B-36971, OCTOBER 29, 1943, 23 COMP. GEN. 316

B-36971, OCTOBER 29, 1943, 23 COMP. GEN. 316

PAY - AVIATION DUTY - DURING PERIOD OF INCAPACITY RESULTING FROM EXHAUSTION, ETC., DUE TO PROLONGED COMBAT FLYING A MARINE CORPS FLYING OFFICER WHO, IN THE OPINION OF APPROPRIATE MEDICAL AUTHORITY, BECAME TEMPORARILY INCAPACITATED FOR FLYING DUTY BY REASON OF EXHAUSTION FROM OVEREXERTION AS A RESULT OF PROLONGED COMBAT FLYING MAY BE REGARDED AS HAVING INCURRED AN "INJURY" AS A RESULT OF AN "AVIATION ACCIDENT" WITHIN THE MEANING OF EXECUTIVE ORDER NO. 9195, PERMITTING THE TEMPORARY CONTINUANCE OF FLYING PAY, AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, TO OFFICERS AND ENLISTED MEN WHO BECOME INCAPACITATED FOR FLYING BY REASON OF AN INJURY SUSTAINED AS A RESULT OF AN AVIATION ACCIDENT.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. JAMES L. DENHAM, U.S. MARINE CORPS, OCTOBER 29, 943:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF SEPTEMBER 10, 1943, YOUR LETTER OF AUGUST 25, 1943, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON THE VOUCHER SUBMITTED THEREWITH IN FAVOR OF LEO R. SMITH, MAJOR, U.S.M.C., COVERING FLYING PAY FOR THE PERIOD OCTOBER 1, 1942, TO FEBRUARY 28, 1943. YOU HAVE FORWARDED A FLIGHT CERTIFICATE FOR MAJOR SMITH COVERING THE PERIOD JANUARY 1 TO MARCH 31, 1943, AND STATE THAT FLIGHT REQUIREMENTS WERE MET FOR SEPTEMBER, 1942.

IT APPEARS THE OFFICER WAS INCAPACITATED FOR FLYING FOR THE PERIOD COMMENCING OCTOBER 1, 1942, AND THE QUESTION PRESENTED IS WHETHER THE FAILURE TO COMPLY WITH FLIGHT REQUIREMENTS FOR THE THREE MONTHS' PERIOD COMMENCING OCTOBER 1, 1942, MAY BE EXCUSED AS "AN AVIATION ACCIDENT" UNDER PARAGRAPH 10 OF EXECUTIVE ORDER 9195, DATED JULY 7, 1942, WHICH PROVIDES IN PART:

* * * ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY ORDERS OF COMPETENT AUTHORITY AND WHO AS A RESULT OF SUCH ORDERS HAS PARTICIPATED REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT:

PARAGRAPH 1 (H) OF THE EXECUTIVE ORDER DEFINES THE TERM "AVIATION ACCIDENT" , AS USED IN THE REGULATIONS, AS FOLLOWS:

THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT OR AS THE RESULT OF JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF, OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

FORWARDED WITH YOUR REQUEST FOR DECISION IS AN INDORSEMENT FROM THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY TO THE PAYMASTER, HEADQUARTERS, MARINE CORPS, DATED SEPTEMBER 7, 1943, AS FOLLOWS:

1. REPORTS OF BOARDS OF MEDICAL SURVEY ON FILE IN THE BUREAU OF MEDICINE AND SURGERY SHOW THAT MAJOR SMITH WAS ADMITTED TO THE SICK LIST ON SEPTEMBER 18, 1942 WHILE ATTACHED TO MARINE AIRCRAFT GROUP TWENTY-THREE, F.M.A.W., F.M.F., GUADALCANAL, SOLOMON ISLANDS, BECAUSE OF PHYSICAL AND MENTAL FATIGUE FROM PROLONGED COMBAT FLYING.

2. MAJOR SMITH WAS RETURNED TO THE UNITED STATES AND WAS ADMITTED TO THE U.S. NAVAL HOSPITAL AT SAN DIEGO, CALIFORNIA ON OCTOBER 9, 1942 WITH THE DIAGNOSIS " EXHAUSTION FROM OVER-EXERTION.' THIS DISABILITY WAS CONSIDERED TO BE INCIDENT TO ONE AND ONE-HALF YEARS CONSTANT FLYING DUTY, TEN MONTHS OF WHICH WAS UNDER COMBAT CONDITIONS IN HAWAII, MIDWAY, AND THE SOUTHWEST PACIFIC. TREATMENT PRESCRIBED WAS PROTRACTED REST AWAY FROM MILITARY ACTIVITIES FOR A PERIOD OF 3 MONTHS. UPON EXPIRATION OF THE 3 MONTHS' SICK LEAVE ON FEBRUARY 24, 1943, MAJOR SMITH WAS READMITTED TO THE NAVAL HOSPITAL AT SAN DIEGO CALIFORNIA. HE HAD NO COMPLAINTS, WAS FEELING WELL AND HAD GAINED 15 POUNDS IN WEIGHT. THE GENERAL PHYSICAL EXAMINATION WAS NEGATIVE AND THE ROUTINE LABORATORY TESTS WERE NORMAL. ON MARCH 19, 1943, A BOARD OF MEDICAL SURVEY CONVENED IN HIS CASE AND EXPRESSED THE OPINION THAT HE WAS PHYSICALLY QUALIFIED TO PERFORM ALL THE DUTIES OF HIS RANK AT SEA AND IN THE FIELD.

3. THE DIAGNOSIS " EXHAUSTION FROM OVER-EXERTION" IS LISTED IN THE DIAGNOSTIC NOMENCLATURE FOR THE MEDICAL DEPARTMENT OF THE U.S. NAVY UNDER CLASS XXV--- INJURIES. (SEE CHAPTER 15 AND APPENDIX A, MANUAL OF THE MEDICAL DEPARTMENT.) " HEAT EXHAUSTION" AND " EXHAUSTION FROM OVER- EXPOSURE" HAVE BEEN HELD BY THE COMPTROLLER GENERAL AND BY THE WORKMEN'S COMPENSATION COMMISSION TO BE INJURIES. FUNCTIONALLY, THESE CONDITIONS ARE NOT BASICALLY DIFFERENT FROM THE DISABILITY," EXHAUSTION FROM OVER- EXERTION.'

4. IT IS THE OPINION OF THIS BUREAU THAT THE DISABILITY, EXHAUSTION FROM OVER-EXERTION, WHICH INCAPACITATED MAJOR SMITH FOR FLYING, MAY PROPERLY BE CLASSIFIED AS AN INJURY AND THAT IT RESULTED FROM PROLONGED PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

THE PROVISION CONTAINED IN PARAGRAPH 10 OF THE EXECUTIVE ORDER WAS TO EXCUSE A FLYING OFFICER FROM THE PERFORMANCE OF MINIMUM FLIGHT REQUIREMENTS WHO BECOMES INCAPACITATED FOR FLYING BY REASON OF AN INJURY RESULTING FROM AN "AVIATION ACCIDENT" AND A DEFINITION OF AN "AVIATION ACCIDENT" WAS NECESSARY IN ORDER TO GIVE EFFECT THERETO. OBVIOUSLY, THERE WAS NO "AVIATION ACCIDENT" IN THE PRESENT CASE WITHIN THE COMMON ACCEPTATION OF THAT TERM, AND THE QUESTION PRESENTED IS WHETHER THERE WAS AN AVIATION ACCIDENT WITHIN CONTEMPLATION OF THE DEFINITION OF THAT PHRASE AS CONTAINED IN PARAGRAPH 1 (H) OF EXECUTIVE ORDER 9195, SUPRA. THE CORRESPONDING PROVISION OF THE EXECUTIVE ORDER IN EFFECT IMMEDIATELY PRIOR TO PROMULGATION OF EXECUTIVE ORDER 9195 CONTAINED THE PRECISE LANGUAGE OF THE EXECUTIVE ORDER HERE UNDER CONSIDERATION EXCEPT THAT THE PERIOD ENDING THE PARAGRAPH IN THE PRECEDING ORDER WAS CHANGED TO A COMMA AND THE CLAUSE ADDED THERETO AS FOLLOWS: OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

THE SYNTAX OR CONSTRUCTION OF PARAGRAPH 1 (H) OF EXECUTIVE ORDER 9195 MAKES LESS CLEAR THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE ADDITION OF THE FINAL CLAUSE, IT BEING DIFFICULT GRAMMATICALLY TO PARSE THE WHOLE SENTENCE SO AS TO CONNECT OR ASSOCIATE THE ADDED LANGUAGE TO ITS ANTECEDENT. IT SEEMS CLEAR THAT, ORIGINALLY, THE INCAPACITY CONTEMPLATED AN "ACCIDENT" IN WHICH THE OFFICER IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT; AN ACCIDENT AS THE RESULT OF JUMPING FROM OR BEING THROWN FROM OR BEING STRUCK BY AN AIRCRAFT OR ANY PART OR AUXILIARY THEREOF. BY THE ADDITION OF THE LAST CLAUSE TO THE PRESENT PARAGRAPH 1 (H) THE AVIATION ACCIDENT SEEMS TO INCLUDE, IN ADDITION TO THE PREVIOUS CAUSES, AN ACCIDENT IN WHICH AN OFFICER IS INJURED--- "IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.' THAT THE LANGUAGE IS AMBIGUOUS AND THAT THE LITERAL PURPOSE AND MEANING INTENDED TO BE CONVEYED IS OBSCURE APPEARS TO BE OBVIOUS. AND THIS OFFICE HAS NO DEFINITE KNOWLEDGE AS TO THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY SUCH LANGUAGE. HOWEVER, IT IS NOTED THAT EXECUTIVE ORDER 9195 FOLLOWED BY LESS THAN TWO MONTHS THE DECISION OF THIS OFFICE DATED MAY 14, 1942, TO THE SECRETARY OF THE NAVY, B-21847, IN WHICH IT WAS HELD, IN EFFECT, THAT AN INJURY AS DEFINED IN THE THEN CURRENT EXECUTIVE ORDER DID NOT INCLUDE ANY AND ALL INCAPACITIES THAT MIGHT POSSIBLY FLOW OR RESULT FROM THE CONTINUED PURSUIT OF THE OCCUPATION OR DUTY OF A FLYING OFFICER--- THAT IS, THAT MIGHT RESULT FROM PARTICIPATING IN REGULAR AND FREQUENT AERIAL FLIGHTS. IN OTHER WORDS, IT WAS HELD THERE WAS NO APPARENT PURPOSE UNDER PRIOR EXECUTIVE ORDERS TO GRANT ADDITIONAL FLYING PAY TO AN OFFICER BECAUSE INCAPACITATED, BY CUMULATIVE PURSUIT OF THE DUTY NORMALLY EXPECTED OF HIM, TO THE EXTENT THAT HE COULD NOT MEET THE MINIMUM FLIGHT REQUIREMENTS. HOWEVER, THE NEW LANGUAGE CONTAINED IN THE PRESENT EXECUTIVE ORDER OBVIOUSLY WAS INTENDED TO INCLUDE WITHIN THE TERM "AVIATION ACCIDENT" AN EVENT WHERE INJURY WAS INCURRED ADDITIONAL TO THOSE SPECIFIED IN THE PREVIOUS DEFINITION.

THE OPINION OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY THAT THE DISABILITY " EXHAUSTION FROM OVER-EXERTION" WHICH INCAPACITATED MAJOR SMITH FOR FLYING "MAY PROPERLY BE CLASSIFIED AS AN INJURY AND THAT IT RESULTED FROM PROLONGED PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS" IS REGARDED AS SUFFICIENT ATTESTATION BY "APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES" INVOLVED ,THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS," AND, THEREFORE, IS AN AVIATION ACCIDENT WITHIN CONTEMPLATION OF PARAGRAPH 1 (H), SUPRA.

ACCORDINGLY, YOU ARE ADVISED THAT TO THE EXTENT HE OTHERWISE MAY BE ENTITLED TO FLIGHT PAY OVER THE PERIOD IN QUESTION, MAJOR SMITH MAY BE CREDITED WITH FLIGHT PAY ON THE BASIS THAT HE WAS INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT.