B-13727, FEBRUARY 28, 1945, 24 COMP. GEN. 636

B-13727, FEBRUARY 28, 1945, 24 COMP. GEN. 636

PAY - AVIATION DUTY - OBSERVERS IN VIEW OF THE PROVISIONS OF SECTION 13A OF THE NATIONAL DEFENSE ACT AS AMENDED, DEFINING THE TERM "FLYING OFFICER" AS INCLUDING, IN TIME OF WAR, ANY OFFICER WHO HAS RECEIVED AN AERONAUTICAL RATING AS OBSERVER, NAVY OFFICERS, ENTITLED UNDER CURRENT STATUTORY PROVISIONS TO AVIATION PAY AT RATES NOT IN EXCESS OF THOSE PROVIDED BY LAW FOR THE ARMY, MAY BE PAID 50 PERCENT INCREASE IN PAY AS FLYING OFFICERS IF THEY HAVE RECEIVED AN AERONAUTICAL RATING AS OBSERVER, ALTHOUGH NOT ASSIGNED AS MEMBERS OF COMBAT CREWS, AS REQUIRED, EXCEPT IN TIME OF WAR, BY OTHER PROVISIONS OF SAID SECTION 13A, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 28, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 13, 1945, AS FOLLOWS:

AT THE PRESENT TIME NAVAL AVIATORS, FLIGHT SURGEONS, AND STUDENT NAVAL AVIATORS ORDERED TO DUTY INVOLVING FLYING RECEIVE FLIGHT PAY AT THE RATE OF 50 PERCENT OF THEIR BASE PAY. OTHER CATEGORIES OF OFFICERS ORDERED TO DUTY INVOLVING FLYING ARE DESIGNATED AS " TECHNICAL OBSERVERS" AND RECEIVE FLIGHT PAY AT THE RATE OF $60 PER MONTH. OFFICERS COMING WITHIN THE DESIGNATION OF " TECHNICAL OBSERVERS" INCLUDE NONPILOT NAVIGATORS, FIGHTER DIRECTORS, FLIGHT ENGINEERS, GUNNERY INSTRUCTORS AND OTHERS WHOSE DUTIES REQUIRE THAT THEY ENGAGE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS MEMBERS OF AIRCRAFT CREWS. IT IS UNDERSTOOD THAT OFFICERS OF THE ARMY AIR FORCES PERFORMING DUTIES SIMILAR TO THOSE PERFORMED BY NAVAL " TECHNICAL OBSERVERS" RECEIVE FLIGHT PAY AT THE RATE OF 50 PERCENT OF BASE PAY, THOUGH THE SAME LAWS APPEAR TO BE APPLICABLE TO BOTH SERVICES.

SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED 16 JUNE 1942 (56 STAT. 368; 37 U.S.C., SUPP. III, 118), PROVIDES RELATIVE TO ADDITIONAL PAY OF PERSONNEL PERFORMING FLYING DUTY, AS FOLLOWS:

"OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, OR PUBLIC HEALTH SERVICE AND MEMBERS OF THE RESERVE FORCES OF SUCH SERVICES, AND THE NATIONAL GUARD SHALL RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE PROMULGATED BY THE PRESIDENT: * * * "

SECTION 18, SUPRA, AUTHORIZES AN INCREASE OF 50 PERCENT IN THE PAY OF PERSONNEL WHO, PURSUANT TO ORDERS FROM COMPETENT AUTHORITY, PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AS DEFINED IN EXECUTIVE REGULATIONS. HOWEVER, THE ANNUAL MILITARY AND NAVAL APPROPRIATION ACTS IN PAST YEARS HAVE CONTAINED A RESTRICTION AGAINST THE USE OF APPROPRIATED FUNDS FOR PAYING ADDITIONAL FLYING PAY TO NON FLYING OFFICERS AND OBSERVERS IN EXCESS OF CERTAIN SPECIFIED RATES, THE RESTRICTION FOR THE CURRENT FISCAL YEAR, AS CONTAINED IN THE NAVAL APPROPRIATION ACT, 1945 ( PUBLIC LAW 347-78TH CONGRESS), UNDER THE APPROPRIATION " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," READING AS FOLLOWS:

"PAY AND ALLOWANCES: OFFICERS, ACTIVE DUTY, NO PART OF WHICH SHALL BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS, BY MORE THAN SIXTY OFFICERS ABOVE THE RANK OF CAPTAIN NOR BY NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY, WHICH SHALL BE THE LEGAL MAXIMUM RATES AS TO SUCH NONFLYING OFFICERS OR OBSERVERS: * * *

LIMITATION ON FLYING PAY OF NONFLYING OFFICERS OF THE ARMY AND MODIFICATION OF THE DEFINITION OF A FLYING OFFICER ARE PROVIDED FOR IN THE MILITARY APPROPRIATION ACT, 1945, APPROVED 28 JUNE 1944 ( PUBLIC LAW 374- 78TH CONGRESS), UNDER THE APPROPRIATION " FINANCE SERVICE, ARMY," AS FOLLOWS:

" * * * PROVIDED, THAT THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL NOT BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS AT A RATE IN EXCESS OF $720 PER ANNUM, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH OFFICERS, AND SUCH NONFLYING OFFICERS SHALL BE ENTITLED TO SUCH RATE OF INCREASE BY PERFORMING THREE OR MORE FLIGHTS WITHIN EACH NINETY-DAY PERIOD, PURSUANT TO ORDERS OF COMPETENT AUTHORITY, WITHOUT REGARD TO THE DURATION OF SUCH FLIGHT OR FLIGHTS: PROVIDED FURTHER, THAT, DURING THE CONTINUANCE OF THE PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF, A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING: * * *"

THE TERM "FLYING OFFICER" IN THE ARMY IS DEFINED BY STATUTE (SEC. 13A OF NATIONAL DEFENSE ACT, AS ADDED 4 JUNE 1920, 41 STAT. 768, AS AMENDED), AS FOLLOWS:

"A FLYING OFFICER IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICALRATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER OR AS ANY OTHER MEMBER OF A COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE: PROVIDED, THAT ALL OFFICER OF THE AIR CORPS WHO ON JULY 2, 1926, HELD ANY RATING AS A PILOT SHALL BE CONSIDERED AS FLYING OFFICERS WITHIN THE MEANING OF SAID SECTIONS.' (10 U.S.C. 291C).

"DURING THE CONTINUANCE OF THE PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING.' (10 U.S.C., SUPP. III, 291C-1.)

THE TERM "FLYING OFFICER" IN THE NAVY AND MARINE CORPS IS NOT DEFINED BY STATUTE, BUT SUCH TERM HAS BEEN ADMINISTRATIVELY DEFINED IN A MANNER SIMILAR TO THE STATUTORY PROVISIONS APPLICABLE TO THE ARMY.

IN A DECISION RENDERED TO THE SECRETARY OF THE NAVY ON JANUARY 6, 1941, B -13727, THE ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES CONSIDERED THE QUESTION WHETHER A PROVISION IN THE ACT OF OCTOBER 4, 1940 (54 STAT. 963), AMENDING THE DEFINITION OF A FLYING OFFICER IN THE ARMY, AS FOLLOWS:

"PROVIDED FURTHER, THAT A FLYING OFFICER IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER OR AS ANY OTHER MEMBER OF A COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.' MADE ANY CHANGE IN THE PAY OF OFFICERS OF THE NAVY WHO WERE APPOINTED NAVAL AVIATION OBSERVERS, SO AS TO ENTITLE THEM TO 50 PERCENT INCREASE IN FLIGHT PAY UNDER THE ABOVE QUOTED PROVISION FROM THE ACT OF OCTOBER 4, 1940, WHEN DETAILED TO DUTY INVOLVING FLYING, PROVIDED FLIGHT REQUIREMENTS WERE MET. IT WAS HELD IN THE CITED DECISION THAT THE ABOVE QUOTED DEFINITION OF A "FLYING OFFICER" DID NOT AFFECT THE EXISTING FLIGHT PAY REGULATIONS OF THE NAVY "UNLESS THE SECRETARY OF THE NAVY, UNDER COMPETENT REGULATIONS, COMPARABLE TO REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF WAR, DETAILS A CLASS OF OFFICERS AND ENLISTED MEN FOR DUTY AS AIRCRAFT OBSERVERS, AND ASSIGNS THEM AS MEMBERS OF COMBAT CREWS.'

UNDER THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JANUARY 6, 1941, NAVAL AVIATION OBSERVERS, TO BE ENTITLED TO FULL FLIGHT PAY, MUST BE DETAILED TO DUTY AS SUCH UNDER COMPETENT REGULATIONS AND TO BE ASSIGNED AS "MEMBERS OF COMBAT CREWS.' HOWEVER, IT IS THE UNDERSTANDING OF THE NAVY DEPARTMENT THAT THE ARMY HAS TAKEN THE POSITION THAT AVIATION OBSERVERS ARE A CLASS OF FLYING OFFICER AND ARE NOT, THEREFORE, REQUIRED TO BE ASSIGNED TO DUTY AS "MEMBERS OF COMBAT CREWS" TO ENTITLE THEM TO FULL FLIGHT PAY.

AT PRESENT FLYING OFFICERS, IN THE NAVY, COMPRISE NAVAL AVIATORS, FLIGHT SURGEONS, AND THOSE UNDERGOING FLIGHT TRAINING. IN THE ARMY, HOWEVER, FLYING OFFICERS INCLUDE NOT ONLY THE ABOVE CATEGORIES, BUT ALSO ANY OFFICER WITH AN AERONAUTICAL RATING AS AIRCRAFT OBSERVER, AND ANY OTHER MEMBERS OF COMBAT CREWS. THIS DISCREPANCY AS BETWEEN FLYING OFFICERS OF THE ARMY AND THE NAVY APPEARS TO BE IN ACCORDANCE WITH THE ARMY'S INTERPRETATION OF THE ABOVE QUOTED PROVISION FROM THE ACT OF OCTOBER 4, P940, AS AUTHORIZING THE ARMY TO ASSIGN OFFICERS EITHER AS AIRCRAFT OBSERVERS OR AS MEMBERS OF COMBAT CREWS, AND UNDER SUCH INTERPRETATION ARMY OFFICERS IN THE CATEGORIES ABOVE MENTIONED EITHER RECEIVE FLIGHT ORDERS DESIGNATING THEM AS OBSERVERS OR AS MEMBERS OF COMBAT CREWS, AND ONLY THOSE OFFICERS WHO DO NOT HAVE AERONAUTICAL RATINGS ARE ASSIGNED AS MEMBERS OF COMBAT CREWS.

IT SHOULD ALSO BE POINTED OUT THAT ARMY REGULATIONS PROVIDE FOR SUBCLASSIFICATIONS OF THE AERONAUTICAL RATING OF "AIRCRAFT OBSERVER" AND INCLUDE THEREIN, IN THE OVERALL CATEGORY OF "FLYING OFFICER," PERSONNEL CLASSIFIED AS BOMBARDIERS, NAVIGATORS, RADIO OBSERVERS, AND OTHER CLASSES NOT APPLICABLE TO NAVAL AVIATION. IN THE NAVY, HOWEVER, OFFICER BOMBARDIERS, NAVIGATORS, GUNNERS, AND RADIO OBSERVERS ARE CONSIDERED NONFLYING OFFICERS AND ARE RESTRICTED TO THE LIMITED FLIGHT PAY OF $750 PER ANNUM.

IN A LETTER TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, DATED MAY 14, 1940, THE SECRETARY OF WAR, IN PROPOSING AND URGING PASSAGE OF THE AMENDMENT TO SECTION 13A OF THE NATIONAL DEFENSE ACT, DISTINGUISHED BETWEEN AIRCRAFT OBSERVERS AND OTHER MEMBERS OF COMBAT CREWS BY STATING THAT THE PROPOSED "AMENDMENTS WOULD PERMIT DETAIL OF OFFICERS OF THE AIR CORPS FROM OTHER BRANCHES FOR TRAINING AND DUTY AS AIRCRAFT OBSERVERS AND AS OTHER MEMBERS OF COMBAT CREWS OF AIRCRAFT.' IT THUS APPEARS THAT THE WAR DEPARTMENT NEVER INTENDED TO ASSIGN, BY PHRASEOLOGY IN FLIGHT ORDERS, OFFICERS WHO ARE AIRCRAFT OBSERVERS AS MEMBERS OF COMBAT CREWS.

SECTION 3 OF THE ACT OF JUNE 16, 1936 (49 STAT. 1524), AMENDED THE PRIOR DEFINITION OF A FLYING OFFICER IN TIME OF PEACH AND, FOR THE FIRST TIME, PROVIDED FOR THE DESIGNATION OF "AIRCRAFT OBSERVER," AS FOLLOWS:

"A FLYING OFFICER IN TIME OF PEACE IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER: PROVIDED, THAT IN TIME OF PEACE NO ONE MAY BE RATED AS AN AIRCRAFT OBSERVER UNLESS HE HAS PREVIOUSLY QUALIFIED AS A PILOT: PROVIDED FURTHER, THAT ANY OFFICER RATED AS AN AIRCRAFT OBSERVER IN TIME OF WAR MUST SUBSEQUENTLY QUALIFY AS A PILOT BEFORE HE CAN QUALIFY AS AN OBSERVER IN TIME OF PEACE FOLLOWING SUCH WAR.'

THIS STATUTORY PROVISION DID NOT REQUIRE THAT AN AIRCRAFT OBSERVER BE A MEMBER OF A COMBAT CREW, NOR IS ANY SUCH REQUIREMENT PRESCRIBED IN ANY OTHER PROVISION OF LAW.

SINCE FOR PURPOSES OF FLIGHT PAY THE NAVY IS REQUIRED TO MODEL ITS ACTIONS AND ADMINISTRATIVE PROCEDURES ON LINES PROVIDED FOR THE ARMY, IT WOULD APPEAR BOTH JUST AND PROPER THAT THE DISCRIMINATION NOW EXISTING WITH RESPECT TO FLIGHT PAY OF PERSONNEL OF THE TWO SERVICES IN QUESTION SHOULD BE ELIMINATED AND RESOLVED INTO A SIMILAR AND EQUAL PRACTICE. UNDER PRESENT PRACTICE A LARGE NUMBER OF OFFICERS IN THE NAVY AERONAUTICAL ORGANIZATION SUFFER A DISCRIMINATION IN THE MATTER OF FLIGHT PAY WHICH IT APPEARS WAS NOT INTENDED BY CONGRESS AND WHICH MIGHT EASILY BE REMEDIED BY AUTHORIZING THE DESIGNATION OF OFFICERS AS AIRCRAFT OBSERVERS AND THEIR DETAIL TO DUTY AS SUCH WITHOUT REQUIRING THEM TO BE ASSIGNED "AS MEMBERS OF COMBAT CREWS.'

IN CONSIDERATION OF ALL THE FOREGOING, THE FACT THAT THE PRIOR RULING OF THE ASSISTANT COMPTROLLER GENERAL IN THIS MATTER WAS RENDERED WHEN THE NAVY WAS OPERATING ON A PEACE TIME BASIS, WHEREAS, IN THE LIGHT OF PRESENT WAR TIME CONDITIONS, A CHANGE IN SUCH RULING MAY NOW BE WARRANTED, AND THE FURTHER UNDERSTANDING OF THE NAVY DEPARTMENT THAT FULL FLIGHT PAY IS NOW BEING PAID TO ARMY OBSERVERS IN THE VARIOUS CATEGORIES AS A CLASS OF FLYING OFFICER WITHOUT PROVISION IN THEIR ORDERS FOR ASSIGNMENT TO DUTY AS MEMBERS OF COMBAT CREWS, THE NAVY DEPARTMENT REQUESTS YOUR RECONSIDERATION OF THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JANUARY 6, 1941, B- 13727, TO THE END THAT YOU MAY NOW SEE YOUR WAY CLEAR TO HOLDING THAT NAVAL OFFICERS DESIGNATED AS TECHNICAL OBSERVERS IN THE VARIOUS CATEGORIES ABOVE MENTIONED AND OTHERS WHOSE DUTIES REQUIRE THAT THEY ENGAGE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS MEMBERS OF AIRCRAFT CREWS, ARE ENTITLED TO FULL FLIGHT PAY WITHOUT REQUIRING THAT THEY BE ASSIGNED TO DUTY "AS MEMBERS OF COMBAT CREWS.'

IN THE EVENT THAT YOUR DECISION ON RECONSIDERATION OF THIS MATTER IS FAVORABLE, IT IS REQUESTED THAT YOU INDICATE THE EARLIEST DATE FROM WHICH PAYMENT OF FULL FLIGHT PAY IS AUTHORIZED THEREUNDER.

IF YOUR DECISION IS UNFAVORABLE, THE NAVY DEPARTMENT REQUESTS AN EXPRESSION OF YOUR VIEWS AS TO THE PROCEDURE WHICH IT MUST FOLLOW IN ORDER TO ASSURE THAT OBSERVERS OF THE NAVY MAY BE PLACED ON AN EXACT PARITY WITH ARMY OBSERVERS IN THE MATTER OF ENTITLEMENT TO FULL FLIGHT PAY.

THE DECISION OF JANUARY 6, 1941, B-13727, REFERRED TO IN YOUR LETTER, CONSIDERED THE QUESTION WHETHER NAVAL AVIATION OBSERVERS DETAILED TO DUTY INVOLVING FLYING, PROVIDED FLIGHT REQUIREMENTS WERE MET, WERE ENTITLED TO 50 PERCENT INCREASE AS FLIGHT PAY UNDER THE PROVISIONS OF THE ACT OF OCTOBER 4, 1940. THE SUBMISSION THERE CONSIDERED WAS PRESENTED IN TIME OF PEACE AND THERE WAS NO OCCASION THEN TO DECIDE THE POSSIBLE APPLICATION OF OTHER STATUTORY PROVISIONS COLLATERAL TO THE ACT OF OCTOBER 4, 1940, AND IMPLEMENTING THAT ACT IN TIME OF WAR.

PERTINENT TO THE QUESTION HERE INVOLVED ARE THE SIXTH AND NINTH PROVISOS, RESPECTIVELY, OF SECTION 2 OF THE ACT OF JULY 2, 1926, 44 STAT. 780, AMENDING SECTION 13A OF THE NATIONAL DEFENSE ACT, AS FOLLOWS: THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO LIMIT THE NUMBER OF OFFICERS IN EACH GRADE THAT MAY BE DETAILED TO THE AIR CORPS FOR TRAINING AS FLYING OFFICERS EXCEPT THAT THE TOTAL NUMBER OF OFFICERS ALLOTTED TO THE AIR CORPS SHALL NOT BE EXCEEDED. FLYING UNITS SHALL IN ALL CASES BE COMMANDED BY FLYING OFFICERS. WHEREVER USED IN THIS ACT A FLYING OFFICER IN TIME OF PEACE IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT.

THAT IN TIME OF WAR A FLYING OFFICER MAY INCLUDE ANY OFFICER WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT AND ALSO IN TIME OF WAR MAY INCLUDE ANY OFFICER WHO HAS RECEIVED AN AERONAUTICAL RATING AS OBSERVER. OFFICERS AND ENLISTED MEN OF THE ARMY SHALL RECEIVE AN INCREASE OF 50 PERCENTUM OF THEIR PAY WHEN BY ORDERS OF COMPETENT AUTHORITY THEY ARE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AND WHEN IN CONSEQUENCE OF SUCH ORDERS THEY DO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BY, PROMULGATED BY THE PRESIDENT.

SECTION 3 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, PROVIDES:

THE SIXTH PROVISO OF SECTION 2, ACT OF JULY 2, 1926 (44 STAT. L. 781), IS HEREBY AMENDED BY STRIKING OUT THE WORDS "WHENEVER USED IN THIS ACT A FLYING OFFICER IN TIME OF PEACE IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF/SERVICE TYPES OF AIRCRAFT," AND BY SUBSTITUTING IN LIEU THEREOF THE FOLLOWING: "A FLYING OFFICER IN TIME OF PEACE IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER: PROVIDED, THAT IN TIME OF PEACE NO ONE MAY BE RATED AS AN AIRCRAFT OBSERVER UNLESS HE HAS PREVIOUSLY QUALIFIED AS A PILOT: PROVIDED FURTHER, THAT ANY OFFICER RATED AS AN AIRCRAFT OBSERVER IN TIME OF WAR MUST SUBSEQUENTLY QUALIFY AS A PILOT BEFORE HE CAN QUALIFY AS AN OBSERVER IN TIME OF PEACE FOLLOWING SUCH WAR.'

IT WILL BE NOTED THAT THE ABOVE SECTION DID NOT AFFECT THE NINTH PROVISO TO SECTION 13A OF THE NATIONAL DEFENSE ACT, AS AMENDED.

THE ACT OF OCTOBER 4, 1940, 54 STAT. 963, READS AS FOLLOWS:

SEC. 1. THE FOURTH AND FIFTH PROVISOS OF SECTION 13A OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 2 OF THE ACT OF JULY 2, 1926 (44 STAT. 781), AND THE SIXTH PROVISO OF SAID ACT AS AMENDED BY SECTION 2 OF THE ACT OF JULY 2, 1926 (44 STAT. 781), AND SECTION 3 OF THE ACT OF JUNE 16, 1936 (49 STAT. 1524), INCLUDING THE TWO PROVISOS ADDED BY THE ACT LAST- MENTIONED, ARE FURTHER AMENDED TO READ AS FOLLOWS: "PROVIDED FURTHER, THAT IN ORDER TO INSURE THAT THE COMMISSIONED OFFICERS OF THE AIR CORPS SHALL BE PROPERLY QUALIFIED FLYING OFFICERS AND, FOR THE PURPOSE OF GIVING OFFICERS OF THE ARMY AN OPPORTUNITY SO TO QUALIFY, THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO DETAIL OFFICERS TO THE AIR CORPS FOR TRAINING AS FLYING OFFICERS, AND SUCH OFFICERS SHALL START FLYING TRAINING IMMEDIATELY UPON BEING SO DETAILED: PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO LIMIT THE NUMBER OF OFFICERS WHO MAY BE DETAILED TO THE AIR CORPS FOR TRAINING AS FLYING OFFICERS: PROVIDED FURTHER, THAT THE LIMITATION ON THE NUMBER OF OFFICERS OF THE SEVERAL BRANCHES OF THE ARMY WHO MAY BE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IMPOSED BY SECTION 20 OF THE ACT OF JUNE 10, 1922 (42 STAT. 632), AS AMENDED BY SECTION 6 OF THE CT OF JULY 2, 1926 (44 STAT. 782), SHALL NOT APPLY TO OFFICERS OF THE SEVERAL BRANCHES OF THE ARMY DETAILED TO THE AIR CORPS FOR TRAINING AND DUTY AS AIRCRAFT OBSERVERS OR AS OTHER MEMBERS OF COMBAT CREWS: PROVIDED FURTHER, THAT FLYING UNITS SHALL IN ALL CASES BE COMMANDED BY FLYING OFFICERS WHO HAVE RECEIVED AERONAUTICAL RATINGS AS PILOTS OF SERVICE TYPES OF AIRCRAFT AND WHO ARE COMMISSIONED IN THE AERONAUTICAL RATINGS AS PILOTS OF SERVICE TYPES OF AIRCRAFT: PROVIDED FURTHER, THAT A FLYING OFFICER IS DEFINED AS ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER OR AS ANY OTHER MEMBER OF A COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE.'

SEC. 2. SUCH LAWS AND PARTS OF LAWS AS MAY BE INCONSISTENT WITH THE FOREGOING ARE HEREBY REPEALED.

THE ABOVE ACT MADE NO AMENDMENT TO AND HENCE DID NOT AFFECT THE NINTH PROVISO OF SECTION 13A OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF JULY 2, 1926. WHILE SECTION 2 OF THE ACT OF OCTOBER 4, 1940, REPEALED SUCH LAWS AND PARTS OF LAWS AS WERE INCONSISTENT WITH SECTION 1 OF THE ACT, THERE APPEARS TO BE NO INCONSISTENCY BETWEEN SAID SECTION 1AND THE SAID NINTH PROVISO OF THE AMENDED SECTION 13A INSOFAR AS CONCERNS PERMISSIVE AUTHORITY TO INCLUDE AS A FLYING OFFICER IN TIMES OF WAR,"ANY OFFICER WHO HAS RECEIVED AN AERONAUTICAL RATING AS OBSERVER.'

ACCORDINGLY, IN TIME OF WAR, THE TERM "FLYING OFFICER" MAY INCLUDE ANY OFFICER "WHO HAS RECEIVED AN AERONAUTICAL RATING AS OBSERVER," REGARDLESS OF WHETHER HE HAS BEEN ASSIGNED AS A MEMBER OF A COMBAT CREW.

HOWEVER, THE AUTHORITY TO INCLUDE SUCH OFFICERS APPEARS TO BE WITHIN THE ADMINISTRATIVE DISCRETION OF THE PROPER OFFICIALS OF THE NAVAL SERVICE, AND THEIR RIGHT TO 50 PERCENT INCREASE IN PAY AS FLYING OFFICERS, FLIGHT REQUIREMENTS BEING MET, WOULD NOT LAWFULLY ACCRUE PRIOR TO THE RECEIPT BY THEM OF AN AERONAUTICAL RATING AS OBSERVER, AS PERMITTED UNDER THE SAID NINTH PROVISO OF SECTION 2 OF THE ACT OF JULY 2, 1926, SUPRA. ..END :