B-156272, MAR. 29, 1965

B-156272, MAR. 29, 1965

TO MAJOR RUDOLPH W. BEALE, 4 021 214:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25, 1965, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION, DATED JANUARY 27, 1965, WHICH DISALLOWED YOUR CLAIM FOR FLIGHT PAY AS CREW MEMBER FOR THE PERIOD AUGUST 1 TO OCTOBER 31, 1963, AS CAPTAIN, UNITED STATES ARMY.

BY LETTER DATED DECEMBER 13, 1963, OF HEADQUARTERS, UNITED STATES ARMY EUROPE, APO 403, U.S. FORCES, YOU WERE INTERMEDIATELY SUSPENDED FROM FLYING STATUS, EFFECTIVE AUGUST 1, 1963, PURSUANT TO THE PROVISIONS OF PARAGRAPH 4A (4) (A), AR 600-107, PENDING FURTHER MEDICAL EVALUATION. LETTER DATED FEBRUARY 14, 1964, OF HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF PERSONNEL OPERATIONS, WASHINGTON, D.C., VERBAL ORDERS OF THE CHIEF OF STAFF, U.S. ARMY, OF DECEMBER 10, 1963, WHICH INDEFINITELY SUSPENDED YOU FROM FLYING STATUS, WERE CONFIRMED.

YOU CLAIMED FLIGHT PAY UNDER THE PROVISIONS OF PARAGRAPH 2-60.1, AR 37- 104. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT IT DOES NOT APPEAR YOU WERE A MEMBER WHOSE FLIGHT REQUIREMENTS HAD BEEN SUSPENDED UNDER THE PROVISIONS OF APPLICABLE LAW.

PARAGRAPH 2-60.1, AR 37-104, PROVIDES AS FOLLOWS:

"A. INCAPACITATED AS RESULT OF PERFORMANCE OF HAZARDOUS DUTY OR FOR ANY REASON OTHER THAN PERFORMANCE OF HAZARDOUS DUTY. ANY MEMBER FOR WHOM THE FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED, WHO BECOMES INJURED OR OTHERWISE INCAPACITATED AS A RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED OR BECOMES INCAPACITATED FOR ANY REASON OTHER THAN AS A RESULT OF PERFORMANCE OF HAZARDOUS DUTY TO WHICH ORDERED, WILL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR A 3-MONTH GRACE PERIOD AUTHORIZED BY SECTION 10 OF EXECUTIVE ORDER 10152, COMMENCING ON THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE INCAPACITY OCCURRED.

"B. FLIGHT REQUIREMENTS SUSPENDED FOR OTHER THAN INCAPACITY. ANY MEMBER FOR WHOM FLIGHT REQUIREMENTS HAVE BEEN SUSPENDED AND WHO IS SUSPENDED FROM FLYING STATUS FOR REASONS OF OTHER THAN INCAPACITY, AND SUCH SUSPENSION IS SUBSEQUENTLY REMOVED, WILL BE ENTITLED TO RECEIVE INCENTIVE PAY FOR THE PERIOD CONCERNED, PROVIDED THE SUSPENSION IS REMOVED WITHIN A 3-MONTH PERIOD COMMENCING ON THE DATE OF SUSPENSION.

"C. SUSPENSION FROM FLYING STATUS WHEN INCAPACITATED FOR A PERIOD OF 3 CONSECUTIVE MONTHS. ANY MEMBER WHO REMAINS INCAPACITATED FOR A PERIOD OF 3 CONSECUTIVE MONTHS FROM THE FIRST OF THE MONTH FOLLOWING THE MONTH IN WHICH THE INCAPACITY OCCURRED, WILL BE SUSPENDED FROM FLYING AT THE EXPIRATION OF THE 3-MONTH GRACE PERIOD.'

THE QUOTED REGULATIONS RELATE TO MEMBERS WHO WERE EXCUSED FROM PERFORMING MINIMUM FLIGHT REQUIREMENTS WITHOUT LOSS OF INCENTIVE PAY, EITHER BECAUSE THEY HAD HELD AERONAUTICAL RATINGS FOR TWENTY YEARS OR BECAUSE THEIR PARTICULAR ASSIGNMENTS OUTSIDE THE UNITED STATES OR IN ALASKA MADE IT IMPRACTICAL TO PARTICIPATE IN REGULAR FLIGHTS, UNDER THE PROVISIONS OF SECTION 614 OF DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, PUB.L. 86- 166, APPROVED AUGUST 18, 1959, 73 STAT. 380, AND SIMILAR PROVISIONS OF LAW. SEE OUR DECISION, B-140799, OF FEBRUARY 25, 1960, 39 COMP. GEN. 604, COPY HEREWITH, AND SECTION 514 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1964, PUB.L. 88-149, APPROVED OCTOBER 17, 1963, 77 STAT. 266, EFFECTIVE DURING THE PERIOD OF YOUR CLAIM. SUCH REGULATIONS DO NOT APPEAR TO COVER YOUR SITUATION.

INCENTIVE PAY FOR HAZARDOUS DUTY IS PAYABLE TO A MEMBER OF THE UNIFORMED SERVICES FOR THE PERFORMANCE OF HAZARDOUS DUTY ONLY WHEN SUCH DUTY IS REQUIRED BY COMPETENT ORDERS. YOUR FLIGHT ORDERS WERE SUSPENDED EFFECTIVE AUGUST 1, 1963, FOR PHYSICAL INCAPACITY. THE RECORD CONTAINS NO DETERMINATION THAT SUCH INCAPACITY WAS THE RESULT OF THE PERFORMANCE OF HAZARDOUS DUTY (AVIATION ACCIDENT OR OTHERWISE) AND THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THE SUSPENSION OF YOUR FLYING STATUS WAS EVER SUBSEQUENTLY REMOVED.

PARAGRAPH 2-62J (1) OF AR 37-104 PROVIDES AS FOLLOWS:

"A MEMBER IS NOT ENTITLED TO RECEIVE INCENTIVE PAY FOR PARTICIPATION IN AERIAL FLIGHTS FOR ANY PERIOD WHILE SUSPENDED FROM SUCH PARTICIPATION, UNLESS THE SUSPENSION IS SUBSEQUENTLY REMOVED AND THE MINIMUM FLIGHT REQUIREMENTS COMPLIED WITH, EXCEPT WHEN THE SUSPENSION IS THE RESULT OF AN AVIATION ACCIDENT.'

THUS, IN THE ABSENCE OF EVIDENCE THAT SUSPENSION OF YOUR FLIGHT ORDERS WAS REMOVED BEFORE THE EXPIRATION OF THREE MONTHS SUBSEQUENT TO AUGUST 1, 1963, AND THAT YOU FULFILLED ALL THE REQUIREMENTS FOR THE PERFORMANCE OF HAZARDOUS DUTY FOR THE THREE MONTHS COVERED BY YOUR CLAIM BEFORE OCTOBER 31, 1963, NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF FLIGHT PAY SUBSEQUENT TO THE DATE YOUR FLIGHT ORDERS WERE SUSPENDED.