B-145095, MAY 29, 1961

B-145095, MAY 29, 1961

TO CHIEF WARRANT OFFICER ROSS N. HUGUET, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1961, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF DECEMBER 5, 1960, DISALLOWING YOUR CLAIM FOR AVIATION PAY FOR THE PERIOD OCTOBER 1, 1951, TO MARCH 31, 1952, WHILE YOU WERE SERVING ON ACTIVE DUTY AS A WARRANT OFFICER, UNITED STATES AIR FORCE.

APPLICABLE PROVISIONS OF LAW AND REGULATION DEALING WITH INCREASE IN PAY FOR AVIATION DUTY INCLUDE A TWO-FOLD REQUIREMENT FOR ELIGIBILITY--- THE HOLDING OF AN AERONAUTICAL RATING SHOWING QUALIFICATION FOR FLYING DUTY AND PARTICIPATION IN FREQUENT AND REGULAR AERIAL FLIGHTS UNDER COMPETENT ORDERS.

YOU WERE FIRST RATED AS AN AIRPLANE PILOT BY ORDERS OF FEBRUARY 23, 1923. PERSONNEL ORDERS NO. 76, DATED APRIL 1, 1925, PLACED YOU, ALONG WITH OTHER RESERVE OFFICERS,"ON DUTY INVOLVING FLYING FOR SUCH PERIODS AS THEY MAY BE CALLED TO ACTIVE DUTY.' AT THAT TIME YOU WERE A SECOND LIEUTENANT IN THE AIR CORPS RESERVE. SINCE YOU CONTINUED TO HOLD A COMMISSION IN THE AIR CORPS RESERVE AND THE AIR FORCE RESERVE WITHOUT ANY BREAK, THE ORDERS OF APRIL 1, 1925, WOULD HAVE AUTHORIZED FLYING DUTY DURING THE PERIOD OF YOUR CLAIM IF YOU HAD BEEN CALLED TO ACTIVE DUTY UNDER YOUR RESERVE COMMISSION. IT APPEARS THAT YOU SERVED ON ACTIVE DUTY AS A RESERVE COMMISSIONED OFFICER AT DIFFERENT PERIODS OF TIME, THE LAST BEING FROM DECEMBER 1, 1940, TO NOVEMBER 5, 1946. IT IS SHOWN THAT YOU ENLISTED IN THE REGULAR ARMY ON NOVEMBER 6, 1946, AND THAT YOU WERE SERVING AS A WARRANT OFFICER DURING THE PERIOD OF YOUR CLAIM.

THE PROVISIONS OF PARAGRAPH 1 (A), EXECUTIVE ORDER NO. 9195, JUNE 7, 1942, CITED IN THE SETTLEMENT OF DECEMBER 5, 1960, INDICATE THAT WARRANT OFFICERS AND ENLISTED MEN, AS WELL AS COMMISSIONED OFFICERS, COULD ACHIEVE AN AIRCRAFT PILOT RATING PRIOR TO JULY 2, 1926. OTHER PROVISIONS IN THE EXECUTIVE ORDER DIRECTED THE ISSUANCE OF ORDERS REQUIRING PERSONNEL WITH SUCH RATING TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS, WHICH SHOULD REMAIN IN FORCE DURING THE PERIOD OF THE COMMISSION, DUTY OR ASSIGNMENT. WHILE YOU APPEAR TO REGARD SUCH REGULATIONS AS FURNISHING SUFFICIENT AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, SECOND INDORSEMENT OF DECEMBER 21, 1953, FROM HEADQUARTERS, UNITED STATES AIR FORCE, SUBMITTED WITH YOUR CLAIM, QUOTED FROM AN EARLIER INDORSEMENT OF OCTOBER 7, 1949, TO THE EFFECT THAT IT THEN WAS AIR FORCE POLICY THAT ONLY COMMISSIONED OFFICERS BE USED AS PILOTS AND STATED FURTHER THAT "THERE WAS NOT THEN, AND IS NOT NOW ANY PROVISION FOR PLACING A WARRANT OFFICER ON FLYING STATUS AS A PILOT.' SINCE WARRANT OFFICERS WERE NOT GRANTED AERONAUTICAL RATINGS AS PILOTS DURING THE PERIOD INVOLVED AND SINCE THE ORDERS OF APRIL 1, 1925, COVERED ONLY FLYING IN YOUR STATUS AS A RESERVE COMMISSIONED OFFICER, SUCH ORDERS DID NOT DIRECT THE FLIGHTS PERFORMED BY YOU AS A WARRANT OFFICER AND THEY MAY NOT BE ACCEPTED AS COMPETENT ORDERS FOR THAT PURPOSE.

THE FOLLOWING REGULATIONS ALSO ARE FOR CONSIDERATION IN THIS REDUCTION IN THE ARMED FORCES, SOME ADJUSTMENTS IN POLICY WERE REQUIRED WITH RESPECT TO UTILIZATION OF THE SERVICES OF RATED FLYING OFFICERS. AIR FORCE REGULATION 35-35, DATED AUGUST 23, 1948, STATING THIS POLICY, PROVIDED IN PART AS FOLLOWS:

"2. LIMITED FACILITIES. PRESENT AIR FORCE FACILITIES LIMIT THE INACTIVE DUTY TRAINING WHICH CAN BE MADE AVAILABLE TO AIR FORCE RESERVE OFFICERS. IN ORDER THAT THE AIR FORCE MAY DERIVE THE GREATEST BENEFIT FROM ITS AVAILABLE TRAINING FACILITIES, IT HAS BEEN CONSIDERED ADVISABLE TO CONTINUE THE FLYING PROFICIENCY OF AIR FORCE RESERVISTS ON INACTIVE STATUS ONLY AND TO ELIMINATE THE FLYING PROFICIENCY TRAINING OF AIR FORCE RESERVE OFFICERS ON ACTIVE DUTY WITH OTHER BRANCHES OF THE SERVICE OR WITH THE AIR FORCE AS WARRANT OFFICERS AND ENLISTED MEN.

"3. POLICY.

A. RATED AIR FORCE RESERVE OFFICERS SERVING IN THE AIR FORCE AS WARRANT OFFICERS OR ENLISTED MEN WILL BE GOVERNED BY THE FOLLOWING POLICIES:

(1) THEY WILL NOT BE UTILIZED AS AIR FORCE RESERVE OFFICERS TO PERFORM RATED DUTIES WITH THE AIR FORCE.

(2) THEY WILL NOT BE CALLED TO ACTIVE DUTY AS OFFICERS FOR THE PURPOSE OF TRAINING (AUTH: WD AGO LETTER, AGPR-D-A- 210.31 (16 APRIL 1947), 22 APRIL 1947, SUBJECT: "CALL TO ACTIVE DUTY FOR TRAINING OF RESERVE OFFICERS CURRENTLY SERVING IN REGULAR ARMY ENLISTED STATUS").

(3) THEY WILL NOT BE AUTHORIZED TO MAINTAIN FLYING PROFICIENCY AS AIR FORCE RESERVE OFFICERS ON INACTIVE STATUS.

(4) WHEN RECALLED TO EXTENDED ACTIVE DUTY AS AIR FORCE RESERVE OFFICERS, SUCH RATED AIR FORCE PERSONNEL WILL, IF OTHERWISE QUALIFIED, BE GIVEN REFRESHER FLYING TRAINING TO QUALIFY THEM FOR ASSIGNED FLYING DUTIES.

(5) UPON TERMINATION OF WARRANT OFFICER OR ENLISTED STATUS IN THE AIR FORCE, SUCH PERSONNEL WILL, IF QUALIFIED FACILITIES ARE AVAILABLE, BE GIVEN AN OPPORTUNITY TO PARTICIPATE IN FLYING TRAINING ON AN INACTIVE STATUS.'

THE FOREGOING REGULATIONS DID NOT CONTEMPLATE THE PERFORMANCE OF FLIGHTS TO MAINTAIN FLYING PROFICIENCY BY RESERVE COMMISSIONED OFFICERS WHILE SERVING ON ACTIVE DUTY AS ENLISTED MEN OR WARRANT OFFICERS. CLEARLY, SUCH REGULATIONS APPLIED TO THE SITUATIONS OF RESERVE COMMISSIONED OFFICERS WITH ORDERS REQUIRING FLIGHTS DURING PERIODS OF ACTIVE DUTY AS COMMISSIONED OFFICERS.

SECTION 633 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1952, 65 STAT. 450, CONTAINED THE FOLLOWING RESTRICTION ON PAYMENT OF FLYING PAY. "NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAYMENT OF FLIGHT PAY TO PERSONNEL WHOSE ACTUAL ASSIGNED DUTIES DO NOT INVOLVE OPERATIONAL OR TRAINING FLIGHTS.' YOU HAVE FURNISHED NO ORDERS WHICH SHOW THAT YOUR ACTUAL ASSIGNED DUTIES AS A WARRANT OFFICER INCLUDED THE DUTY OF PERFORMING OPERATIONAL OR TRAINING FLIGHTS.

IN THE CIRCUMSTANCES, WE FIND NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE DISALLOWANCE OF DECEMBER 5, 1960, IS SUSTAINED.