B-164121, AUGUST 19, 1968, 48 COMP. GEN. 81

B-164121, AUGUST 19, 1968, 48 COMP. GEN. 81

PAY - AVIATION DUTY - SUSPENSION FROM FLYING DUTY - ADMINISTRATION ACTION REQUIRED ALTHOUGH AN AIR FORCE OFFICER FAILED TO SATISFY THE REQUIREMENT FOR AN ANNUAL PHYSICAL EXAMINATION TO QUALIFY FOR FLYING PAY, HIS FLYING ORDERS REMAINED IN EFFECT UNTIL TERMINATED BY THE BASE COMMANDER OR AIR TACTICAL UNIT AND, THEREFORE, THE SUSPENSION OF HIS FLIGHT PAY ABSENT ORDERS DIRECTED THE SUSPENSION WAS INEFFECTIVE AND THE OFFICER IS ENTITLED TO THE FLIGHT PAY RECEIVED TO DATE PAYMENT WAS UNOFFICIALLY SUSPENDED AND TO PAYMENT FOR THE PERIOD FROM DATE OF PAY SUSPENSION UNTIL THE DATE HIS FLYING STATUS WAS OFFICIALLY TERMINATED.

TO LIEUTENANT COLONEL K. P. RITTER, DEPARTMENT OF THE AIR FORCE, AUGUST 19, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1968, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING REPAYMENT OF CERTAIN FLIGHT PAY PREVIOUSLY COLLECTED AND PAYMENT OF FLIGHT PAY FOR THE PERIOD MARCH 1 TO AUGUST 31, 1967, TO MAJOR PAUL D. MARKS, FR27026, IN THE CIRCUMSTANCES DESCRIBED THEREIN. THE SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. DO- AF-995 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, AND TRANSMITTED HERE ON APRIL 19, 1968.

YOU STATE THAT EFFECTIVE JULY 1, 1962, MAJOR MARKS' FLYING STATUS CODE WAS CHANGED FROM CODE 1 TO CODE 3, THE LATTER CODE REQUIRING AN ANNUAL PHYSICAL EXAMINATION. YOU SAY THAT DURING THE PERIOD JULY 1962 TO JULY 1964, WHEN MAJOR MARKS WAS STATIONED AT FORT CHURCHILL, WINNIPEG, CANADA, A PHYSICAL EXAMINATION WAS WAIVED BY THE SURGEON GENERAL FOR MILITARY PERSONNEL STATIONED THERE AND, THEREFORE, THE OFFICER WAS NOT REQUIRED TO TAKE AN ANNUAL PHYSICAL DURING THAT PERIOD. YOU REPORT, HOWEVER, THAT, WHEN HE ARRIVED AT VANDENBERG AIR FORCE BASE, CALIFORNIA, ON AUGUST 10, 1964, HE FAILED TO TAKE AN ANNUAL FLIGHT PHYSICAL EXAMINATION AS PRESCRIBED IN AIR FORCE MANUAL 160-1 UNTIL MAY 1, 1967.

IT IS REPORTED THAT DURING THE MONTH OF JANUARY 1967 A ROUTINE CHECK OF ALL VANDENBERG BASE PERSONNEL IN CODE 3 WAS MADE BY THE FLIGHT RECORDS SECTION AND IT WAS NOTED AT THAT TIME THAT THERE WAS NO SUBSTANTIATING RECORD ON FILE TO AUTHORIZE MAJOR MARKS TO RECEIVE FLIGHT PAY. FEBRUARY 27, 1967, A MILITARY PAY ORDER WAS ACCOMPLISHED BY THE OFFICER IN CHARGE OF FLIGHT RECORDS REQUESTING SUSPENSION OF MAJOR MARK'S FLIGHT PAY SINCE THE FLIGHT SURGEON'S OFFICE HAD NO RECORD INDICATING THE OFFICER HAD COMPLETED AN ANNUAL PHYSICAL EXAMINATION SINCE ARRIVING AT VANDENBERG AIR FORCE BASE ON AUGUST 10, 1964. ON THE BASIS OF THAT MILITARY PAY ORDER, PAYMENT OF FLIGHT PAY WAS SUSPENDED EFFECTIVE MARCH 1, 1967, AND ON APRIL 26, 1967, THE OFFICER WAS ADVISED ,THAT A COLLECTION" OF $7,368 HAD BEEN ENTERED ON HIS MILITARY PAY RECORD REPRESENTING "RECOUPMENT OF FLIGHT PAY" FOR THE PERIOD AUGUST 10, 1964, THROUGH FEBRUARY 28, 1967. IT IS STATED THAT AN INVESTIGATION WAS ORDERED BECAUSE OF THE FAILURE OF THE OFFICER TO COMPLETE HIS ANNUAL PHYSICAL AND THAT COLLECTION ACTION WAS SUSPENDED AFTER COLLECTION OF $884.16 FROM HIM.

MAJOR MARKS STATED, AS REPORTED IN YOUR LETTER, THAT HE WAS NOT AWARE, UNTIL APPROXIMATELY 6 MONTHS AFTER HIS ARRIVAL AT VANDENBERG AIR FORCE BASE OF THE REQUIREMENT THAT CODE 3 FLIGHT PERSONNEL MUST REMAIN PHYSICALLY QUALIFIED BEFORE THEY CAN RECEIVE FLIGHT PAY. IT IS REPORTED THAT HE HAD HIS LAST PHYSICAL (PRIOR TO THE ONE TAKEN IN MAY 1967) IN JUNE 1962 AND HIS REASON FOR NOT TAKING SUCH EXAMINATION SOONER WAS THAT HE WAS NOT NOTIFIED THAT HE WAS DELINQUENT UNTIL JANUARY 1967. HE WAS PHYSICALLY EXAMINED ON MAY 1, 1967, AND WAS FOUND TO BE PHYSICIALLY DISQUALIFIED FOR FLYING. BY ORDERS DATED AUGUST 25, 1967, HE WAS SUSPENDED FROM FLYING STATUS EFFECTIVE SEPTEMBER 1, 1967, BY REASON OF PHYSICAL DISQUALIFICATION FOR FLYING DUTY.

PARAGRAPH 2-29G, AIR FORCE MANUAL 35-13G, STATES (UNDER NOTE), THAT AN OFFICER IN FLYING STATUS CODE 3 WHO DOES NOT COMPLETE HIS ANNUAL MEDICAL EXAMINATION BY HIS BIRTHDAY WILL BE CONSIDERED AS NOT MEDICALLY QUALIFIED FOR FLYING STATUS. IT IS FURTHER STATED THAT THE 3-MONTH GROUNDING PERIOD WILL DATE FROM THE FIRST DAY OF THE MONTH FOLLOWING HIS BIRTHDAY. PARAGRAPH 2-28 OF THE SAME REGULATION STATES THAT THE SUSPENDING AUTHORITY WILL NOTIFY THE OFFICER BEFORE THE ENSIO SUSPENSION ORDER BECOMES EFFECTIVE. APPLYING THOSE PROVISIONS TO MAJOR MARKS' CASE, YOU SAY THAT THE OFFICER SHOULD HAVE BEEN GROUNDED NOT LATER THAN JULY 1, 1965 (BIRTHDATE, JUNE 10, 1965), AND THAT ORDERS SUSPENDING HIM FROM FLIGHT STATUS SHOULD HAVE BEEN ISSUED EFFECTIVE OCTOBER 1, 1965. YOU STATE, HOWEVER, THAT THERE IS NO EVIDENCE AVAILABLE TO INDICATE THE OFFICER WAS EVER SUSPENDED UNTIL SEPTEMBER 1, 1967.

IN VIEW OF THE DOUBT IN THE MATTER, YOU ASK WHETHER YOU MAY REPAY MAJOR MARKS THE $884.16 PREVIOUSLY COLLECTED FROM HIM AND CREDIT HIM WITH FLIGHT PAY FOR THE PERIOD FROM MARCH 1, 1967, TO AUGUST 31, 1967, SINCE ORDERS ISSUED SUSPENDING THE MEMBER WERE NOT EFFECTIVE UNTIL SEPTEMBER 1, 1967. IF THE ANSWER IS IN THE NEGATIVE, YOU ASK FROM WHAT DATE COLLECTION OF FLIGHT PAY FROM THE OFFICER SHOULD BE REQUIRED.

ACCOMPANYING YOUR SUBMISSION IS A COPY OF A REPORT OF INVESTIGATION OF THE FAILURE OF MAJOR MARKS TO COMPLETE HIS ANNUAL FLIGHT PHYSICALS. THE REPORT NOTES THAT THERE WAS A BREAKDOWN OF ADMINISTRATIVE CONTROLS AT THE INSTALLATION TO REMIND OFFICERS OF THE NECESSITY OF TAKING PHYSICALS. THE INVESTIGATING OFFICER IN HIS REPORT CONCLUDED, AMONG OTHER THINGS, THAT:

B. IT ALSO APPEARS THAT THE PROCEDURE USED IN BASE FLIGHT, PERSONNEL, FINANCE AND THE SURGEON'S OFFICE LACK COORDINATION. NONE OF THESE OFFICES TOOK ANY STEPS THAT WOULD BE REQUIRED PRIOR TO THE COMMANDER KNOWING OF HIS RESPONSIBILITY TO CONDUCT AN INVESTIGATION AS HE WAS REQUIRED TO DO PURSUANT TO PARAGRAPH 2-29M OF AFM 35-13G. LACK OF THIS COORDINATION CONTRIBUTED TO MARKS BEING ALLOWED TO COLLECT FLIGHT PAY FROM 10 AUGUST 1964, THE DATE OF HIS ARRIVAL AT VANDENBERG AIR FORCE BASE, UNTIL 1 MAY (MARCH) 1967, THE DATE OF HIS PHYSICAL WITHOUT ANNUAL PHYSICAL EXAMINATIONS.

SECTION 103 (A) OF EXECUTIVE ORDER NO. 11157 DATED JUNE 22, 1964, PROMULGATED PURSUANT TO 37 U.S.C. 301 (A), AUTHORIZES PAYMENT OF INCENTIVE PAY FOR FLYING DUTY TO A MEMBER WHO IS REQUIRED BY "COMPETENT ORDERS" TO PARTICIPATE FREQUENTLY AND REGULARLY IN AERIAL FLIGHTS AND SECTION 113 OF THE EXECUTIVE ORDER AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUPPLEMENTAL REGULATIONS TO CARRY OUT THE PRESIDENT'S REGULATIONS.

WITH RESPECT TO FLYING STATUS ORDERS, PARAGRAPH 2-11, AIR FORCE MANUAL 35 -13G, STATES THAT UNLESS "SUSPENDED" UNDER PARAGRAPH 2-29, THE ORDERS THAT REQUIRE A RATED OFFICER TO FLY FREQUENTLY AND REGULARLY WILL BE EFFECTIVE AS LONG AS HE HOLDS A CONTINUOUS COMMISSION IN THE AIR FORCE OR ITS RESERVE COMPONENTS. PARAGRAPH 2-29 LISTS VARIOUS REASONS FOR SUSPENDING AN OFFICER FROM FLYING STATUS, INCLUDING AN OFFICER WHO IS PHYSICALLY DISQUALIFIED AS PROVIDED IN SUBPARAGRAPH G. IN THIS CATEGORY, AS NOTED ABOVE, A MEMBER WHO DOES NOT COMPLETE HIS ANNUAL MEDICAL EXAMINATION IS CONSIDERED AS NOT MEDICALLY QUALIFIED FOR FLYING STATUS. PARAGRAPH 2-29 WAS FURTHER AMENDED BY CHANGE G DATED MARCH 10, 1966, BY ADDING A NEW SUBPARAGRAPH "M" WHICH STATES THAT THE FAILURE OF AN OFFICER TO ACCOMPLISH AN ANNUAL PHYSICAL EXAMINATION AS PRESCRIBED IN AIR FORCE MANUAL 160-1 WILL BE VIEWED IN THE SAME MANNER AS THE FAILURE TO MEET SPECIFIED ANNUAL FLIGHT REQUIREMENTS AND THE OFFICER WILL BE REMOVED FROM FLYING STATUS UNTIL HIS ANNUAL PHYSICAL IS SUBSEQUENTLY ACCOMPLISHED.

WHILE THE ABOVE REGULATIONS LEAVE NO DOUBT THAT A MEMBER IN THIS CATEGORY IS TO BE SUSPENDED FROM FLYING STATUS, WE FIND NOTHING IN THOSE REGULATIONS WHICH DIRECTS AN AUTOMATIC SUSPENSION FROM FLYING DUTY IN THE ABSENSE OF ORDERS ISSUED BY THE BASE COMMANDER OR AIR TACTICAL UNIT EXPRESSLY SUSPENDING THE MEMBER FROM FLYING STATUS. SEE PARAGRAPH 2-29A (1) (B) OF THE SAME REGULATIONS.

SINCE UNDER THE REGULATIONS AN OFFICERS' FLYING DUTY ORDERS CONTINUE IN EFFECT UNTIL SUSPENDED, IT IS OUR VIEW THAT MAJOR MARKS FLYING STATUS WAS NOT OFFICIALLY TERMINATED UNTIL SEPTEMBER 1, 1967, IN ACCORDANCE WITH ORDERS DATED AUGUST 25, 1967, AND THAT HE CONTINUED IN A FLYING PAY STATUS THROUGH AUGUST 31, 1967, SO AS TO BE ENTITLED TO THE FLIGHT PAY IN QUESTION PROVIDED HE OTHERWISE MET THE FLIGHT REQUIREMENTS. SEE 37 COMP. GEN. 282. CF. 36 COMP. GEN. 57. ACCORDINGLY, THE OFFICER IS ENTITLED TO REPAYMENT OF THE AMOUNTS COLLECTED FROM HIM AND YOU ARE AUTHORIZED TO CREDIT HIM WITH FLIGHT PAY FOR THE PERIOD MARCH 1, TO AUGUST 31, 1967, IF OTHERWISE CORRECT. THE MILITARY PAY ORDER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.