B-17795, JULY 14, 1941, 21 COMP. GEN. 17

B-17795, JULY 14, 1941, 21 COMP. GEN. 17

PAY - AVIATION DUTY - SCOPE OF NONFLYING OFFICER LIMITATION THE PROVISION IN THE MILITARY APPROPRIATION ACT, 1941, LIMITING TO $720 PER ANNUM THE INCREASED PAY OF "NONFLYING OFFICERS" FOR MAKING AERIAL FLIGHTS IS APPLICABLE NOT ONLY TO THE PAY OF FLIGHT SURGEONS AND OFFICERS FROM OTHER BRANCHES WHILE FLYING IN THE CAPACITY OF OBSERVERS BUT ALSO TO THE PAY OF OFFICERS FROM ANY BRANCH OF THE ARMY WHO CANNOT BE CLASSIFIED AS "FLYING OFFICERS" UNDER THE STATUTORY DEFINITION OF THAT TERM WHILE UNDERGOING TRAINING AS AIRCRAFT PILOTS, OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JULY 14, 1941:

I HAVE YOUR LETTER OF JUNE 12, 1941, AS FOLLOWS:

THE MILITARY APPROPRIATION ACT, 1941, APPROVED JUNE 13, 1940 ( PUBLIC NO. 611, 76TH CONGRESS), CONTAINS THE FOLLOWING PROVISION:

"FOR PAY OF COMMISSIONED OFFICERS, * * * AVIATION INCREASE TO COMMISSIONED AND WARRANT OFFICERS OF THE ARMY, INCLUDING NOT TO EXCEED EIGHTY-SIX MEDICAL OFFICERS * * * NONE OF WHICH SHALL 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.'

THE MILITARY APPROPRIATION ACT, 1940, AND PRIOR ACTS CONTAINED LANGUAGE WHICH LIMITED AVIATION INCREASE PAYMENTS TO $1,440 PER ANNUM FOR NONFLYING OFFICERS (EXCEPT FLIGHT SURGEONS), BUT PRESCRIBED NO FLIGHT REQUIREMENTS FOR SUCH OFFICERS.

SECTION 13A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 2 OF THE ACT APPROVED JULY 2, 1926 (44 STAT. 780, 781), PRESCRIBES THAT " OFFICERS AND ENLISTED MEN 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 BE, PROMULGATED BY THE PRESIDENT.'

THE TERM "FLYING OFFICER" WAS DEFINED IN THE ACT APPROVED JULY 2, 1926, SUPRA, AS AN OFFICER WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT. SAID DEFINITION HAS, HOWEVER, BEEN AMENDED BY SECTION 3, ACT APPROVED JUNE 16, 1936 (49 STAT. 1524), AND FURTHER AMENDED BY SECTION 1, ACT APPROVED OCTOBER 4, 1940 ( PUBLIC NO. 795, 76TH CONGRESS), TO READ AS FOLLOWS:

" * * * 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.'

EXECUTIVE ORDER NO. 5865, DATED JUNE 27, 1932, ISSUED PURSUANT TO THE PROVISIONS OF SECTION 20 OF THE ACT OF JUNE 10, 1922, AND SECTION 6 OF THE ACT OF JULY 2, 1926, PRESCRIBES THAT:

"EACH OFFICER, WARRANT OFFICER, OR ENLISTED MAN OF THE ARMY WHO IS DULY ASSIGNED TO A COURSE OF INSTRUCTION FOR QUALIFICATION AS AIRCRAFT PILOT OR AIRCRAFT OBSERVER * * * SHALL BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.'

THIS EXECUTIVE ORDER ALSO PRESCRIBES FLIGHT REQUIREMENTS FOR PERSONNEL WHO ARE DETAILED TO DUTY REQUIRING PARTICIPATION REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS AS FOLLOWS:

"/A) DURING ONE CALENDAR MONTH.--- 10 OR MORE FLIGHTS TOTALING AT LEAST 3 HOURS, OR IN LIEU THEREOF BE IN THE AIR A TOTAL OF AT LEAST 4 HOURS.

"/B) DURING 2 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (A) ABOVE HAVE NOT BEEN MET.--- 20 OR MORE FLIGHTS TOTALING AT LEAST 6 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST 8 HOURS.

"/C) DURING 3 CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (B) ABOVE HAVE NOT BEEN MET.--- 30 OR MORE FLIGHTS TOTALING AT LEAST 9 HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST 12 HOURS.'

DURING THE PAST SEVERAL YEARS OFFICERS FROM VARIOUS BRANCHES OF THE ARMY HAVE BEEN SENT TO THE (AIR CORPS TRAINING CENTER FOR TRAINING AS AIRCRAFT PILOTS AND WHILE UNDERGOING SUCH TRAINING WERE DETAILED TO DUTY REQUIRING THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. THESE OFFICERS HELD RANK AS SECOND LIEUTENANTS AND THE $1,440 LIMITATION DID NOT AFFECT THE RATE OF INCREASED PAY THEY RECEIVED, SINCE 50 PERCENTUM OF THEIR BASE PAY WAS LESS THAN $1,440 PER ANNUM. HOWEVER, THERE ARE NOW APPROXIMATELY 150 SUCH OFFICERS UNDERGOING TRAINING AT THE AIR CORPS TRAINING CENTER FOR AIRCRAFT PILOTS, AND IT IS PROBABLE THAT A LARGER NUMBER WILL BE DETAILED TO SUCH DUTY DURING THE CURRENT FISCAL YEAR. THERE IS ALSO THE POSSIBILITY THAT SUCH OFFICERS MAY BE DETAILED FOR TRAINING AS OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC. NONE OF THESE OFFICERS CAN BE CLASSIFIED AS "FLYING OFFICERS" AS DEFINED BY LAW, BECAUSE THEY HAVE NOT BEEN RATED AS PILOTS, OBSERVERS, ETC., AND THE QUESTION ARISES AS TO WHETHER $720 IS THE MAXIMUM SUM WHICH MAY BE PAID THESE OFFICERS DURING THE CURRENT FISCAL YEAR FOR DUTY INVOLVING FLYING.

IT WOULD APPEAR FROM REPORT NO. 1912, 76TH CONGRESS, HOUSE OF REPRESENTATIVES, ON H.R. 9209, THAT THE CONGRESS DID NOT INTEND THAT THE LIMITATION IN QUESTION SHOULD INVOLVE OFFICERS UNDERGOING FLIGHT TRAINING, BUT THAT SAME WAS INTENDED TO APPLY PRIMARILY TO FLIGHT SURGEONS AND OFFICERS FROM OTHER BRANCHES WHILE FLYING IN THE CAPACITY OF OBSERVERS. OFFICERS WHO ARE ASSIGNED TO FLIGHT TRAINING WITH A VIEW TO QUALIFYING AS PILOTS, AND WHO ARE REQUIRED TO FLY REGULARLY AND FREQUENTLY AND ASSUME THE SAME HAZARDS AS FLYING OFFICERS WITH COMBAT UNITS ARE BELIEVED TO BE CLEARLY NOT WITHIN THE GROUP OF OFFICERS WHICH THE LEGISLATION IN QUESTION WAS INTENDED TO AFFECT.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE LIMITATION UPON FLYING PAY CONTAINED IN THE MILITARY APPROPRIATION ACT IS LEGALLY APPLICABLE TO THE PAY OF OFFICERS FROM BRANCHES OTHER THAN THE AIR CORPS WHILE THEY ARE UNDERGOING TRAINING AS AIRCRAFT PILOTS, OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC., WHICH REQUIRES THEM TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.

REFERENCE IS MADE IN THIS CONNECTION TO YOUR DECISION OF OCTOBER 30, 1935 (15 COMP. GEN. 359 (357) (, AND NOVEMBER 11, 1935 (15 COMP. GEN. 393).

THE PERTINENT PART OF REPORT NO. 1912 OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, IN CONNECTION WITH THE MILITARY ESTABLISHMENT APPROPRIATION BILL, FISCAL YEAR 1941 ( H.R. 9209), IS AS FOLLOWS:

* * * ESPECIAL ATTENTION PROBABLY SHOULD BE DIRECTED TO THE REDUCTION TOUCHING FLIGHT PAY OF NONFLYING OFFICERS. FOR A NUMBER OF YEARS PRIOR TO THE CURRENT FISCAL YEAR THE NUMBER OF MEDICAL OFFICERS (FLIGHT SURGEONS) IN A FLIGHT-PAY STATUS WAS LIMITED BY THE ANNUAL APPROPRIATION ACTS TO FIVE, WHO, ALONG WITH OTHER NONFLYING OFFICERS, WERE LIMITED AS TO FLIGHT PAY TO A RATE OF $1,440 PER ANNUM. FOR THE CURRENT FISCAL YEAR THE NUMBER OF FLIGHT SURGEONS WAS INCREASED ORIGINALLY TO 36 AND LATER TO 86, AND THE FLIGHT PAY WAS REDUCED TO THE RATE OF $720 PER ANNUM. THE PENDING BUDGET PROVIDES FOR CONTINUING THE NUMBER OF FLIGHT SURGEONS AT 86, BUT PUTS THE FLIGHT PAY RATE BACK TO $1,440. OF COURSE, THE $720 RATE DISCRIMINATES BETWEEN FLIGHT SURGEONS AND OTHER NONFLYING OFFICERS, OF WHOM THE BUDGET MAKES PROVISION FOR 50 ON A FULL-YEAR BASIS. THESE OTHER NONFLYING OFFICERS ARE IDENTIFIED WITH PRACTICALLY EVERY BRANCH OF THE ARMY.

THE COMMITTEE CAN SEE NO REASON FOR DISCRIMINATION, BUT IT IS NOT CONVINCED THAT THE $720 RATE IS NOT APPROPRIATE, AS ITS ALLOWANCE IS JUSTIFIABLE ONLY UPON THE GROUND OF INCREASED INSURANCE PREMIUMS. THE HAZARD CERTAINLY IS NOT AS GREAT AS IN THE CASE OF FLYING PERSONNEL, WHO ARE IN THE AIR VASTLY MORE OFTEN AND GENERALLY UNDER MORE HAZARDOUS CONDITIONS. HOWEVER THAT MAY BE, THE COMMITTEE IS PROPOSING TO ADHERE TO THE $720 RATE AND TO ESTABLISH THAT AS THE RATE FOR ALL NONFLYING OFFICERS. THIS COURSE AFFECTS NOT ONLY THE ACCOMPANYING BILL, BUT THE NAVAL APPROPRIATION BILL AS WELL, WHICH CONTAINS LANGUAGE SUBJECTING NAVAL NONFLYING PERSONNEL TO PAY RATES PRESCRIBED FOR LIKE PERSONNEL OF THE ARMY. THE NAVAL APPROPRIATION BILL, AS PASSED BY THE HOUSE, INCLUDES PROVISION FOR 20 FLIGHT SURGEONS AND 8 OBSERVERS.

WITH RESPECT TO SUCH NONFLYING PERSONNEL, UNDER PRESENT LAW, TO BE ENTITLED TO FLIGHT PAY, THEY MUST DURING EACH 3-MONTH PERIOD MAKE 30 OR MORE FLIGHTS TOTALING 9 HOURS, OR BE IN THE AIR AT LEAST 12 HOURS. IT IS SUBMITTED THAT THAT IS A PERFECTLY RIDICULOUS REQUIREMENT AS TO NONFLYING OFFICERS, PARTICULARLY AS TO FLIGHT SURGEONS, WHO, IN THE ORDINARY COURSE, MAY HAVE NO REAL OCCASION TO GO INTO THE AIR DURING SUCH A PERIOD BUT A VERY FEW TIMES. TO GET FLIGHT PAY, THEREFORE, THEY HAVE TO GO UP AND BE FLOWN AROUND WHETHER THERE BE ANY SERVICE NEED FOR SO DOING OR NOT. OVERCOME THIS SEEMINGLY FOOLISH REQUIREMENT, THE COMMITTEE HAS INCLUDED IN THE PAY APPROPRIATION A CLAUSE DESIGNED TO ENTITLE NONFLYING OFFICERS TO FLIGHT PAY FOR THE PERFORMANCE OF 3 OR MORE FLIGHTS WITHIN EACH 90-DAY PERIOD, WITHOUT REGARD TO THE DURATION OF SUCH FLIGHT OR FLIGHTS.

WHILE THIS REPORT INDICATES THAT THE ESTABLISHMENT OF A MAXIMUM FLYING PAY RATE OF $720 PER ANNUM FOR NONFLYING OFFICERS WAS INDUCED BY THE COMMITTEE'S CONCLUSION THAT THE DUTIES OF NONFLYING OFFICERS ARE GENERALLY LESS HAZARDOUS THAN THOSE OF FLYING OFFICERS, THERE IS NO CLEAR INDICATION THAT THE SAID MAXIMUM WAS INTENDED TO APPLY ONLY TO "FLIGHT SURGEONS AND OFFICERS FROM OTHER BRANCHES WHILE FLYING IN THE CAPACITY OF OBSERVERS.' IN ANY EVENT, IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT IT IS NOT PERMISSIBLE TO REFER TO COMMITTEE REPORTS, ETC., PRECEDING THE ENACTMENT OF A STATUTE IN ORDER TO ASCERTAIN ITS MEANING EXCEPT WHERE AN AMBIGUITY OR UNCERTAINTY EXISTS AS TO THE MEANING OF THE WORDS USED. COMP. GEN. 380; 14 ID. 638; 15 ID. 582. THE LIMITATION IN THE MILITARY APPROPRIATION ACT, 1941, ON "INCREASED PAY FOR MAKING AERIAL LIGHTS" IS, BY ITS TERMS, CLEARLY APPLICABLE TO ANY AND ALL NONFLYING OFFICERS. SINCE THE ACT OF OCTOBER 4, 1940, 54 STAT. 963, CONTAINS A DEFINITION OF THE TERM "FLYING OFFICER," IT FOLLOWS THAT AN OFFICER NOT CLEARLY WITHIN THE STATUTORY DEFINITION MUST BE CLASSED AS A NONFLYING OFFICER WITHIN THE MEANING OF THE LANGUAGE LIMITING FLYING PAY. YOU STATE THAT OFFICERS FROM VARIOUS BRANCHES OF THE ARMY TRAINING TO BE AIRCRAFT PILOTS, AND THOSE WHO MAY BE DETAILED FOR TRAINING AS OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC., CANNOT BE CLASSIFIED AS "FLYING OFFICERS" UNDER THE STATUTORY DEFINITION OF THAT TERM, BECAUSE THEY HAVE NOT BEEN GIVEN AN AERONAUTICAL RATING AS PILOTS, OBSERVERS, ETC. ACCORDINGLY, YOU ARE ADVISED THAT THE PROVISION IN THE MILITARY APPROPRIATION ACT, 1941, LIMITING TO $720 PER ANNUM THE INCREASED PAY OF "NONFLYING OFFICERS" FOR MAKING AERIAL FLIGHTS IS APPLICABLE TO THE PAY OF OFFICERS FROM ANY BRANCH OF THE ARMY WHILE SUCH OFFICERS ARE UNDERGOING TRAINING AS AIRCRAFT PILOTS, OBSERVERS, NAVIGATORS, BOMBARDIERS, ETC. SEE, ALSO, B 11335 TO SECRETARY OF THE NAVY AUGUST 2, 1940.