B-48076, APR 15, 1933

B-48076, APR 15, 1933

PRECIS-UNAVAILABLE

MAJOR W. O. RAWLS, F.D., U.S. ARMY, WAR DEPARTMENT:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 16, 1933, AS FOLLOWS:

"THE UNDERSIGNED, AS CUSTODIAN OF THE RECORDS OF MAJOR J. B. HARPER, F.D., WASHINGTON, D.C., DESIRES TO APPEAL FROM AND REQUEST REVISION OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN NOTICE OF EXCEPTION DATED FEB. 15, 1933 IN DISALLOWING PAYMENT MADE BY MAJOR HARPER TO MRS. JANE S. DEAN FOR SIX MONTHS' GRATUITY PAY ON ACCOUNT OF RICHARD H. DEAN, LATE 1ST LIEUT., A.C., ON VOUCHER 2667, JULY 1932. REMARKS OF THE GENERAL ACCOUNTING OFFICE, QUOTED,--

"'SIX MONTHS' GRATUITY PAY ON ACCOUNT OF RICHARD H. DEAN, LATE 1ST LIEUT., A.C., PAID TO JANE S. DEAN, WIDOW. OFFICER WAS PAID FLIGHT PAY FROM JUNE 1-30, 1931 ON VOU. 4548, JUNE 1931, ACCOUNTS OF MAJOR H. G. FOSTER, WHICH WAS THE LAST FLIGHT PAY OFFICER RECEIVED. PARA. 22 - S.O. 39, W.D. 1932 SHOWS LT. DEAN WAS ORDERED TO PROCEED TO HIS HOME ON OR ABOUT FEBRUARY 29, 1932, AND AWAIT RETIREMENT. OFFICER WAS NOT IN A FLYING STATUS AT DATE OF HIS DEATH. DISALLOWED $550.02. DEBT REPORTED.'

"THIS OFFICER CONTENDS THAT 1ST LIEUT. RICHARD H. DEAN, A.C., AT THE TIME OF HIS DEATH WAS SUBJECT TO PARA. 1, PERSONNEL ORDERS 228 (OFFICE CHIEF OF AIR SERVICE), SUCH ORDERS NOT HAVING BEEN REVOKED, AMENDED, OR CHANGED BY ANY OTHER ORDER UP TO THE TIME OF HIS DEATH. THEREFORE IT IS HELD THAT THIS OFFICER AT THE TIME OF HIS DEATH WAS - IN ACCORDANCE WITH PARA. 1, P.O. 227 - IN A DUTY STATUS REQUIRING PARTICIPATION IN AERIAL FLIGHTS. IS UPON THIS CONTENTION, SUPPORTED BY REMARKS OF THE OFFICE CHIEF OF AIR CORPS PER 1ST INDORSEMENT MARCH 13, 1933, AND IN VIEW OF 7 COMP.GENERAL 476, THAT YOUR CONSIDERATION OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE IS REQUESTED, WITH A VIEW TO CREDITING MAJOR HARPER'S ACCOUNTS WITH THE PAYMENT AS MADE ON VOUCHER 2667."

FIRST INDORSEMENT OF MARCH 13, 1933, REFERRED TO IN YOUR LETTER IS AS FOLLOWS:

"IT WOULD APPEAR FROM THE RECORDS AVAILABLE IN THIS OFFICE THAT LIEUTENANT DEAN WAS, AT THE TIME OF HIS DEATH, DETAILED TO DUTY INVOLVING PARTICIPATION IN AERIAL FLIGHTS (PARAGRAPH 1, PERSONNEL ORDERS NO. 227, OFFICE CHIEF OF AIR CORPS, SEPTEMBER 28, 1925). LIEUTENANT DEAN, DUE TO SICKNESS IN HOSPITAL, HAD NOT PROCEEDED TO HIS HOME TO AWAIT RETIREMENT AND UNDER HIS ORDERS DETAILING HIM TO FLYING DUTY COULD HAVE BEEN DIRECTED TO ENGAGE IN FLYING HAD HE BEEN ABLE TO PASS THE REQUIRED PHYSICAL EXAMINATION. INSOFAR AS HIS ORDERS WENT HE WAS STILL ON FLYING STATUS. ACTUALLY HE HAD NOT FLOWN SINCE JUNE 1931, BUT THE FACT STILL REMAINS THAT UNDER HIS ORDERS HE WAS SUBJECT TO BE DIRECTED TO PERFORM FLYING MISSIONS AT ANY TIME SINCE THEY CONTINGENT SOLELY UPON HIS PASSING THE REQUIRED PHYSICAL EXAMINATION."

IT APPEARS THAT BY PARAGRAPH 1, PERSONNEL ORDERS NO. 227, DATED SEPTEMBER 28, 1925, OFFICER OF THE CHIEF OF AIR SERVICE, WAR DEPARTMENT, WASHINGTON, D.C., LIEUTENANT RICHARD H. DEAN (S.C.), A.S., WAS DETAILED TO DUTY INVOLVING FLYING; THAT HE WAS LAST PAID FLYING PAY ON VOUCHER NO. 4548, IN THE JUNE, 1931, ACCOUNTS OF MAJOR H. G. FOSTER, F.D., U.S. ARMY, COVERING THE PERIOD JUNE 1 TO 30, 1931; THAT DUE TO THE FACT HE WAS SICK IN HOSPITAL (NATURE OF ILLNESS NOT DISCLOSED BY THE RECORD) HE FAILED THEREAFTER TO MAY 12, 1932, THE DATE OF HIS DEATH, TO QUALIFY FOR FLYING PAY, A PERIOD OF ABOUT TEN AND ONE-HALF MONTHS; AND THAT BY PARAGRAPH 22, SPECIAL ORDERS NO. 39, WAR DEPARTMENT, FEBRUARY 16, 1932, LIEUTENANT DEAN WAS DIRECTED TO PROCEED TO HIS HOME ON OR ABOUT FEBRUARY 29, 1932, AND AWAIT RETIREMENT.

IT APPEARS, HOWEVER, THAT LIEUTENANT DEAN DID NOT, OR COULD NOT, COMPLY WITH HIS ORDERS OF FEBRUARY 16, 1932, AND THAT HE REMAINED AT SAN FRANCISCO, CALIFORNIA, UNTIL MAY 12, 1932, THE DATE OF HIS DEATH. IT DOES NOT APPEAR THAT THE ORDERS OF FEBRUARY 16, 1932, WERE REVOKED.

IN 7 COMP.GEN. 476, IT WAS HELD, QUOTING THE SYLLABUS:

"WHERE AN OFFICER OF THE AIR CORPS OF THE ARMY, HOLDING A PILOT'S RATING AND ASSIGNED TO FLYING DUTY, DIES, WITHOUT MAKING ANY FLIGHTS DURING THE THREE MONTHS SUCCEEDING THE QUARTER IN WHICH HE LAST COMPLIED WITH THE FLYING REQUIREMENTS, HIS RATE OF PAY FOR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY IS INCLUSIVE OF THE INCREASED PAY FOR FLYING, ALTHOUGH NO FLYING PAY ACCRUED TO HIM ON THE DATE OF HIS DEATH. 17 COMP.DEC. 828, DISTINGUISHED."

ON PAGE 478, OF THE SAME DECISION, IT WAS POINTED OUT THAT:

"*** IN THESE CIRCUMSTANCES, CERTAINLY COLLOQUIALLY, AT ANY TIME BEFORE THE EXPIRATION OF THESE THREE MONTHS THE DECEASED OFFICER'S RATE OF PAY WAS HIS BASE AND LONGEVITY PAY INCREASED BY 50 PERCENT."

THE STATUTE UNDER WHICH THE PAYMENT WAS MADE, ACT OF DECEMBER 17, 1919, 41 STAT. 367, AUTHORIZES PAYMENT OF AN AMOUNT EQUAL TO SIX MONTHS' PAY "AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH." ORDINARILY A MERE EXAMINATION OF THE PAY ROLL OR VOUCHER ON WHICH AN OFFICER OR ENLISTED MAN WAS LAST PAID IS SUFFICIENT TO DETERMINE THE "RATE" OF PAY RECEIVED BY HIM AT THE DATE OF HIS DEATH. IN THE CASE OF OFFICERS OF THE ARMY ASSIGNED TO DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS, THE LAW PROVIDES FOR AN INCREASE OF PAY OF 50 PERCENT AND THE EXECUTIVE ORDER FIXING THE MINIMUM FLIGHT REQUIREMENTS PROVIDES THAT IF THE OFFICER DOES NOT MAKE THE REQUIRED FLIGHTS IN A MONTH, HE MAY TAKE TWICE THE REQUIRED FLIGHTS IN THE FOLLOWING MONTH, OR THREE TIMES THE REQUIRED FLIGHTS IN THE THIRD MONTH. THERE IS NO PROVISION FOR MAKING UP FLIGHTS AFTER THE THIRD MONTH. WHERE FLIGHT REQUIREMENTS HAVE NOT BEEN MET WITHIN TWO MONTHS AND A PORTION OF THE THIRD MONTH, IT CANNOT BE STATED UNTIL THE LAST DAY OF THE THIRD MONTH WHETHER THE OFFICER'S "RATE" OF PAY DOES OR DOES NOT INCLUDE FLYING PAY. IN THESE CIRCUMSTANCES, THE DECISION CITED, 7 COMP.GEN. 476, MADE A LIBERAL APPLICATION OF THE LAW AND DETERMINED THAT IN SUCH A CASE THE OFFICER'S "RATE" OF PAY WAS INCLUSIVE OF FLYING PAY. BUT THAT HOLDING HAS NO APPLICATION TO AN OFFICER WHO FOR MONTHS HAS MADE NO FLIGHT, MERELY BECAUSE FLIGHT ORDERS ADDRESSED TO HIM WERE PERMITTED TO REMAIN IN EFFECT AND APPARENTLY NOTWITHSTANDING HIS PHYSICAL CONDITION. THERE IS NO QUESTION IN THE CASE OF THIS OFFICER BUT THAT HIS RATE OF PAY FROM JULY 1, 1933, TO THE DATE OF HIS DEATH, WAS THE PAY OF HIS GRADE AND LENGTH OF SERVICE AND THAT IS ALL THAT WAS AUTHORIZED TO BE PAID.

THE PAYMENT MADE ON VOUCHER NO. 2667, IN THE JULY, 1932, ACCOUNTS OF MAJOR J. B. HARPER, F.D., U.S. ARMY, ERRONEOUSLY INCLUDED 50 PERCENT ADDITIONAL PAY FOR FLYING. THE DISALLOWANCE OF SUCH ERRONEOUS PAYMENT IS CORRECT AND MUST BE, AND IS, SUSTAINED. THE AMOUNT INVOLVED SHOULD BE DEPOSITED.