B-30931, FEBRUARY 1, 1943, 22 COMP. GEN. 730

B-30931, FEBRUARY 1, 1943, 22 COMP. GEN. 730

PAY - AVIATION DUTY - ARMY AVIATION MEDICAL EXAMINERS AN ARMY AVIATION MEDICAL EXAMINER REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS NOT A FLYING OFFICER OF THE ARMY WITHIN THE DEFINITION OF A FLYING OFFICER CONTAINED IN SECTION 1 OF THE ACT OF OCTOBER 4, 1940, AS ENLARGED BY THE PHRASE "COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING" APPEARING IN THE MILITARY APPROPRIATION ACT, 1943, AND, THEREFORE, IS NOT ENTITLED TO THE 50 PERCENT ADDITIONAL FLYING PAY FOR FLYING OFFICERS AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. A. A. DUNN, U.S. ARMY, FEBRUARY 1, 1943:

THERE WAS CONSIDERED YOUR LETTER OF NOVEMBER 2, 1942, AS FOLLOWS:

PURSUANT TO THE PROVISIONS OF PARAGRAPH 25, FINANCE CIRCULARS B-1, MARCH 14, 1942, THERE IS SUBMITTED HEREWITH FOR A DECISION IN ADVANCE OF PAYMENT, THE PAY AND ALLOWANCE ACCOUNT AND ALLIED PAPERS OF CAPTAIN WALTON T. CHAMPION, O-381073 ( ORC), SUBMITTED TO THE UNDERSIGNED DISBURSING OFFICER FOR PAYMENT, WHEREON IS CLAIMED INCREASED ALLOWANCES FOR THE PERIOD JULY 1, 1942, TO OCTOBER 31, 1942, INCLUSIVE.

THE UNDERSIGNED IS IN DOUBT AS TO WHETHER OR NOT SECTION 4, EXECUTIVE ORDER 9195, JULY 7, 1942, AS PUBLISHED IN BULLETIN NO. 35, WAR DEPARTMENT, JULY 16, 1942, CONTEMPLATES ADDITIONAL PAYMENT TO AVIATION MEDICAL EXAMINERS OF 50 PERCENT OF THEIR BASE PAY WHEN BY PROPER AUTHORITY REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS. THE OTHER HAND, THE MILITARY APPROPRIATION ACT OF 1943, AS PUBLISHED IN BULLETIN NO. 30, WAR DEPARTMENT, JULY 10, 1942, SECTION," FINANCE DEPARTMENT, FINANCE SERVICE, ARMY" EXCLUDES AVIATION MEDICAL EXAMINERS FROM THE CLASSIFICATION OF A FLYING OFFICER. FURTHER PROVISION BEING MADE THEREIN PROHIBITING PAYMENT IN EXCESS OF $720 PER ANNUM TO NON-FLYING OFFICERS.

PAYMENT ON THE VOUCHER SUBMITTED HEREWITH HAS NOT AND WILL NOT BE MADE BY THE UNDERSIGNED, PENDING RETURN OF SAME, PROPERLY APPROVED FOR PAYMENT.

SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, PUBLIC LAW NO. 607, 77TH CONGRESS, PROVIDES THAT:

OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT AND MEMBERS OF THE RESERVE FORCES OF SUCH SERVICES, AND THE NATIONAL GUARD 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 FLIGHTS AS DEFINED BY SUCH EXECUTIVE ORDERS AS HAVE HERETOFORE BEEN, OR MAY HEREAFTER BE, PROMULGATED BY THE PRESIDENT: * * *

SECTION 4 OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, IN DIRECTING THE EXECUTION OF THE ABOVE SECTION 18 OF THE ACT OF JUNE 16, 1942, PROVIDES IN PERTINENT PART THAT:

EACH OFFICER OF THE MEDICAL CORPS OF THE ARMY OR OF THE NAVY WHO IS DULY ASSIGNED TO DUTY WITH ANY AERONAUTIC HEADQUARTERS OR UNIT OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR ASSIGNED TO DUTY AT A STATION WHERE THERE IS AN AERONAUTIC UNIT, AND WHO HAS QUALIFIED AS A FLIGHT SURGEON OR AS AN AVIATION MEDICAL EXAMINER MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY THE COMMANDING GENERAL OF THE ARMY AIR FORCES OR BY SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR THE ARMY * *

THE PROPOSED PAYMENT IS BASED UPON THE PROPOSITION THAT INASMUCH AS CAPTAIN CHAMPION HAS BEEN ORDERED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS DURING THE PERIOD OF JULY 1, 1942, TO JUNE 30, 1943, HE IS ENTITLED, IN HIS CAPACITY AS AVIATION MEDICAL EXAMINER, TO THE 50 PERCENTUM INCREASE AS FLYING PAY PROVIDED IN SECTION 18 OF THE ACT OF JUNE 16, 1942, BY REASON OF THE PROVISION IN EXECUTIVE ORDER NO. 9195 THAT OFFICERS QUALIFIED AS FLIGHT SURGEONS OR AS AVIATION MEDICAL EXAMINERS MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS.

HOWEVER, PAYMENTS AUTHORIZED UNDER THE CITED LAW ARE NECESSARILY SUBJECT TO THE LIMITATIONS CONTAINED IN THE ACT OF JULY 2, 1942, 56 STAT. 612, PUBLIC LAW NO. 649, 77TH CONGRESS, MAKING APPROPRIATION FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1943, WHICH, UNDER THE HEADING " FINANCE SERVICE, ARMY," PROVIDES AS FOLLOWS:

* * * THAT THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL NOT 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 * * *.

SECTION 1 OF THE ACT OF OCTOBER 4, 1940, 54 STAT. 963, DEFINES A FLYING OFFICER AS FOLLOWS:

* * * THAT 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.

THE ACT OF JULY 2, 1942, SUPRA, PROVIDES FURTHER:

* * * THAT, DURING THE CONTINUANCE OF THE PRESENT WAR AND FOR SIX MONTHS AFTER THE TERMINATION THEREOF, A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING * * *.

WHILE FLIGHT SURGEONS ARE SPECIFICALLY INCLUDED WITHIN THE ABOVE DEFINITION OF FLYING OFFICERS, NO PROVISION IS MADE FOR THE INCLUSION OF MEDICAL OFFICERS QUALIFIED AS AVIATION MEDICAL EXAMINERS. WHETHER OFFICERS QUALIFIED AS AVIATION MEDICAL EXAMINERS AND ORDERED TO PARTICIPATE IN AERIAL FLIGHTS ARE TO BE CONSIDERED FLYING OFFICERS WITHIN THE STATUTORY MEANING, MUST REST UPON A DETERMINATION AS TO WHETHER THEY MAY BE CONSIDERED COMMISSIONED OFFICERS UNDERGOING FLYING TRAINING. INASMUCH AS THE QUOTED PROVISION OF THE ACT OF JULY 2, 1942, DOES NOT QUALIFY THE PHRASE "UNDERGOING FLYING TRAINING" IT IS PROPER TO REFER BRIEFLY TO THE LEGISLATIVE HISTORY OF THE ENACTMENT IN ORDER TO ASCERTAIN THE PARTICULAR RESULT WHICH WAS SOUGHT TO BE ACHIEVED BY THE LANGUAGE USED. 19 COMP. GEN. 227; 20 ID. 81; AND CASES THERE CITED. IN THE HEARINGS ON THE PROPOSED BILL, H.R. 7280, BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON PAGE 71, APPEARS THE FOLLOWING DISCUSSION OF THE PROPOSED PROVISION:

MR. SNYDER. GENERAL, LOOKING AT THE FLIGHT-PAY PROJECTS ON PAGE 12 OF THE JUSTIFICATIONS, WHICH I APPRECIATE APPLIES SOLELY TO OFFICERS, I SHOULD LIKE YOU TO STATE IF YOU PAY FLIGHT PAY TO STUDENT AVIATORS.

GENERAL LOUGHRY. YES, SIR.

MR. SNYDER. I ASK THAT BECAUSE THE COMPTROLLER GENERAL RULED ON LAST DECEMBER 16 THAT STUDENT AVIATORS OF THE MARINE CORPS WERE ENTITLED TO FLIGHT PAY, AND THAT RULING ALSO APPLIED TO THE NAVY. IN AN EARLIER DECISION ARMY STUDENT AVIATORS WERE BARRED BY THE LEGAL DEFINITION, APPLYING TO THE ARMY ALONE, OF A FLYING OFFICER. WE ENDEAVOR TO KEEP THE SERVICES ON A UNIFORM BASIS AS TO PAY. WE HAVE A HARD TIME DOING IT AT TIMES, AS WE ALL KNOW. HOW DOES THE ARMY FEEL ABOUT THIS MATTER?

GENERAL LOUGHRY. I WOULD LIKE TO MAKE A BRIEF STATEMENT, AND COLONEL BRADLEY IS HERE FROM THE AIR CORPS TO MAKE A FURTHER STATEMENT. IT IS MY UNDERSTANDING THAT SO FAR THIS SITUATION IS NOT CLEARED UP, AND THAT THE DECISION OF THE COMPTROLLER GENERAL WAS SIMPLY IN ACCORDANCE WITH EXISTING LAW. THE LAW, AS IT APPLIES TO THE NAVY FLYING OFFICERS, DOES INCLUDE STUDENT AVIATORS; WHEREAS THE LAW PERTAINING TO THE ARMY PROVIDES THAT THE FLYING OFFICER SHALL CONSIST OF RATED PILOTS, OBSERVERS, AND MEMBERS OF COMBAT CREWS. THE DIFFERENCE IS THE RESULT OF A DIFFERENCE IN THE EXISTING LAW. IS THAT CORRECT, COLONEL BRADLEY?

COLONEL BRADLEY. OFFICER STUDENT AVIATORS RECEIVE ONLY $60 PER MONTH FOR FLIGHT PAY DURING THE PERIOD THEY ARE UNDERGOING TRAINING. THEY DO NOT RECEIVE 50 PERCENT FLIGHT PAY UNTIL THEY BECOME RATED PILOTS OR OBSERVERS.

MR. SNYDER. GENERAL, I SUGGEST, IF ANY DISCRIMINATION EXISTS, THAT YOU PREPARE SOME LANGUAGE DESIGNED TO REMOVE IT, AND SUBMIT IT TO THE CLERK OF THE COMMITTEE BEFORE WE MARK UP THE BILL.

IN THE REPORT OF THE COMMITTEE ON APPROPRIATIONS TO THE HOUSE OF REPRESENTATIVES, REPORT NO. 2266, CONCERNING THE PROPOSED BILL, ON PAGE 11, APPEARS THE FOLLOWING:

THE SECOND PHRASE OF THE PROVISO, APPLYING TO COMMISSIONED OFFICERS AND WARRANT OFFICERS UNDERGOING FLYING TRAINING, IS INTENDED TO EQUALIZE FLYING PAY OF ARMY AND NAVY PERSONNEL UNDERGOING FLYING INSTRUCTION.

THE PROVISION, AS PRESENTED BY THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES, WAS APPROVED BY THE HOUSE OF REPRESENTATIVES AND THE SENATE AND ENACTED AS A PART OF THE ACT OF JULY 2, 1942, IN THE ABOVE- QUOTED FORM.

IT IS APPARENT THAT THE INCLUSION WITHIN THE ACT OF JULY 2, 1942, OF THE PHRASE "COMMISSIONED OFFICERS AND WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING" WAS DESIGNED TO PROVIDE THE 50 PERCENT ADDITIONAL FLYING PAY TO THOSE OFFICERS OF THE ARMY UNDERGOING TRAINING AS STUDENT AVIATORS ONLY, THE PURPOSE BEING TO PLACE SUCH OFFICERS WITHIN THE SAME PAY STATUS AS STUDENT AVIATORS OF THE NAVY AND MARINE CORPS. IT MUST BE HELD, THEREFORE, THAT CAPTAIN CHAMPION, IN HIS CAPACITY AS AVIATION MEDICAL EXAMINER UNDER ORDERS TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, IS NOT A FLYING OFFICER WITHIN THE CONTEMPLATION OF THAT PROVISION. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.