B-22993, JANUARY 24, 1942, 21 COMP. GEN. 708

B-22993, JANUARY 24, 1942, 21 COMP. GEN. 708

PAY - AVIATION DUTY - SCOPE OF NONFLYING OFFICER LIMITATION THE PROVISION IN THE MILITARY APPROPRIATION ACT, 1942, LIMITING TO $720 PER ANNUM THE INCREASED PAY OF "NONFLYING OFFICERS" FOR MAKING AERIAL FLIGHTS IS APPLICABLE TO WARRANT OFFICERS AS WELL AS TO COMMISSIONED OFFICERS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LIEUT. COL. J. H. DOHERTY, U.S. ARMY, JANUARY 24, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 10, 1941, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF WARRANT OFFICER JOHN S. PHILLIPS, UNITED STATES ARMY, IN THE AMOUNT OF $32.50, COVERING HIS CLAIM FOR THE DIFFERENCE BETWEEN FLYING PAY RECEIVED AT THE RATE OF $60 PER MONTH FROM OCTOBER 1 TO 31, 1941, FOR FLIGHTS PERFORMED AS AN OBSERVER, AND FLYING PAY AT THE RATE OF $92.50 PER MONTH, BEING 50 PERCENTUM OF HIS PAY FOR THE SAME PERIOD.

PARAGRAPH 63, SPECIAL ORDERS NO. 240, WAR DEPARTMENT, DATED OCTOBER 10, 1940, ANNOUNCED THE APPOINTMENT OF MASTER SERGEANT JOHN S. PHILLIPS, 3D WEATHER SQUADRON, AIR CORPS, ON DETACHED DUTY AT KELLY FIELD, TEX., AS A WARRANT OFFICER IN THE REGULAR ARMY, AND ASSIGNED HIM TO DUTY WITH THE AIR CORPS AT KELLY FIELD, TEX. PARAGRAPH 2, PERSONAL ORDERS NO. 25, OFFICE OF THE CHIEF OF THE AIR CORPS, DATED JANUARY 30, 1941, IS AS FOLLOWS:

PURSUANT TO AUTHORITY CONTAINED IN PARAGRAPH 2, ARMY REGULATIONS 35 1480, WARRANT OFFICER JOHN S. PHILLIPS, UNITED STATES ARMY, IS PLACED ON DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS, EFFECTIVE THIS DATE.

STANDARD FORM NO. 1051, FLIGHT CERTIFICATE AND SCHEDULE ATTACHED TO THE VOUCHER, SHOWS THAT DURING OCTOBER 1941 CLAIMANT PERFORMED THREE FLIGHTS, AGGREGATING A PERIOD OF 10 HOURS IN THE AIR. THE CLAIMANT STATED ON THIS CERTIFICATE THAT " I DO NOT HOLD AN AERONAUTICAL RATING. I FLY AS AN OBSERVER ONLY.'

SECTION 13A OF THE NATIONAL DEFENSE ACT, AS AMENDED JULY 2, 1926, 44 STAT. 780, 10 U.S.C. 300, PROVIDES:

* * * 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 BE, PROMULGATED BY THE PRESIDENT: * * *

THE TERM "OFFICERS AND ENLISTED MEN," AS USED IN THIS ACT, WAS HELD IN THE BRADSHAW CASE, 62 CT.CLS. 638, TO INCLUDE A WARRANT OFFICER DETAILED TO DUTY WITH THE AIR CORPS. COMPARE 27 COMP. DEC. 883. THE FLYING PAY PRESCRIBED FOR THE ARMY BY SECTION 20 OF THE PAY READJUSTMENT ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 782, WAS EXTENDED TO COVER "ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF ALL BRANCHES OF THE ARMY.'

SECTION 1 OF THE ACT OF AUGUST 21, 1941, PUBLIC LAW 230, 77TH CONG., 55 STAT. 651, PROVIDES HAT:

ALL WARRANT OFFICERS 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 BE, PROMULGATED BY THE PRESIDENT.

ONE OF THE PURPOSES OF THE ACT OF AUGUST 21, 1941, WAS TO CODIFY EXISTING LAWS RELATING TO WARRANT OFFICERS, AND THE CITED PARAGRAPH 2 OF SECTION 1, MERELY RESTATED THE PROVISIONS OF THE PRIOR CITED LAWS IN IDENTICAL TERMS AS THEY WERE APPLICABLE TO WARRANT OFFICERS. IT WAS NOT INTENDED TO IN ANY WAY INCREASE OR CHANGE THE RIGHTS OF WARRANT OFFICERS.

UNDER THE PROVISIONS OF THE CITED LAWS PAYMENT WAS AUTHORIZED TO ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF ALL BRANCHES OF THE ARMY OF 50 PERCENTUM OF THEIR PAY WHEN THEY MEET THE CONDITIONS OF THE STATUTE, AND THE REENACTMENT OF THE LAW WITHOUT CHANGE NECESSARILY IS SUBJECT TO THE LIMITATION CONTAINED IN THE APPROPRIATION ACT OF JUNE 30, 1941, PROVIDING FUNDS FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1942, UNDER THE HEADING " PAY OF THE ARMY," 55 STAT. 368, AS FOLLOWS:

FOR PAY OF THE ARMY OF THE UNITED STATES * * * INCLUDING PAY OF COMMISSIONED OFFICERS, $207,783,661; PAY OF WARRANT OFFICERS, $1,655,976; AVIATION INCREASE TO COMMISSIONED AND WARRANT OFFICERS, $14,188,834, 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, * * * AVIATION INCREASE TO ENLISTED MEN, $10,161,990; * * *.

THE CLAIM IS ASSERTED ON THE BASIS THAT THE LIMITATION IS NOT APPLICABLE TO WARRANT OFFICERS, BUT WAS INTENDED TO COVER ONLY COMMISSIONED OFFICERS.

TWO SEPARATE AMOUNTS ARE APPROPRIATED FOR AVIATION INCREASE OF PAY, ONE FOR "COMMISSIONED AND WARRANT OFFICERS" AND THE OTHER FOR "ENLISTED MEN.' THE LIMITATION FOLLOWS THE PROVISION MADE FOR COMMISSIONED AND WARRANT OFFICERS, AND WHILE THE LIMITATION IS MADE APPLICABLE TO NONFLYING OFFICERS, THERE APPEARS NOTHING TO SHOW AN INTENT THAT IT APPLIES ONLY TO COMMISSIONED OFFICERS. THE EXECUTIVE ORDER NO. 5865, JUNE 27, 1932, SET OUT IN PARAGRAPH 2F, ARMY REGULATIONS 35-1480, AND UNDER WHICH THE CLAIMANT WAS ORDERED TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS, APPLIES TO COMMISSIONED AND WARRANT OFFICERS ON THE SAME BASIS. WARRANT OFFICERS HAVING BEEN TREATED ON A PARITY WITH COMMISSIONED OFFICERS UNDER THE LAWS AND REGULATIONS APPLICABLE TO FLYING PAY, IN THE ABSENCE OF ANY INDICATION THAT THE CONGRESS INTENDED OTHERWISE, THE TERM "NONFLYING OFFICERS" AS USED IN THE ABOVE CITED LIMITATION MUST BE HELD TO BE APPLICABLE ALIKE TO COMMISSIONED OFFICERS AND TO WARRANT OFFICERS. THE LIMITATION HAS BEEN HELD NOT TO BE EXCLUSIVELY APPLICABLE TO OFFICERS COMMISSIONED IN THE AIR CORPS. 15 COMP. GEN. 357. AS THE CLAIMANT DID NOT HOLD AN AERONAUTICAL RATING, AND PERFORMED FLIGHTS AS AN OBSERVER (NOT SO RATED) ONLY, HE WAS A NONFLYING OFFICER, AND IS NOT ENTITLED TO AVIATION PAY IN EXCESS OF THE RATE OF $720 PER ANNUM. PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.