B-47398, SEPTEMBER 5, 1945, 25 COMP. GEN. 260

B-47398, SEPTEMBER 5, 1945, 25 COMP. GEN. 260

PAY - AVIATION DUTY - CONTINUANCE OF ENLISTED NAVAL AVIATION PILOTS IN FLYING STATUS AFTER APPOINTMENT AS TEMPORARY OFFICERS ENLISTED MEN HOLDING DESIGNATIONS AS NAVAL AVIATION PILOT AND PERFORMING REGULAR AND FREQUENT AERIAL FLIGHTS UNDER PERMANENT FLIGHT ORDERS WHEN APPOINTED AS TEMPORARY OFFICERS PURSUANT TO THE ACT OF JULY 24, 1941, IT BEING THE ADMINISTRATIVE PURPOSE TO CONTINUE THEIR FLYING STATUS WITHOUT BREAK, ARE ENTITLED TO INCREASED PAY FOR FLYING FOR THE PERIOD BETWEEN THE DATE OF APPOINTMENT AND THE DATE OF NOTIFICATION COMPUTED ON THE PAY TO WHICH ENTITLED AS OFFICERS, BY VIRTUE OF THE PROVISIONS OF SECTION 5 OF THE ACT OF JUNE 30, 1942, MAKING TEMPORARY APPOINTMENTS UNDER THE 1941 ACT EFFECTIVE FROM THE DATE ON WHICH MADE. 23 COMP. GEN. 578, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 5, 1945:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24, 1945, WITH ENCLOSURES, REQUESTING DECISION ON THE SPECIFIC QUESTIONS SET FORTH IN PARAGRAPH 5 (A), (B), AND (C) OF A LETTER DATED NOVEMBER 10, 1944, FROM THE OF THE BUREAU OF SUPPLIES AND ACCOUNTS, TRANSMITTED THEREWITH, AS FOLLOWS:

SUBJECT: LIEUT. (JG) PROBERT H. CHISHOLM, USN. 396243--- ENTITLEMENT TO CREDIT OF AVIATION PAY FOR THE PERIOD FROM 9 JUNE T0 26 JULY 1944, IN THE CASE OF.

REF: (A) EXECUTIVE ORDER 9195, DATED 7 JULY 1942.

(B) BUPERS CIRLTR 69-44, 44-306, N.D. BULLETIN OF 15 MAR

1944, SECTION 3 (G).

ENCL. (A) COPY OF SECNAV LTR OF APPOINTMENT FOR TEMPORARY SERVICE,

BUPERS 366-IC-396243, DATED 9 JUNE 1944.

(B) COPY OF BUPERS ORDERS NO. 127531, PERS-3161-LB-2, DATED

20 JUNE 1944.

(C) COPY OF BUPERS LTR PERS-3161-VLWZ, DATED 19 JULY 1944

MODIFYING ENCL (B.)

(D) BUNAV LTR NAV-632-JZ, MM295 39 52 NO. 387-42, DATED 28

APRIL 1942 ( NAVAL AVIATION PILOT DESIGNATION AND

PERMANENT FLIGHT ORDERS).

1. ORDERS TO DUTY INVOLVING FLYING, IN THE CASE OF ENLISTED MEN OF THE NAVY QUALIFIED AS AVIATION PILOTS, HAVE ALWAYS BEEN ISSUED BY THE BUREAU OF NAVAL PERSONNEL AND, IN ACCORDANCE WITH PARAGRAPH 6 OF REFERENCE (A), REMAIN IN EFFECT, UNLESS SUSPENDED IN ACCORDANCE WITH PARAGRAPH 12 THEREOF, UNTIL REVOKED BY THE ISSUING AUTHORITY. IN CONTRADISTINCTION, ENLISTED MEN, OTHER THAN THOSE QUALIFIED AS AVIATION PILOTS AND OBSERVERS, ARE DETAILED TO DUTY INVOLVING FLYING BY THEIR COMMANDING OFFICERS AND SUCH DETAIL MAY BE REVOKED BY THE ISSUING OFFICER OR BY A SUBSEQUENT COMMANDING OFFICER WITHOUT REFERENCE TO THE BUREAU OF NAVAL PERSONNEL. THE AMENDMENT OF REFERENCE (A) BY EXECUTIVE ORDER NO. 9458, DATED 22 JULY 1944, MADE NO CHANGE IN THE ESTABLISHED PROCEDURE FOR ISSUING AND REVOKING ORDERS TO DUTY INVOLVING FLYING, WHICH HAS BEEN FOLLOWED, IN THE CASE OF ENLISTED MEN QUALIFIED AS AVIATION PILOTS, SINCE THE PROMULGATION OF THE FIRST EXECUTIVE ORDER UNDER THE AUTHORITY CONTAINED IN SECTION 20 OF THE ACT OF JUNE 10, 1922.

2. THE PRIMARY DUTY OF ENLISTED MEN QUALIFIED AS AVIATION PILOTS IS DUTY INVOLVING FLYING AND, CONSEQUENTLY, SUCH MEN, WHEN APPOINTED TO WARRANT OR COMMISSIONED RANK, ARE DETAILED TO DUTY INVOLVING FLYING AS FLYING OFFICERS, AS THEIR TEMPORARY APPOINTMENTS ARE MADE TO MEET THE NEEDS OF THE AERONAUTIC ORGANIZATION OF THE NAVY FOR OFFICERS IN THAT CATEGORY. WHEN TEMPORARY APPOINTMENTS TO WARRANT OR COMMISSIONED RANK ARE MADE BY CIRCULAR LETTER IN THE CASE OF ENLISTED MEN HOLDING DESIGNATIONS AS AVIATION PILOTS ISSUED BY THE BUREAU OF NAVAL PERSONNEL, THE PROMULGATING AUTHORITY CONTAINS A DIRECTIVE THAT ALL APPOINTEES SO QUALIFIED AND DESIGNATED AND ON DUTY INVOLVING FLYING, WILL REPORT TO THEIR COMMANDING OFFICER FOR DUTY INVOLVING FLYING. SUCH CIRCULAR LETTERS ALSO CONTAIN THE STATEMENT THAT CONFIRMATION ORDERS WILL NOT BE ISSUED. WHERE TEMPORARY APPOINTMENTS OF SUCH MEN TO WARRANT OR COMMISSIONED RANK ARE MADE BY INDIVIDUAL LETTER SIGNED BY THE SECRETARY OF THE NAVY, ORDERS TO DUTY INVOLVING FLYING IN OFFICER STATUS ARE ISSUED BY THE BUREAU OF NAVAL PERSONNEL AS SOON AFTER THE EFFECTIVE DATE OF TEMPORARY APPOINTMENT AS ADMINISTRATIVE PROCEDURE WILL PERMIT, AND THE APPOINTEE IS DIRECTED THEREIN TO REPORT TO HIS COMMANDING OFFICER FOR DUTY INVOLVING FLYING UPON ACCEPTANCE OF APPOINTMENT. THE PURPOSE OF SUCH ORDERS, WHETHER INCLUDED IN A CIRCULAR LETTER OR ISSUED INDIVIDUALLY, IS TO CONTINUE IN EFFECT EXISTING DETAIL TO DUTY INVOLVING FLYING (ISSUED BY THE BUREAU OF NAVAL PERSONNEL) ON CHANGE FROM ENLISTED TO OFFICER STATUS. IN EACH CASE THERE IS NECESSARILY A DELAY BETWEEN THE EFFECTIVE DATE OF THE TEMPORARY APPOINTMENT, I.E., DATE MADE BY THE PRESIDENT, DATE OF RECEIPT OF APPOINTMENT, AND DATE OF RECEIPT OF ORDERS DETAILING THE INDIVIDUAL TO DUTY INVOLVING FLYING IN AN OFFICER STATUS.

3. ROBERT HATCHARD CHISHOLM, 295 39 42, CAP/PA), USN, WAS TEMPORARILY APPOINTED BY THE PRESIDENT TO THE RANK OF LIEUTENANT (JG) ON 9 JUNE 1944. THIS APPOINTMENT WAS DELIVERED TO, AND RECEIPT ACKNOWLEDGED BY, THIS OFFICER ON 27 JULY 1944. AT THE TIME OF RECEIPT OF SUCH TEMPORARY APPOINTMENT, SUBJECT OFFICER WAS ON DUTY INVOLVING FLYING WITH HEADQUARTERS SQUADRON FIVE-ONE UNDER PERMANENT FLIGHT ORDERS AND DESIGNATION AS NAVAL AVIATION PILOT ISSUED BY THE BUREAU OF NAVAL PERSONNEL ON 28 APRIL 1942, EFFECTIVE 19 MAY 1942. DURING THE PERIOD 9 JUNE TO 26 JULY 1944, SUBJECT OFFICER WAS IN FACT PARTICIPATING IN REGULAR AND FREQUENT AERIAL FLIGHTS PURSUANT TO ORDERS OF COMPETENT AUTHORITY ( BUREAU OF NAVAL PERSONNEL) ISSUED TO HIM AS AN ENLISTED NAVAL AVIATION PILOT, AND SUCH ORDERS WERE NOT REVOKED BY THE ISSUING AUTHORITY EITHER PRIOR OR SUBSEQUENT TO THE RECEIPT OF ENCLOSURE (B) WHICH, ON EFFECTIVE DATE OF CHANGE FROM ENLISTED TO OFFICER STATUS, MERELY CONTINUED IN EFFECT THE EXISTING DETAIL TO DUTY INVOLVING FLYING.

4. IT IS NOT CONSIDERED THAT THE RULING IN DECISION OF 10 FEBRUARY 1944 (23 COMP. GEN. 578) IS APPLICABLE IN THE CASE OF LIEUT. (JG) CHISHOLM, IN THAT THE TWO ENLISTED MEN (AVIATION CHIEF MACHINIST'S MATES) WHOSE CASE WAS CONSIDERED THEREIN, DID NOT HOLD A DESIGNATION AS QUALIFIED AVIATION PILOT OR OBSERVER AND WERE, THEREFORE, NOT DETAILED TO FLYING BY PERMANENT ORDERS ISSUED BY THE BUREAU OF NAVAL PERSONNEL. IN SUCH CASE, IT ALSO WILL BE NOTED THAT ORDERS WERE NOT ISSUED BY THE BUREAU OF NAVAL PERSONNEL. IN SUCH CASE, IT ALSO WILL BE NOTED THAT ORDERS WERE NOT ISSUED BY THE BUREAU OF NAVAL PERSONNEL TO CONTINUE THEM ON DUTY INVOLVING FLYING IN OFFICER STATUS. SINCE TEMPORARY APPOINTMENTS, UNLESS EXPRESSLY DECLINED, ARE EFFECTIVE FOR ALL PURPOSES FROM DATE MADE BY THE PRESIDENT, THE TWO MEN IN QUESTION WERE, TO ALL INTENTS AND PURPOSES, COMMISSIONED OFFICERS FROM DATE SUCH APPOINTMENTS WERE MADE, EVEN THOUGH THEIR PERMANENT ENLISTED STATUS WAS NOT ABROGATED. CONSEQUENTLY, FLIGHTS PERFORMED IN THE INTERVAL BETWEEN DATE, AND RECEIPT, OF TEMPORARY APPOINTMENT WERE NOT ACTUALLY MADE PURSUANT TO ORDERS OF "COMPETENT AUTHORITY" UNDER A STRICT INTERPRETATION OF THAT TERM WITHIN THE MEANING OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, OR IN ACCORDANCE WITH ORDERS ISSUED AS PROVIDED IN ACCORDANCE WITH PARAGRAPH 2 OF REFERENCE (A).

5. IT IS CONSIDERED THAT LIEUT. (JG) CHISHOLM IS ENTITLED TO AVIATION PAY FROM 9 JUNE TO 26 JULY 1944, COMPUTED ON THE PAY TO WHICH ENTITLED IN THAT RANK. IT LIKEWISE IS CONSIDERED THAT AN ENLISTED MAN HOLDING A DESIGNATION AS NAVAL AVIATION PILOT AND ON DUTY INVOLVING FLYING AT TIME OF RECEIPT OF TEMPORARY APPOINTMENT MADE BY THE BUREAU OF NAVAL PERSONNEL CIRCULAR LETTER WHICH CONTAINS THE PROVISO PREVIOUSLY REFERRED TO HEREIN, IS ENTITLED, BETWEEN THE EFFECTIVE DATE, AND RECEIPT OF SUCH TEMPORARY APPOINTMENT, TO OTHERWISE PROPER CREDIT OF AVIATION PAY COMPUTED ON THE PAY TO WHICH ENTITLED AS A WARRANT OR COMMISSIONED OFFICER. HOWEVER, IT IS DEEMED ADVISABLE TO PRESENT TO THE COMPTROLLER GENERAL THE QUESTIONS SET FORTH BELOW ON THESE MATTERS IN ORDER THAT THE RULING IN 23 COMP. GEN. 578 MAY BE AMPLIFIED OR DISTINGUISHED WITH RESPECT THERETO. SUCH ACTION IS CONSIDERED NECESSARY TO AVOID THE POSSIBILITY OF SUSPENSIONS IN THE ACCOUNTS OF DISBURSING OFFICERS AS A RESULT OF MISINTERPRETATION AS TO THE APPLICABILITY OF THAT RULING IN SUCH CASES:

(A) WHETHER LIEUT. (JG) CHISHOLM IS ENTITLED TO CREDIT OF AVIATION PAY FOR THE PERIOD FROM 9 JUNE TO 26 JULY 1944, COMPUTED ON THE PAY TO WHICH ENTITLED IN THE RANK OF LIEUTENANT (JG) USN, ASSUMING THAT HE MET THE FLIGHT REQUIREMENTS SPECIFIED IN SECTION 10 OF EXECUTIVE ORDER NO. 9195 FOR THE MONTHS OF JUNE AND JULY 1944?

(B) IF THE ANSWER TO (A) IS NEGATIVE, IS LIEUT. (JG) CHISHOLM ENTITLED, UNDER SECTION 7 (A) OF THE ACT OF JULY 24, 1941, TO INCLUDE AS AN ITEM OF SAVED PAY, AVIATION PAY COMPUTED ON THE PAY TO WHICH ENTITLED IN ENLISTED STATUS BETWEEN 9 JUNE AND 26 JULY 1944?

(C) AN ENLISTED MAN HOLDING A DESIGNATION AS NAVAL AVIATION PILOT AND PARTICIPATING IN REGULAR AND FREQUENT AERIAL FLIGHTS PURSUANT TO PERMANENT FLIGHT ORDERS ISSUED BY THE BUREAU OF NAVY PERSONNEL, IS APPOINTED BY THE PRESIDENT ON 15 MARCH 1944 FOR TEMPORARY SERVICE IN THE RANK OF ENSIGN. NOTIFICATION OF THIS APPOINTMENT WAS PUBLISHED IN REFERENCE (B), AND THE MAN WAS NOTIFIED OF HIS TEMPORARY APPOINTMENT AND REPORTED TO HIS COMMANDING OFFICER FOR DUTY INVOLVING FLYING THEREUNDER ON 23 APRIL 1944.

(1) IS THE MAN ENTITLED TO CREDIT OF AVIATION PAY FOR THE PERIOD FROM 15 MARCH 1944 TO 22 APRIL 1944, COMPUTED ON THE PAY TO WHICH ENTITLED IN THE TEMPORARY RANK OF ENSIGN, PROVIDED FLIGHT REQUIREMENTS ARE MET FOR THE MONTHS OF MARCH AND APRIL 1944?

(2) IN CASE THE ANSWER TO (1) IS IN THE NEGATIVE, IS THE MAN ENTITLED, UNDER SECTION 7 (A) OF THE ACT OF JULY 24, 1941, TO INCLUDE AS AN ITEM OF SAVED PAY, AVIATION PAY COMPUTED ON THE PAY TO WHICH ENTITLED IN ENLISTED STATUS DURING THE PERIOD 15 MARCH TO 22 APRIL 1944, PROVIDED FLIGHT REQUIREMENTS WERE MET?

(3) IN CASE THE ANSWER TO (C) (1) IS IN THE AFFIRMATIVE, AND THE ENLISTED MAN MET THE FLIGHT REQUIREMENTS FOR THE MONTH OF MARCH BUT, ON DATE OF RECEIPT OF TEMPORARY APPOINTMENT, HAD NOT MET THE FLIGHT REQUIREMENTS FOR THE PERIOD 1-22 APRIL 1944, MAY FLIGHT REQUIREMENTS FOR THE MONTH OF APRIL BE MET, WITHIN THE PERIOD PRESCRIBED IN REFERENCE (A), AFTER ACCEPTANCE OF TEMPORARY APPOINTMENT AND REPORTING TO THE COMMANDING OFFICER FOR DUTY INVOLVING FLYING IN OFFICER STATUS?

SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, PROVIDES IN PART:

SEC. 18. 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 * * *

IT CONSISTENTLY HAS BEEN HELD UNDER THAT SECTION AND CORRESPONDING PROVISIONS OF PRIOR STATUTES ON THE SAME SUBJECT, THAT IN ORDER TO BE ENTITLED TO FLYING PAY OFFICERS OF THE NAVY MUST BE ASSIGNED TO DUTY REQUIRING THEM TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS AND MUST, IN CONSEQUENCE OF COMPETENT ORDERS, SO PARTICIPATE IN AERIAL FLIGHTS AS REQUIRED BY THE APPLICABLE EXECUTIVE ORDERS. AN ORDER DETAILING AN OFFICER TO DUTY INVOLVING FLYING, OTHER CONDITIONS BEING MET, IS EFFECTIVE PURSUANT TO THE TERMS OF THE ORDER, FOR PURPOSES OF FLYING PAY, WHEN THE PARTICULAR OFFICER REPORTS FOR AND ENTERS UPON THE DUTY PRESCRIBED IN THE ORDER. SEE 20 COMP. GEN. 176, AND CASES CITED THEREIN. ORDINARILY, OF COURSE, A PERSON ORIGINALLY APPOINTED TO A COMMISSIONED GRADE IS ENTITLED TO THE REGULAR PAY AND ALLOWANCES OF THAT GRADE FROM THE DATE OF ACCEPTANCE. HOWEVER, IN THE PRESENT CASE THERE ARE INVOLVED ENLISTED MEN APPOINTED TEMPORARY OFFICERS UNDER THE ACT OF JULY 24, 1941, 55 STAT. 603, AND THE DIFFICULTY ARISES BY VIRTUE OF SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, WHICH PROVIDES AS FOLLOWS:

SEC. 5. PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY-SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

UNLIKE THE QUESTION CONSIDERED IN THE REFERRED-TO DECISION, 23 COMP. GEN 578, WHERE IT WAS SOUGHT TO CONTINUE IN EFFECT A FLYING STATUS FOR ENLISTED MEN BY THE ISSUANCE OF LOCAL FLYING ORDERS AFTER THEY HAD RECEIVED NOTICE OF THEIR TEMPORARY APPOINTMENTS AS WARRANT OFFICERS, IT IS REPRESENTED IN THE PRESENT CASE THAT THE TEMPORARY APPOINTMENT AS WARRANT OR COMMISSIONED OFFICERS OF ENLISTED MEN HOLDING DESIGNATIONS AS "NAVAL AVIATION PILOT" CONTEMPLATES A CONTINUATION OF THEIR FLYING STATUS AND OF THEIR ORDERS REQUIRING THEM TO PARTICIPATE REGULARLY ND FREQUENTLY IN AERIAL FLIGHTS, WITHOUT BREAK. AS POINTED OUT IN THE LETTER OF NOVEMBER 10, 1944, FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS,"THE PURPOSE OF SUCH ORDERS (INVOLVING FLYING), WHETHER INCLUDED IN A CIRCULAR LETTER OR ISSUED INDIVIDUALLY, IS TO CONTINUE IN EFFECT EXISTING DETAIL TO DUTY INVOLVING FLYING (ISSUED BY THE BUREAU OF NAVAL PERSONNEL) ON CHANGE FROM ENLISTED TO OFFICER STATUS.' THIS INTENT APPEARS TO HAVE BEEN MADE PLAIN BY PARAGRAPHS 3 (G) AND (H) OF CIRCULAR LETTER 69-44 INVOLVING SUCH APPOINTMENTS OF ENLISTED AVIATION PILOTS TO TEMPORARY WARRANT OR COMMISSIONED GRADES, AS FOLLOWS:

(G) ALL APPOINTEES WHO NOW HOLD DESIGNATION AS NAVAL AVIATION PILOT AND ON DUTY INVOLVING FLYING, REPORT TO COMMANDING OFFICER FOR DUTY INVOLVING FLYING. SUBMIT TWO PRINTS OF THE SAME NEGATIVE, FRONT VIEW, SIZE 2 1/2 BY 2 1/2 INCHES, NAME AND RANK ON BACK OF PHOTOGRAPH, FOR USE IN CONNECTION ISSUANCE NAVAL AVIATOR'S DESIGNATION.

(H) CONFIRMATION ORDERS WILL NOT BE ISSUED. WHILE THE RULE STATED IN 23 COMP. GEN. 578, INVOLVED SAVED PAY, INCLUDING FLYING PAY OF ENLISTED MEN SUBSEQUENT TO THE DATE OF TEMPORARY APPOINTMENT AS WARRANT OFFICERS, NO FLIGHT ORDERS AS TEMPORARY WARRANT OFFICER DURING THE PERIOD COVERED BY THE CLAIM WERE ISSUED AND, BASICALLY, THE FLYING PAY BENEFITS WERE CIRCUMSCRIBED BY THE LIMITED OPERATION OF THE ORDERS ISSUED TO ENLISTED MEN SERVING AS AVIATION CHIEF MACHINISTS' MATES.

BY CHANGES IN SECTION (F) OF THE " PAY BILL INSTRUCTIONS" IT WAS PROVIDED, EFFECTIVE JULY 1, 1929, THAT THE ISSUANCE OF FLIGHT ORDERS TO ALL CHIEF AVIATION PILOTS AND AVIATION PILOTS, FIRST CLASS, WOULD BE MADE BY THE BUREAU OF NAVIGATION (NOW BUREAU OF NAVAL PERSONNEL) INSTEAD OF SUCH ORDERS BEING ISSUED BY COMMANDING OFFICERS. SEE DECISION OF JULY 13, 1929, TO THE SECRETARY OF THE NAVY, A-27833. THE EVIDENT PURPOSE OF SUCH POLICY WAS TO CONFER A RELATIVELY PERMANENT STATUS TO ENLISTED MEN OF THE NAVY WHO ATTAINED DESIGNATION AS AVIATION PILOT UNDER PARAGRAPH 2 OF SECTION 3 OF THE ACT OF JUNE 24, 1923, 44 STAT. 766, 767, 34 U.S.C. 735, WHICH PROVIDES AS FOLLOWS:

PAR. 2. THAT HEREAFTER WHEN THE TERM "AVIATION PILOT" IS USED IN THIS ACT OR ANY OTHER ACT IT SHALL MEAN ANY ENLISTED MAN IN THE NAVY OR MARINE CORPS WHO HAS SUCCESSFULLY COMPLETED THE COURSE PRESCRIBED FOR AVIATION PILOTS AND WHO HAS BEEN OR MAY HEREAFTER BE DESIGNATED OR APPOINTED AN AVIATION PILOT BY COMPETENT AUTHORITY AND WHO HAS FLOWN ALONE IN A HEAVIER -THAN-AIR CRAFT NOT LESS THAT SEVENTY-FIVE HOURS AND WHO HAS FLOWN IN HEAVIER-THAN-AIR CRAFT A TOTAL OF NOT LESS THAN TWO HUNDRED HOURS.

THE TERM "PILOT" SHALL BE CONSTRUED TO MEAN A NAVAL AVIATOR OR AN AVIATION PILOT.

IT WILL BE NOTED THAT THE FLYING QUALIFICATIONS FOR ENLISTED "AVIATION PILOT" CONTAINED IN SAID PARAGRAPH 2 ARE PRACTICALLY IDENTICAL WITH THOSE CONTAINED IN PARAGRAPH (1) OF THE SAME SECTION WITH REFERENCE TO THE QUALIFICATIONS OF A "NAVAL AVIATOR" IN A HEAVIER THAN-AIR CRAFT. WHILE, ADMITTEDLY, THERE IS A LAPSE OF TIME BETWEEN THE DATE OF APPOINTMENT AND DATE OF ACCEPTANCE AND DATE OF ACTUAL REPORTING FOR DUTY UNDER ORDERS REQUIRING REGULAR AND FREQUENT AERIAL FLIGHTS AS AN OFFICER; AND HENCE THERE STRICTLY COULD BE NO PERFORMANCE OF AERIAL FLIGHTS AS A TEMPORARY OFFICER ENTITLED TO FLYING PAY UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, IT IS BELIEVED THAT THE STATUTORY QUALIFICATIONS REQUIRED OF THE ENLISTED MAN DESIGNATED AS AVIATION PILOT AND THE DECLARED PURPOSE OF THE NAVY DEPARTMENT IMMEDIATELY TO UTILIZE THEIR SERVICES AS FLYING OFFICERS UPON TEMPORARY APPOINTMENT UNDER THE ACT OF JULY 24, 1941, ARE LEGALLY SUFFICIENT TO WARRANT THE VIEW THAT SECTION 5 OF THE ACT OF JUNE 30, 1942, SUPRA, AUTHORIZES IN SUCH CASES THE INCLUSION OF FLYING PAY IN THE "PAY AND ALLOWANCES" PAYABLE FROM THE DATE ON WHICH THEIR APPOINTMENTS ARE MADE BY THE PRESIDENT, OTHER CONDITIONS BEING MET AS TO MINIMUM FLIGHT REQUIREMENTS. THAT IS TO SAY, WHILE IT APPEARS OBVIOUS THAT THIS PARTICULAR CLASS OF ENLISTED MEN, HOLDING PERMANENT DESIGNATIONS AS AVIATION PILOTS, CONTINUE TO SERVE IN THEIR ENLISTED CAPACITY AND, AS A PRACTICAL MATTER, DO NOT AND CANNOT FUNCTION AS FLYING OFFICERS UNDER A DETAIL REQUIRING REGULAR AND FREQUENT AERIAL FLIGHTS UNDER THEIR WARRANT OR COMMISSIONED STATUS, UNTIL NOTICE AND ACCEPTANCE OF APPOINTMENT AS SUCH TEMPORARY OFFICERS, THE DECLARED ADMINISTRATIVE PURPOSE WHICH CONTEMPLATES THE DETAIL TO DUTY INVOLVING REGULAR AND FREQUENT AERIAL FLIGHTS CONTEMPORANEOUSLY WITH SUCH APPOINTMENT AND THE PROVISION CONTAINED IN SECTION 5 OF THE ACT OF JUNE 30, 1942, SUPRA, THAT THE TEMPORARY APPOINTMENT, UNLESS EXPRESSLY DECLINED,"SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE" WHEN CONSIDERED TOGETHER, MAY BE VIEWED AS INCLUDING IN THE TERM "PAY AND ALLOWANCES FROM THE DATE ON WHICH SUCH APPOINTMENTS ARE MADE" THE FLYING PAY TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD SUCH DETAIL TO DUTY INVOLVING REGULAR AND FREQUENT AERIAL FLIGHTS AS TEMPORARY OFFICERS BEEN RECEIVED ON THE DATE OF SUCH APPOINTMENTS.

AS TO THE SPECIFIC CASE OF ROBERT H. CHISHOLM, IT APPEARS THAT BY ORDERS OF THE SECRETARY OF THE NAVY DATED JUNE 9, 1944, THIS OFFICER WAS APPOINTED A LIEUTENANT (JG) IN THE NAVY FOR TEMPORARY SERVICE TO RANK FROM JUNE 8, 1944. BY ORDERS OF THE CHIEF OF NAVAL PERSONNEL DATED JUNE 20, 1944, ADDRESSED TO LIEUTENANT CHISHOLM VIA THE COMMANDING OFFICER, BOMBING SQUADRON 103, IT WAS PROVIDED AS FOLLOWS:

1. UPON THE ACCEPTANCE OF YOUR TEMPORARY APPOINTMENT AS A LIEUTENANT (JG) IN THE U.S. NAVY, YOU WILL REPORT TO THE COMMANDING OFFICER, BOMBING SQUADRON 103, FOR DUTY INVOLVING FLYING.

3. THESE ORDERS CONSTITUTE YOUR ASSIGNMENT TO DUTY IN A PART OF THE AERONAUTIC ORGANIZATION OF THE NAVY AND YOU ARE HEREBY DETAILED TO DUTY INVOLVING FLYING EFFECTIVE UPON REPORTING IN OBEDIENCE TO THESE ORDERS.

BY ORDERS FROM THE CHIEF OF NAVAL PERSONNEL DATED JULY 19, 1944, ADDRESSED TO THE OFFICER VIA THE COMMANDING OFFICER AT HEADQUARTERS SQUADRON FIVE-ONE, FLEET AIR WING FIVE, THE ORDERS OF JUNE 20, 1944, WERE MODIFIED SO THAT THE OFFICER WOULD REPORT TO THE COMMANDING OFFICER, HEADQUARTERS SQUADRON FIVE-ONE, FLEET AIR WING FIVE, FOR DUTY INVOLVING FLYING INSTEAD OF REPORTING TO THE COMMANDING OFFICER, BOMBING SQUADRON 103. THE ORDERS OF JUNE 9, 1944 WERE DELIVERED AND THE OFFICER REPORTED FOR DUTY INVOLVING FLYING JULY 27, 1944. IT APPEARS THAT MR. CHISHOLM WAS DESIGNATED " NAVAL AVIATION PILOT" APRIL 28, 1942, WITH A PERMANENT FLYING ORDER INVOLVING ACTUAL FLYING IN AND CONTROL OF AIRCRAFT EFFECTIVE MAY 19, 1942, IT THUS IS APPARENT THAT THE INDIVIDUAL ORDERS TO LIEUTENANT CHISHOLM, FOLLOWING HIS APPOINTMENT UNDER THE ACT OF JULY 24, 1941, WERE INTENDED TO ACCOMPLISH SUBSTANTIALLY THE SAME PURPOSE AS ORDERS ISSUED IN THE CIRCULAR LETTER REFERRED TO, INSOFAR AS CONTINUOUS FLYING STATUS IS CONCERNED, THE DELAY IN RECEIPT BY THE APPOINTEE IN EITHER EVENT BEING OCCASIONED BY THE DISTANT LOCATION AND THE TIME REQUIRED IN THE DELIVERY OF THE ORDERS.

ACCORDINGLY, ON THE BASIS OF THE FOREGOING THE QUESTIONS PRESENTED ARE ANSWERED CATEGORICALLY AS FOLLOWS:

(A). YES.

(B). NO ANSWER IS REQUIRED.

(C) (1). YES.

(C) (2). NO ANSWER REQUIRED.

(C) (3). SINCE THE DIRECTIONS CONTAINED IN THE CIRCULAR LETTER CONTEMPLATE THE DETAIL TO REGULAR AND FREQUENT AERIAL FLIGHTS AS AN OFFICER FROM THE DATE OF APPOINTMENT, WITH NO BREAK IN CONTINUITY OF FLYING FROM THE PERMANENT AVIATION PILOT'S ENLISTED STATUS, FLIGHT REQUIREMENTS FOR THE MONTH OF APRIL, 1944, IF MET WITHIN THE PERIOD PRESCRIBED BY THE APPLICABLE EXECUTIVE ORDER, WOULD SUPPORT PAYMENTS OF FLYING PAY UNDER SECTION 18 OF THE ACT OF JUNE 16, 1942, AND SECTION 5 OF THE ACT OF JUNE 30, 1942, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.