN PERTINENT PART, AS FOLLOWS:

MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS ON ACTIVE DUTY WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949:

(1) DURING ONE CALENDAR MONTH: 4 HOURS OF AERIAL FLIGHT.

(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 8 HOURS OF AERIAL FLIGHT.

(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 12 HOURS OF AERIAL FLIGHT.

(4) FOR FRACTIONS OF A CALENDAR MONTH, THE TIME OF AERIAL FLIGHT REQUIRED SHALL BEAR THE SAME RATIO TO THE TIME REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

(5) FOR FRACTIONS OF TWO CONSECUTIVE CALENDAR MONTHS, THE PERIOD IN QUESTION SHALL BE CONSIDERED AS A UNIT AND THE TIME OF AERIAL FLIGHT REQUIRED SHALL BEAR THE SAME RATIO TO THE TIME REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

IT IS STATED IN COMMITTEE ACTION NO. 186 THAT ALL OF THE ARMED FORCES CONSIDER THAT THE ABOVE FLIGHT REQUIREMENTS FOR ACTIVE DUTY ALSO APPLY TO PERIODS OF ACTIVE DUTY FOR TRAINING. THAT IS OUR OPINION ALSO.

SECTION 4 (B) OF EXECUTIVE ORDER NO. 10152 IS AS FOLLOWS:

MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ON INACTIVE-DUTY TRAINING WHO MAY QUALIFY FOR INACTIVE PAY UNDER THE PROVISIONS OF SECTION 501 (D) OF THE CAREER COMPENSATION ACT OF 1949:

(1) DURING ONE CALENDAR MONTH: 2 HOURS OF AERIAL FLIGHT.

(2) DURING ANY TWO CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBDIVISION (1) ABOVE HAVE NOT BEEN MET: 4 HOURS OF AERIAL FLIGHT.

(3) DURING ANY THREE CONSECUTIVE CALENDAR MONTHS WHEN THE REQUIREMENTS OF SUBDIVISION (2) ABOVE HAVE NOT BEEN MET: 6 HOURS OF AERIAL FLIGHT.

(4) FOR FRACTIONS OF A CALENDAR MONTH, THE TIME OF AERIAL FLIGHT REQUIRED SHALL BEAR THE SAME RATIO TO THE TIME REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

(5) FOR FRACTIONS OF TWO CONSECUTIVE CALENDAR MONTHS, THE PERIOD IN QUESTION SHALL BE CONSIDERED AS A UNIT AND THE TIME OF AERIAL FLIGHT REQUIRED SHALL BEAR THE SAME RATIO TO THE TIME REQUIRED FOR A FULL CALENDAR MONTH AS THE PERIOD IN QUESTION BEARS TO A FULL CALENDAR MONTH.

EXECUTIVE ORDER NO. 10681, OCTOBER 23, 1956, AMENDED SECTION 4 OF EXECUTIVE ORDER NO. 10152 BY ADDING THERETO A NEW SUBSECTION AS FOLLOWS:

(C) MINIMUM FLIGHT REQUIREMENTS FOR MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO PERFORM BOTH ACTIVE-DUTY AND INACTIVE DUTY TRAINING DURING THE SAME CALENDAR MONTH AND WHO MAY QUALIFY FOR INCENTIVE PAY UNDER THE PROVISIONS OF BOTH SECTIONS 204 AND 501 (D) OF THE CAREER COMPENSATION ACT OF 1949:

(1) FOR PERIODS OF ACTIVE DUTY, THOSE PRESCRIBED BY SUBDIVISION (4) OF SUBSECTION (A) OF THIS SECTION.

(2) FOR PERIODS OF INACTIVE-DUTY TRAINING, THOSE PRESCRIBED BY SUBDIVISION (4) OF SUBSECTION (B) OF THIS SECTION. HOWEVER, THE TOTAL FLIGHT REQUIREMENTS AS DETERMINED BY SUBDIVISIONS (1) AND (2) OF THIS SUBSECTION MAY BE MET AT ANY TIME DURING SUCH CALENDAR MONTH---

(1) ON INACTIVE-DUTY TRAINING, OR

(2) ON ACTIVE-DUTY AND INACTIVE-DUTY TRAINING, IF THE INACTIVE DUTY FLIGHT REQUIREMENT FOR SUCH MONTH HAS BEEN MET.

APPARENTLY THE SOLE PURPOSE OF EXECUTIVE ORDER NO. 10681 IS TO PERMIT, WITHIN ONE CALENDAR MONTH, FLIGHTS MADE IN EXCESS OF REQUIREMENTS, WHILE IN AN INACTIVE DUTY TRAINING STATUS, TO BE APPLIED TO FLIGHT DEFICIENCIES FOR PERIODS WHILE IN AN ACTIVE DUTY TRAINING STATUS. IT FOLLOWS THAT THIS EXECUTIVE ORDER HAS NO APPLICATION IF SUFFICIENT FLIGHTS ARE PERFORMED WHILE IN AN ACTIVE DUTY FOR TRAINING STATUS TO MEET THE REQUIREMENTS OF SECTION 4 (A) (4) OR SECTION 4 (A) (5), AS THE CASE MAY BE, OF EXECUTIVE ORDER NO. 10152, FOR UNDER SUCH CIRCUMSTANCES THERE WOULD BE NO FLIGHT DEFICIENCIES FOR A FRACTION OF A CALENDAR MONTH OF ACTIVE DUTY FOR TRAINING. THE CONCLUSION THAT THE PROVISIONS OF EXECUTIVE ORDER NO. 10681 ARE APPLICABLE ONLY TO FLIGHT REQUIREMENTS FOR, AND TO FLIGHTS MADE IN, ONE CALENDAR MONTH IS BORNE OUT BY THE LANGUAGE OF THE EXECUTIVE ORDER ITSELF AND BY STATEMENTS EXPLAINING THE INTENT OF THE THEN PROPOSED EXECUTIVE ORDER, CONTAINED IN A LETTER OF AUGUST 24, 1956, FROM THE DEPUTY SECRETARY OF DEFENSE TO THE DIRECTOR, BUREAU OF THE BUDGET, A COPY OF WHICH WAS ENCLOSED WITH COMMITTEE ACTION NO. 186. THUS, UNDER EXECUTIVE ORDER NO. 10681 FLIGHTS MADE IN A FRACTION OF ONE CALENDAR MONTH CANNOT BE APPLIED TO MAKE UP DEFICIENCIES OCCURRING IN A FRACTION OF ANOTHER CALENDAR MONTH, NOTWITHSTANDING THE PROVISIONS OF SECTION 4 (A) (5) OF EXECUTIVE ORDER NO. 10152. ALSO, THE RULE THAT UNDER THAT SECTION FRACTIONS OF TWO CONSECUTIVE CALENDAR MONTHS MUST BE CONSIDERED TOGETHER AS ONE UNIT FOR FLIGHT REQUIREMENTS (B-101760, MAY 8, 1952, AND JUNE 19, 1952) IS NOT FOR APPLICATION UNDER EXECUTIVE ORDER NO. 10681. IN OTHER WORDS, IF AN INDIVIDUAL ON ACTIVE DUTY FOR TRAINING FOR FRACTIONS OF TWO CONSECUTIVE MONTHS IS UNABLE TO MEET THE REQUIREMENTS OF SECTION 4 (A) (5) OF EXECUTIVE ORDER NO. 10152 AND MUST LOOK TO EXECUTIVE ORDER NO. 10681 FOR ANY RIGHT TO FLYING PAY FOR SUCH FRACTIONAL PERIODS, HE NO LONGER IS SUBJECT TO THE RESTRICTION IN THE EARLIER EXECUTIVE ORDER THAT REQUIREMENTS FOR BOTH FRACTIONS MUST BE MET OR FLYING PAY FOR BOTH FRACTIONS IS LOST. INSTEAD, UNDER EXECUTIVE ORDER NO. 10681 HE MAY MAKE UP REQUIREMENTS FOR ACTIVE DUTY FOR TRAINING BY FLIGHTS IN EXCESS OF REQUIREMENTS WHILE ON INACTIVE DUTY TRAINING, SOLELY WITHIN THE FRAMEWORK OF ONE CALENDAR MONTH, REGARDLESS OF WHETHER FLIGHT REQUIREMENTS ARE MADE UP FOR THE OTHER FRACTION OF A MONTH OF ACTIVE DUTY FOR TRAINING.

ON THE ASSUMPTION THAT QUESTION ONE REFERS TO THE MAKING UP OF FLIGHT DEFICIENCIES FOR THE COMPLETE PERIOD OF ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING (FRACTIONS OF TWO CONSECUTIVE CALENDAR MONTHS) BY FLIGHTS MADE IN EXCESS OF REQUIREMENTS WHILE IN AN INACTIVE DUTY TRAINING STATUS DURING ONE OF THE CALENDAR MONTHS INVOLVED, THAT QUESTION IS ANSWERED IN THE NEGATIVE. QUESTION TWO IS ANSWERED IN THE AFFIRMATIVE.

THE ABOVE LETTER OF THE DEPUTY SECRETARY OF DEFENSE CITES OUR DECISION, A -13594, APRIL 6, 1926, AS AUTHORITY FOR THE CONCLUSION THAT IF ACTIVE DUTY FOR TRAINING IS PERFORMED ON SEVERAL SINGLE NON CONSECUTIVE DAYS IN ONE CALENDAR MONTH, FLIGHT REQUIREMENTS FOR EACH DAY (EIGHT MINUTES) WOULD HAVE TO BE MET ON THAT PARTICULAR DAY FOR FLYING PAY TO ACCRUE. IN OTHER WORDS, THE VIEW IS EXPRESSED THAT EACH SUCH DAY WOULD CONSTITUTE A SEPARATE DETAIL TO FLYING DUTY. IN THE DECISION OF APRIL 6, 1926, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN OF THE ARMY WHO, BY ORDERS DATED DECEMBER 1, 1925, WAS DETAILED TO FLYING DUTY FROM DECEMBER 11 TO 31, 1925, AND BY ORDERS DATED JANUARY 1, 1926, WAS DETAILED TO SUCH DUTY FROM JANUARY 1, TO 31, 1926. IT WAS HELD THAT THE TWO DETAILS, EVEN THOUGH THERE WAS NO BREAK BETWEEN THEM, WERE FOR SEPARATE SPECIFIC PERIODS AND MUST BE TREATED SEPARATELY AS TO THE MATTER OF MEETING FLIGHT REQUIREMENTS. THE HOLDING IN THE DECISION OF APRIL 6, 1926, IS NOT FOR APPLICATION WHEN SEPARATE TOURS OF DUTY ARE PERFORMED UNDER THE SAME FLIGHT ORDER.

ON THE ASSUMPTION THAT THE INDIVIDUAL CONCERNED WAS UNDER CONTINUOUS FLIGHT ORDERS FOR THE CALENDAR MONTH INVOLVED, THE THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IN THE DISCUSSION IN COMMITTEE ACTION NO. 186 IT IS STATED THAT:

AS AN EXAMPLE OF THE CIRCUMSTANCES PROMPTING THE ABOVE QUESTIONS, A NAVAL RESERVE OFFICER IN A DRILL PAY STATUS AND HAVING CONTINUOUS ORDERS TO DUTY INVOLVING FLYING PERFORMS 14 DAYS ACTIVE DUTY FOR TRAINING FROM 24 APRIL THROUGH 7 MAY. THE OFFICER IS NOT ENTITLED TO TRAVEL TIME TO AND FROM HIS DUTY STATION. HIS FLIGHT REQUIREMENTS WERE MET THROUGH 31 MARCH.

THE FOLLOWING COMBINATIONS OF FLIGHT TIME ILLUSTRATE THE DIFFERENT RESULTS OBTAINED WITH RESPECT TO FULFILLING FLIGHT REQUIREMENTS, DEPENDING ON THE ANSWERS TO THE QUESTIONS PRESENTED.

CHART

PERIOD DURING WHICH FLIGHTS PERFORMED HOURS OF FLIGHTS

EXAMPLE A:

APR. 1-23 -------------------------------------- 3 HRS. 24 MINS.

APR. 24-1MAY 7 --------------------------------- NONE

MAY 8-31 --------------------------------------- NONE

TOTAL FLIGHT TIME --------------------------- 3 HRS. 24 MINS.

EXAMPLE B:

APR. 1-23 -------------------------------------- 1 HR. 32 MINS.

APR. 24-30 ------------------------------------- 1 HR. 52 MINS.

MAY 1-7 ---------------------------------------- NONE

MAY 8-31 --------------------------------------- NONE

TOTAL FLIGHT TIME --------------------------- 3 HRS. 24 MINS.

EXAMPLE C:

APR. 1-23 --------------------------------------2 HRS. 32 MINS.

APR. 24-1MAY 7 --------------------------------- NONE

MAY 8-31 --------------------------------------- 2 HRS. 24 MINS.

TOTAL FLIGHT TIME --------------------------- 4 HRS. 56 MINS.

EXAMPLE D:

APR. 1-23 ------------------------------------- 2 HRS. 28 MINS.

APR. 24-1MAY 7 -------------------------------- NONE

MAY 8-31 -------------------------------------- 2 HRS. 28 MINS.

TOTAL FLIGHT TIME --------------------------- 4 HRS. 56 MINS.

THE FLIGHT REQUIREMENTS FOR ACTIVE DUTY FOR TRAINING ARE 4 HOURS PER MONTH, 8 MINUTES PER DAY. THE REQUIREMENTS FOR INACTIVE DUTY TRAINING ARE 2 HOURS PER MONTH, 4 MINUTES PER DAY. UNDER THE EXAMPLES CITED IN COMMITTEE ACTION NO. 186 THE FLIGHT REQUIREMENTS ARE:

CHART APR. 1-23 ------------------------------------------- 1 HR. 32 MINS. APR. 24-30 ------------------------------------------ 56 MINS.

TOTAL FOR APRIL ---------------------------- 2 HRS. 28 MINS. MAY 1-7 --- ------------------------------------------ 56 MINS. MAY 8-31 ------------ -------------------------------- 1 HR. 32 MINS.

TOTAL FOR MAY ----------------------------- 2 HRS. 28 MINS. APR. 24-1MAY 7 -------------------------------------- 1 HR. 52 MINS.

IN EXAMPLE A FLIGHTS OF 3 HOURS 24 MINUTES PERFORMED DURING THE PERIOD OF INACTIVE DUTY TRAINING FROM APRIL 1 TO 23 WERE MORE THAN SUFFICIENT TO MEET FLIGHT REQUIREMENTS FOR THE MONTH OF APRIL. NO FLIGHTS WERE MADE IN MAY AND EXCESS FLIGHTS MADE IN APRIL MAY NOT CURE THAT DEFICIENCY. SEE ANSWER TO QUESTION ONE. THE OFFICER IS ENTITLED TO FLYING PAY FOR THE MONTH OF APRIL.

IN EXAMPLE B SUFFICIENT FLIGHTS WERE MADE DURING THE PERIOD OF ACTIVE DUTY FOR TRAINING FROM APRIL 24 TO MAY 7 TO QUALIFY FOR FLYING PAY FOR THAT PERIOD (SECTION 4 (A) (5), EXECUTIVE ORDER NO. 10152). HENCE, EXECUTIVE ORDER NO. 10681 IS NOT APPLICABLE. SUFFICIENT FLIGHTS WERE MADE DURING THE PERIOD OF INACTIVE DUTY TRAINING FROM APRIL 1 TO 23 TO QUALIFY FOR FLYING PAY FOR THAT PERIOD. THE OFFICER IS ENTITLED TO FLYING PAY FROM APRIL 1 TO MAY 7. IN EXAMPLE C THE OFFICER PERFORMED SUFFICIENT FLIGHTS IN AN INACTIVE DUTY TRAINING STATUS FROM APRIL 1 TO 23 TO QUALIFY FOR FLYING PAY FOR THE MONTH OF APRIL. HE PERFORMED SUFFICIENT FLIGHTS DURING THE PERIOD OF INACTIVE DUTY TRAINING FROM MAY 8 TO 31 TO QUALIFY FOR FLYING PAY FOR THAT PERIOD, BUT NOT ENOUGH TO MAKE UP THE DEFICIENCIES FOR THE PERIOD MAY 1 TO 7. HE IS ENTITLED TO FLYING PAY FROM APRIL 1 TO 30 AND FROM MAY 8 TO 31.

IN EXAMPLE D THE OFFICER PERFORMED SUFFICIENT FLIGHTS WHILE IN AN INACTIVE DUTY TRAINING STATUS FROM APRIL 1 TO 23 TO QUALIFY FOR FLYING PAY FOR THE MONTH OF APRIL. HE PERFORMED SUFFICIENT FLIGHTS WHILE IN AN INACTIVE DUTY TRAINING STATUS FROM MAY 8 TO 31 TO QUALIFY FOR FLYING PAY FOR THE MONTH OF MAY. HE IS ENTITLED TO FLYING PAY FROM APRIL 1 TO MAY 31.