B-37986, DECEMBER 20, 1943, 23 COMP. GEN. 449

B-37986, DECEMBER 20, 1943, 23 COMP. GEN. 449

PAY - AVIATION DUTY - SCOPE OF RELIEF FROM FLIGHT REQUIREMENTS DURING PERIOD OF INCAPACITY FOR FLYING UNDER SECTION 10 OF EXECUTIVE ORDER NO. 9195, SPECIFYING THE CONDITIONS UNDER WHICH FLIGHT DEFICIENCIES IN ONE PERIOD MAY BE MADE UP IN A SUCCEEDING PERIOD AND THE CONDITIONS ENTITLING PERSONNEL TO AVIATION PAY WHILE INCAPACITATED FOR FLYING, THE 3-MONTH PERIOD DURING WHICH FLIGHTS ARE NOT REQUIRED OF AN ARMY OFFICER WHO WAS INJURED IN AN AVIATION ACCIDENT BEFORE MEETING THE FLIGHT REQUIREMENTS FOR THE MONTH IN WHICH INJURED INCLUDES THE MONTH OF INJURY AND SUBSEQUENT MONTHS, BUT THE OFFICER IS NOT RELIEVED FROM THE PERFORMANCE OF FLIGHTS NECESSARY TO QUALIFY HIM FOR AVIATION PAY FOR THE MONTH PRECEDING THE MONTH OF INJURY.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. C. D. ELLING, U.S. ARMY, DECEMBER 20, 1943:

THERE HAS BEEN RECEIVED BY ENDORSEMENT DATED OCTOBER 25, 1943, YOUR LETTER OF SEPTEMBER 10, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF FIRST LIEUTENANT KENRICK R. BRAGG, JR., AC, AUS, COVERING AVIATION PAY FOR THE PERIOD APRIL 1, TO JULY 31, 1943.

THE CERTIFICATE OF MAJOR BORIS M. ZUBKO, AC, U.S. ARMY, CONTAINED IN THE FILE STATES:

I CERTIFY THAT ST LT. KENDRICK R. BRAGG, DID NOT MEET FLIGHT REQUIREMENTS IN THE MONTH OF APRIL 1943 BECAUSE HE WAS ENROUTE FROM COMBAT ZONE, ALSO HE WAS IN A TRAVEL STATUS UNTIL MAY 23, 1943 ALSO HE WAS SUSPENDED FROM FLYING, DUE TO INJURY RECEIVED IN AIRCRAFT ACCIDENT, FROM MAY 24, 1943, TO JULY 2, 1943. ACCIDENT OCCURRED IN LINE OF DUTY AND NOT DUE TO HIS OWN MISCONDUCT.

IT IS ASSUMED THAT THE "AIRCRAFT ACCIDENT" REFERRED TO WAS AN "AVIATION ACCIDENT" AS DEFINED IN SECTION 1 (H) OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, AND THAT THE OFFICER WAS NOT ,SUSPENDED FROM FLYING" CONTRARY TO THE PROVISIONS OF SECTION 12 OF THE SAID EXECUTIVE ORDER. WHAT IS SAID HEREINAFTER IS BASED UPON SUCH ASSUMPTION OF THE FACTS.

IT APPEARS THAT ON MAY 24, 1943, LIEUTENANT BRAGG WAS INJURED IN AN AVIATION ACCIDENT AS A RESULT OF WHICH HE WAS UNABLE TO PERFORM ANY FLIGHTS DURING THE PERIOD MAY 24, 1943, TO JULY 2, 1943. AT THE TIME OF THE ACCIDENT HE HAD NOT MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF APRIL OR MAY, 1943. IT IS STATED THAT THE OFFICER MET FLIGHT REQUIREMENTS FOR THE MONTH OF JULY.

SECTION 10 OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, PROVIDES IN PART, AS FOLLOWS:

FOR PERSONNEL OF THE ARMY * * * WHO ARE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, THE FOLLOWING REQUIREMENTS ARE PRESCRIBED: PROVIDED, THAT 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:

(A) DURING ONE CALENDAR MONTH: 10 OR MORE FLIGHTS TOTALING AT LEAST THREE HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST FOUR HOURS.

(B) DURING TWO CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (A) ABOVE HAVE NOT BEEN MET: 20 OR MORE FLIGHTS TOTALING AT LEAST SIX HOURS, OR IN LIEU THEREOF, TO BE IN THE AIR A TOTAL OF AT LEAST EIGHT HOURS.

(C) DURING THREE CONSECUTIVE CALENDAR MONTHS, WHEN THE REQUIREMENTS OF SUBPARAGRAPH (B) ABOVE HAVE NOT BEEN MET: 30 OR MORE FLIGHTS TOTALING AT LEAST NINE HOURS, OR IN LIEU THEREOF TO BE IN THE AIR A TOTAL OF AT LEAST TWELVE HOURS.

UNDER THE ESTABLISHED RULE, IN CASES WHERE THE OFFICER HAS ALREADY QUALIFIED FOR AVIATION PAY FOR THE MONTH IN WHICH HE WAS INJURED, THE 3 MONTH PERIOD DURING WHICH NO FLIGHTS ARE REQUIRED DOES NOT BEGIN UNTIL THE FIRST OF THE FOLLOWING MONTH. DENNETT V. UNITED STATES, 78 C.1CLS. 258; 16 COMP. GEN. 134; DECISIONS A-55383, MAY 14, 1934; A 79137, AUGUST 6, 1936. WHERE THE OFFICER HAS NOT QUALIFIED FOR AVIATION PAY FOR THE MONTH IN WHICH HE WAS INJURED, THE SAID 3-MONTH PERIOD INCLUDES THE MONTH IN WHICH THE INJURY WAS INCURRED. ACCORDINGLY, UNDER THE QUOTED PROVISIONS OF THE EXECUTIVE ORDER, AS THUS APPLIED, LIEUTENANT BRAGG WOULD BE ENTITLED TO AVIATION PAY FOR THE MONTHS OF MAY AND JUNE, IRRESPECTIVE OF THE FACT THAT HE HAD NOT MADE THE NUMBER OF FLIGHTS OTHERWISE REQUIRED TO QUALIFY FOR AVIATION PAY, AND, OF COURSE, HAVING MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF JULY, 1943, HE IS ENTITLED TO AVIATION PAY FOR THAT MONTH, OTHER CONDITIONS BEING MET.

WITH RESPECT TO THE MONTH OF APRIL, 1943, YOU ARE ADVISED THAT WHILE THE EXECUTIVE ORDER RELIEVED THE OFFICER FROM MAKING FLIGHTS DURING THE MONTH OF MAY, 1943, SUCH RELIEF APPLIES TO FLIGHTS NECESSARY TO ENTITLE HIM TO AVIATION PAY FOR THAT MONTH AND FOR A LIMITED TIME THEREAFTER BUT DOES NOT OPERATE TO RELIEVE THE OFFICER FROM THE PERFORMANCE OF FLIGHTS WHICH WERE NECESSARY TO QUALIFY HIM FOR AVIATION PAY FOR A PERIOD PRIOR TO THE MONTH IN WHICH THE INJURY WAS INCURRED. SEE DECISION OF OCTOBER 10, 1933, A- 46627.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED, TO THE EXTENT THAT THE OFFICER IS OTHERWISE ENTITLED THERETO, ONLY FOR THE PERIOD MAY 1, TO JULY 31, 1943.