B-40691, JUNE 13, 1944, 23 COMP. GEN. 948

B-40691, JUNE 13, 1944, 23 COMP. GEN. 948

PAY - AVIATION DUTY - FLIGHT REQUIREMENTS AS TO CAPTURED PERSONNEL SUBSEQUENTLY ESCAPING; ETC. THE THREE CALENDAR MONTHS' PERIOD PRESCRIBED BY PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, IN WHICH FLIGHT REQUIREMENTS MAY BE MADE UP, IN ORDER TO BE ENTITLED TO AVIATION PAY, COMMENCES IN THE MONTH IN WHICH THE DEFICIENCY OR FAILURE TO QUALIFY ARISES. WHEN THERE IS A FAILURE DURING ONE CALENDAR MONTH TO MEET THE FLIGHT REQUIREMENTS SET FORTH IN PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, IN ORDER TO BE ENTITLED TO AVIATION PAY, THE PROVISIONS OF SUBPARAGRAPHS (B) AND (C) THEREOF WITH RESPECT TO MAKING UP FLIGHT DEFICIENCIES DO NOT EXTEND BEYOND THE TERMINATION OF THE TWO CALENDAR MONTHS NEXT SUCCEEDING THE MONTH IN WHICH THE DEFICIENCY OCCURS. WHERE FOR FOUR OR MORE CONSECUTIVE MONTHS THERE IS A FAILURE TO MEET THE FLIGHT REQUIREMENTS SET FORTH IN PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195 IN ORDER TO BE ENTITLED TO AVIATION PAY, A NEW THREE CALENDAR MONTHS' PERIOD WITHIN WHICH FLIGHT REQUIREMENTS MAY BE MADE UP UNDER SAID EXECUTIVE ORDER, DOES NOT COMMENCE WITH THE FOURTH MONTH AND THE FLIGHT REQUIREMENTS FOR THAT MONTH MAY NOT BE MADE UP IN A SECOND OR THIRD MONTH THEREAFTER; THE NEW THREE-MONTH PERIOD BEGINS WITH THE MONTH IN WHICH THE MINIMUM FLIGHT REQUIREMENTS ARE MET. THE PROVISIONS OF SECTION 2 OF THE MISSING PERSONS STATUTE OF MARCH 7, 1942, PERTAINING TO THE CONTINUANCE OF THE PAY AND ALLOWANCES OF PERSONS MISSING, CAPTURED BY THE ENEMY, ETC., HAVE REFERENCE TO PAY AND ALLOWANCES "WHILE SO ABSENT," AND HAVE NO APPLICATION TO THE RIGHTS OF SUCH PERSONS AFTER TERMINATION OF THE MISSING STATUS, SO THAT THE QUESTION OF WHETHER AN ARMY FLYING OFFICER WHO ESCAPED AFTER HAVING BEEN CAPTURED BY THE ENEMY IS ENTITLED TO AVIATION PAY FOR A PERIOD AFTER HIS ESCAPE IS FOR DETERMINATION SOLELY UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9195, WITH RESPECT TO FLIGHT REQUIREMENTS, ETC. UNDER THE RULE THAT THE THREE CALENDAR MONTHS' PERIOD PRESCRIBED BY EXECUTIVE ORDER NO. 9195 IN WHICH FLIGHT REQUIREMENTS MAY BE MADE UP, IN ORDER TO BE ENTITLED TO AVIATION PAY FOR THAT PERIOD, COMMENCES IN THE MONTH IN WHICH THE DEFICIENCY OR FAILURE TO QUALIFY ARISES, WHERE AN ARMY FLYING OFFICER WAS CAPTURED BY THE ENEMY, AFTER HAVING MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF CAPTURE, AND SUBSEQUENTLY ESCAPED, SUCH THREE-MONTH PERIOD COMMENCES WITH THE FIRST MONTH AFTER CAPTURE IN WHICH NO FLIGHTS WERE PERFORMED--- INSOFAR AS CONCERNS HIS RIGHTS AFTER TERMINATION OF HIS CAPTURED STATUS, WHEN THE PAY-CONTINUANCE PROVISIONS OF THE ACT OF MARCH 7, 1942, CEASE TO APPLY. WHERE AN ARMY FLYING OFFICER WHO WAS CAPTURED BY THE ENEMY AND SUBSEQUENTLY ESCAPED PERFORMED NO FLIGHTS AFTER HIS CAPTURE UNTIL THE FIFTH MONTH FOLLOWING THAT OF HIS CAPTURE AND THIRD MONTH FOLLOWING THAT IN WHICH HE ESCAPED, HE HAS NOT MET THE REQUIREMENTS OF PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195 WITH RESPECT TO MAKING UP FLIGHT DEFICIENCIES WITHIN A THREE CALENDAR MONTHS' PERIOD SO AS TO BE ENTITLED TO AVIATION PAY FOR ANY OF THE PERIOD BETWEEN THE DATE OF HIS ESCAPE AND THE BEGINNING OF THE MONTH IN WHICH HE PERFORMED THE NECESSARY FLIGHTS.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. CARL A. NELSON, U.S. ARMY, JUNE 13, 1944:

BY ENDORSEMENT DATED MARCH 4, 1944, THERE WAS RECEIVED YOUR LETTER REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MAJOR KELLY W. MITCHIM, AIR CORPS RESERVE, COVERING AVIATION PAY FOR THE PERIOD, OCTOBER 21 TO DECEMBER 31, 1943.

IN A CERTIFICATE EXECUTED JANUARY 27, 1944, AT RANDOLPH FIELD, TEXAS, THE OFFICER STATES:

WHILE OPERATING IN AN AUTHORIZED COMBAT MISSION OVER ITALY ON 26 AUGUST, 1943, I WAS SHOT DOWN BY ENEMY AIRCRAFT AND CAPTURED BY BELLIGERENT ITALIAN ARMED FORCES AND PLACED IN AN ITALIAN PRISONER INTERNMENT CAMP ON THE SAME DATE. ( UPON SURRENDER OF ITALY, THE INTERNMENT CAMP WAS TAKEN OVER BY THE GERMAN FORCES).

AFTER ESCAPING FROM THE CAMP ON 20 OCTOBER, I REPORTED TO A UNIT OF THE ROYAL CANADIAN FORCES AND WAS EVACUATED BACK TO AMERICAN FORCES,AND ON OCTOBER 24, I WAS ADMITTED TO A BASE HOSPITAL AT TUNIS, NORTH AFRICA. AFTER BEING RELEASED FROM THE HOSPITAL ON 29 OCTOBER, 1943, I REMAINED IN TUNIS UNTIL COMPETENT SECRET ORDERS TRANSFERRED ME TO ALGIERS, NORTH AFRICA, WHERE I REMAINED UNTIL FURTHER ORDERS SENT ME TO THE PORT OF DEBARKATION, MIAMI, FLORIDA, ARRIVING AT THE LATTER STATION ON 9 NOVEMBER 1943. FROM THAT STATION, I WAS TRANSFERRED TO HEADQUARTERS, AAF REDISTRIBUTION STATION NO. 2, MIAMI BEACH, FLORIDA, WITH 25 DAYS DELAY EN ROUTE, AND THEN SENT TO AAF FLYING TRAINING COMMAND, FT. WORTH, TEXAS, WITH FURTHER ORDERS TO REPORT TO AAF CENTRAL INSTRUCTORS SCHOOL, RANDOLPH FIELD, TEXAS, AFTER 5 DAYS DELAY EN ROUTE.

THE ENCLOSURES SUBMITTED WITH THE VOUCHER FURTHER INDICATE THAT BY PERSONNEL ORDERS NO. 298 DATED DECEMBER 20, 1940, THE OFFICER WAS ASSIGNED TO DUTY REQUIRING PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS FOR AN INDEFINITE PERIOD. IT IS STATED THAT THE OFFICER WAS A PRISONER OF WAR FROM AUGUST 26 TO OCTOBER 20, 1943, AND HAS BEEN PAID AVIATION PAY FOR THAT PERIOD ALTHOUGH HE PERFORMED NO FLIGHTS, AND THAT THE FIRST FLIGHTS IN WHICH HE PARTICIPATED AFTER HIS ESCAPE WERE PERFORMED DURING THE PERIOD JANUARY 17 TO 28, 1944, IN WHICH PERIOD HE WAS CREDITED WITH 20 FLIGHTS TOTALING 13 HOURS AND 10 MINUTES. YOUR DOUBT IN THE MATTER IS WHETHER AERIAL FLIGHTS PERFORMED BY THE OFFICER IN JANUARY, 1944, MAY BE REGARDED AS HAVING BEEN MADE IN ACCORDANCE WITH SECTION 10 OF EXECUTIVE ORDER NO. 9195, SO AS TO ENTITLE HIM TO AVIATION PAY FOR THE PERIOD HERE INVOLVED.

THE FIRST PARAGRAPH OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 368, EFFECTIVE AS OF JUNE 1, 1942, PROVIDES:

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: * * * REGULATIONS IN EXECUTION OF THE PROVISIONS OF THIS PARAGRAPH SHALL BE MADE BY THE PRESIDENT AND SHALL, WHENEVER PRACTICABLE IN HIS JUDGMENT, BE UNIFORM FOR ALL OF THE SERVICES CONCERNED.

PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, ISSUED JULY 7, 1942 EFFECTIVE AS OF JUNE 1, 1942, PROVIDES IN PART:

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.

IT APPEARS THAT FOR THE PERIOD MAJOR MITCHIM WAS A PRISONER OF WAR HE WAS CREDITED WITH AND PAID AVIATION PAY--- PRESUMABLY, PURSUANT TO SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144, WHICH PROVIDES, IN PART AS FOLLOWS:

ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER * * *. SEE 22 COMP. GEN. 192.

THE QUOTED PROVISION OF THE ACT OF MARCH 7, 1942, SUPRA, HAS REFERENCE TO THE CONTINUANCE OF THE PAY AND ALLOWANCES OF PERSONS MISSING IN ACTION, CAPTURED BY AN ENEMY, ETC., "WHILE SO ABSENT," AND HAS NO APPLICATION TO THEIR RIGHTS AFTER TERMINATION OF SUCH STATUS. HENCE, THE QUESTION WHETHER MAJOR MITCHIM IS ENTITLED TO AVIATION PAY FOR THE PERIOD COVERED BY THE VOUCHER IS FOR DETERMINATION SOLELY ON THE BASIS OF THE PROVISIONS OF SECTION 10 OF THE EXECUTIVE ORDER.

THE ESTABLISHED RULE IS THAT THE THREE CALENDAR MONTHS' PERIOD IN WHICH FLIGHT REQUIREMENTS MAY BE MADE UP COMMENCES IN THE MONTH IN WHICH THE DEFICIENCY OR FAILURE TO QUALIFY ARISES, IN THIS CASE SEPTEMBER 1943--- IT BEING ASSUMED THAT THE OFFICER MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF AUGUST 1943. 4 COMP. GEN. 975. ALSO, WHEN THERE IS A FAILURE DURING ONE CALENDAR MONTH TO MEET THE FLIGHT REQUIREMENTS SET FORTH IN SECTION 10 OF THE EXECUTIVE ORDER, THE SAID SECTION DOES NOT PROVIDE OR CONTEMPLATE THAT THE PROVISIONS OF SUBPARAGRAPHS (B) AND (C) THEREOF, WITH RESPECT TO MAKING UP FLIGHT DEFICIENCIES, SHALL EXTEND BEYOND THE TERMINATION OF THE TWO CALENDAR MONTHS NEXT SUCCEEDING THE MONTH IN WHICH SUCH DEFICIENCY OCCURS. 8 COMP. GEN. 384. AND WHERE, AS IN THE INSTANT CASE, THERE IS A FAILURE TO MEET THE FLIGHT REQUIREMENTS FOR FOUR OR MORE CONSECUTIVE CALENDAR MONTHS, THE OFFICER IS NOT ENTITLED TO AVIATION PAY FOR THE MONTHS DURING WHICH THE FLIGHT REQUIREMENTS WERE NOT MET. IN SUCH CASES, A NEW PERIOD DOES NOT COMMENCE WITH THE FOURTH MONTH AND THE FLIGHT REQUIREMENTS FOR THAT MONTH MAY NOT BE MADE UP IN THE SECOND OR THIRD MONTH THEREAFTER. THE NEW THREE MONTHS' PERIOD BEGINS WITH THE MONTH IN WHICH THE MINIMUM FLIGHT REQUIREMENTS ARE MET. 9 COMP. GEN. 487, AND B- 27848, AUGUST 20, 1942. SEE, ALSO, PARAGRAPH 4, ARMY REGULATIONS 35- 1480. SINCE THE OFFICER IN THE INSTANT CASE FAILED DURING THE PERIOD SEPTEMBER 1, TO NOVEMBER 30, 1943, TO MEET THE FLIGHT REQUIREMENTS PRESCRIBED BY SECTION 10 OF THE EXECUTIVE ORDER, AND HAVING PERFORMED NO FLIGHTS IN DECEMBER, THE FACT THAT DURING JANUARY, 1944, HE PERFORMED 20 FLIGHTS TOTALING 13 HOURS AND 10 MINUTES DOES NOT OPERATE TO ENTITLE HIM TO AVIATION PAY FOR THE PERIOD COVERED BY THE INSTANT VOUCHER--- OCTOBER 21, TO DECEMBER 31, 1943. ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.