B-51138, JANUARY 4, 1946, 25 COMP. GEN. 483

B-51138, JANUARY 4, 1946, 25 COMP. GEN. 483

PAY - AVIATION DUTY - FLIGHT REQUIREMENTS UNDER COMBAT CONDITIONS THE PROVISIONS OF SUBPARAGRAPH (F), PARAGRAPH 10, OF EXECUTIVE ORDER NO. 9195, AUTHORIZING "A PERIOD OF SIX CONSECUTIVE CALENDAR MONTHS" FOR MAKING UP FLIGHT REQUIREMENTS WHERE, DUE TO MILITARY OPERATIONS OF A PARTICULAR COMMAND UNDER COMBAT CONDITIONS, PERSONNEL WERE "UNABLE TO PERFORM THE AERIAL FLIGHTS REQUIRED BY SUBPARAGRAPH (C)," ARE OPERATIVE ONLY WHERE COMBAT CONDITIONS IN THE THIRD MONTH PREVENTED THE PERFORMANCE OF SUFFICIENT FLIGHTS OR THE ACCUMULATION OF SUFFICIENT FLYING HOURS TO MEET THE FLIGHT REQUIREMENTS FOR THE THREE MONTHS' PERIOD ENDING WITH THAT MONTH; AND THE CERTIFICATION BY THE COMMANDING OFFICER REQUIRED BY SAID SUBPARAGRAPH (F) AS TO SUCH COMBAT CONDITIONS WAS REQUIRED ONLY WITH RESPECT TO THE THIRD MONTH. THE "PERIOD OF SIX CONSECUTIVE CALENDAR MONTHS" PRESCRIBED BY PARAGRAPH 10 (F) OF EXECUTIVE ORDER NO. 9195, FOR MAKING UP FLIGHT REQUIREMENTS WHERE THE REQUIREMENTS PRESCRIBED BY PARAGRAPH 10 (C) OF SAID EXECUTIVE ORDER WERE NOT MET BECAUSE OF COMBAT CONDITIONS, COMMENCED AT THE FIRST OF THE MONTH IN WHICH THE FLIGHT DEFICIENCIES FIRST OCCURRED, SO THAT EXCESS FLIGHTS PERFORMED IN PRECEDING MONTHS WERE NOT FOR CONSIDERATION IN COMPUTING THE FLIGHT REQUIREMENTS OF SAID SIX MONTHS' PERIOD. WHERE THE COMMANDING OFFICER OF A PARTICULAR MILITARY COMMAND HAS CERTIFIED THAT THE FAILURE TO MEET THE FLIGHT REQUIREMENTS OF PARAGRAPH 10 (C) OF EXECUTIVE ORDER NO. 9195 WAS DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS DURING THE THIRD MONTH OF THE PRESCRIBED THREE MONTHS' PERIOD AND THE REQUIRED FLYING HOURS WERE ACCUMULATED IN THE SIX MONTHS' GRACE PERIOD PRESCRIBED BY PARAGRAPH 10 (F) OF SIAD EXECUTIVE ORDER, AVIATION PAY MAY BE CREDITED FOR THE ENTIRE SIX MONTHS, REGARDLESS OF THE REASONS WHY THE FLIGHT REQUIREMENTS WERE NOT MET DURING ANY MONTH OTHER THAN THE THIRD MONTH OF SAID SIX MONTHS' PERIOD. WHERE FLIGHT DEFICIENCIES OF TWO CONSECUTIVE MONTHS WERE NOT MADE UP DURING THE THIRD MONTH UNDER PARAGRAPH 10 (C) OF EXECUTIVE ORDER NO. 9195 DUE TO CAUSES OTHER THAN COMBAT CONDITIONS DURING THE THIRD MONTH, WHICH CONDITIONS, HAD THEY EXISTED, WOULD HAVE ENTITLED THE INDIVIDUAL, UNDER PARAGRAPH 10 (F) OF SAID PARAGRAPH 10 (F) OF SAID EXECUTIVE ORDER, TO SIX CONSECUTIVE CALENDAR MONTHS TO MAKE UP SUCH DEFICIENCIES, AVIATION PAY MAY NOT BE ALLOWED FOR SUCH THREE MONTHS ON THE BASIS OF FLIGHTS OF SAID EXECUTIVE ORDER, AVIATION PAY MAY BE CREDITED FOR THE ENTIRE SIX DURING OTHER THAN THE THIRD MONTH. WHERE FOR THREE CONSECUTIVE MONTHS THERE WAS 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, THERE WAS NO BASIS FOR CREDITING AVIATION PAY FOR THE THIRD MONTH FOR FLIGHTS PERFORMED IN THE FOLLOWING TWO MONTHS, THE NEW THREE CALENDAR MONTHS' PERIOD, WITHIN WHICH FLIGHT REQUIREMENTS COULD HAVE BEEN MADE UP UNDER SAID EXECUTIVE ORDER, HAVING BEGUN WITH THE FIRST MONTH IN WHICH THERE WAS A DEFICIENCY FOLLOWING A SUBSEQUENT MONTH IN WHICH FLIGHT REQUIREMENTS WERE SATISFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 4, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 18, 1945, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED JULY 12, 1945, REQUESTING YOUR DECISION AS TO THE PAYMENT OF AVIATION PAY TO PERSONNEL WHO ARE PREVENTED FROM MEETING FLIGHT REQUIREMENTS BY REASON OF COMBAT CONDITIONS.

PARAGRAPH 10 (F) OF EXECUTIVE ORDER 9195 OF JULY 7, 1942, AS AMENDED, PRESCRIBES THE FLIGHT REGULATIONS WHICH MUST BE MET BY NAVAL PERSONNEL UNDER FLIGHT ORDERS AS A PREREQUISITE TO THE CREDIT OF AVIATION PAY AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 (37 U.S.C. 118, SUPP. IV). SUBPARAGRAPH (F) OF SAID SECTION 10 PROVIDES:

"/F) WHERE THE COMMANDING OFFICER OF ANY OFFICER, WARRANT OFFICER OR ENLISTED MAN WHO HAS BEEN REQUIRED BY ORDERS OF COMPETENT AUTHORITY TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS CERTIFIES THAT DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS, SUCH OFFICER, WARRANT OFFICER OR ENLISTED MAN WAS UNABLE TO PERFORM THE AERIAL FLIGHTS REQUIRED BY SUBPARAGRAPH (C) HEREOF, SUCH OFFICER, WARRANT OFFICER OR ENLISTED MAN MAY COMPLY WITH THE REQUIREMENTS HEREIN PRESCRIBED BY PERFORMING SIXTY OR MORE FLIGHTS TOTALING AT LEAST EIGHTEEN HOURS, OR, IN LIEU THEREOF, BEING IN THE AIR A TOTAL OF AT LEAST TWENTY-FOUR HOURS OVER A PERIOD OF SIX CONSECUTIVE CALENDAR MONTHS.'

IN THE ENCLOSED LETTER FROM THE DISBURSING OFFICER, U.S.S. TULAGI, DATED MAY 30, 1945, AN INTERPRETATION IS REQUESTED OF EXISTING REGULATIONS GOVERNING FLIGHT REQUIREMENTS OF NAVAL PERSONNEL UNDER COMBAT CONDITIONS, WITH PARTICULAR RESPECT TO THE CASES MENTIONED IN HIS LETTER. IN THIS CONNECTION THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS STATES THAT, IN VIEW OF THE FACT THAT THERE HAS BEEN NO DECISION RENDERED BY THE COMPTROLLER GENERAL OF THE UNITED STATES INTERPRETING PARAGRAPH 10 (F) OF SAID EXECUTIVE ORDER 9195, AS AMENDED, AN AUTHORITATIVE RULING IN THIS MATTER SHOULD BE OBTAINED SO THAT SPECIFIC INSTRUCTIONS, AND EXAMPLES SIMILAR TO THOSE CONTAINED IN ARTICLE 2140-2 BUSANDA MEMORANDUM 504, MAY BE ISSUED FOR THE GUIDANCE OF DISBURSING OFFICERS.

YOUR DECISION IS REQUESTED AS TO THE AVIATION PAY WHICH IS AUTHORIZED TO BE CREDITED UNDER PARAGRAPH 10 (F) OF EXECUTIVE ORDER 9195 OF JULY 7, 1942, AS AMENDED, IN THE SEVEN SPECIFIC CASES SET FORTH IN PARAGRAPH 5 OF THE ENCLOSED LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS.

IN ADDITION TO THE SUBPARAGRAPH QUOTED IN YOUR LETTER, THE PERTINENT PROVISIONS OF PARAGRAPH 10 OF THE SAID EXECUTIVE ORDER 9195, JULY 7, 1942, ARE AS FOLLOWS:

FOR PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, OR NATIONAL GUARD (WHEN IN ACTIVE MILITARY SERVICE OF THE UNITED STATES AND WHEN PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED), 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 HAVE 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 20 OR MORE FLIGHTS TOTALING AT

MONTHS, WHEN THE REQUIREMENTS LEAST SIX HOURS, OR IN LIEU

OF SUBPARAGRAPH (A) ABOVE HAVE THEREOF TO BE IN THE AIR A TOTAL

NOT BEEN MET. OF AT LEAST EIGHT HOURS.

(C) DURING THREE CONSECUTIVE 30 OR MORE FLIGHTS TOTALING AT

CALENDAR MONTHS, WHEN THE LEAST NINE HOURS, OR IN LIEU

REQUIREMENTS OF SUBPARAGRAPH THEREOF TO BE IN THE AIR A TOTAL

(B) ABOVE HAVE NOT BEEN MET. OF AT LEAST TWELVE HOURS.

BEFORE CONSIDERING THE SPECIFIC QUESTIONS PRESENTED IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, IT IS DEEMED PERTINENT TO DISCUSS BRIEFLY THE OPERATION OF THE SAID SUBPARAGRAPH (F) IN CONNECTION WITH THE OTHER PROVISIONS CONTAINED IN PARAGRAPH 10, SUPRA. SUBPARAGRAPH (F) PROVIDES THAT WHERE, DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS, PERSONNEL REQUIRED BY ORDERS OF COMPETENT AUTHORITY TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS WERE UNABLE TO PERFORM THE AERIAL FLIGHTS REQUIRED BY SUBPARAGRAPH (C) OF PARAGRAPH 10, SUCH PERSONNEL MAY COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER BY PERFORMING 60 OR MORE FLIGHTS, TOTALING AT LEAST 18 HOURS, OR BE IN THE AIR A TOTAL OF AT LEAST 24 HOURS OVER A PERIOD OF SIX CONSECUTIVE CALENDAR MONTHS.

IT WILL BE NOTED THAT THE PROVISIONS OF SUBPARAGRAPH (C) ARE OPERATIVE ONLY IN THE EVENT THE REQUIREMENTS OF SUBPARAGRAPH (B) HAVE NOT BEEN MET. THAT IS, IT IS ONLY IN THOSE CASES WHERE FLIGHT REQUIREMENTS FOR THE FIRST AND SECOND MONTHS HAVE NOT BEEN MET THAT, UNDER THE PROVISIONS OF SUBPARAGRAPH (C,) AN OPPORTUNITY IS GIVEN--- IN THE THIRD MONTH--- TO MAKE UP FLIGHT DEFICIENCIES OF THE TWO PRECEDING MONTHS, IN ADDITION TO MEETING THE FLIGHT REQUIREMENTS FOR THAT MONTH. HENCE, A FAILURE TO COMPLY WITH THE FLIGHT REQUIREMENTS OF SUBPARAGRAPH (C) CAN OCCUR ONLY IN THE THIRD MONTH OF A THREE MONTHS' PERIOD. CONSEQUENTLY, THE PROVISIONS OF SUBPARAGRAPH (F,) AUTHORIZING AN ADDITIONAL THREE MONTHS' GRACE PERIOD WHERE, DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS, PERSONNEL WERE "UNABLE TO PERFORM THE AERIAL FLIGHTS REQUIRED BY SUBPARAGRAPH (C)," ARE OPERATIVE ONLY WHERE SUCH CONDITIONS EXISTING IN THE THIRD MONTH PREVENTED THE PERFORMANCE OF SUFFICIENT FLIGHTS OR THE ACCUMULATION OF SUFFICIENT FLYING TIME TO MEET THE FLIGHT REQUIREMENTS FOR THE THREE MONTHS' PERIOD ENDING WITH THAT MONTH.

CONSIDERING THE APPLICATION OF SUCH PRINCIPLES TO THE SPECIFIC CASES SET FORTH IN THE LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS- -- IN WHICH IT IS STATED THAT THE FLIGHT TIME IS SHOWN IN HOURS AND THAT, IN EACH CASE, FLIGHT REQUIREMENTS WERE MET MONTH TO MONTH THROUGH THE PRECEDING DECEMBER--- THE CASES WILL BE DISCUSSED IN THE ORDER PRESENTED.

CASE ONE

JAN. FEB. MAR. APRIL MAY JUNE JULY AUG.

5 10 10 106 6 10 12

(A) SHOULD THE COMMANDING OFFICER CERTIFY ON 31 MAY THAT FAILURE TO MEET FLIGHT REQUIREMENTS FOR MARCH WAS DUE TO COMBAT CONDITIONS AND AGAIN CERTIFY ON 30 JUNE THAT FAILURE TO MEET FLIGHT REQUIREMENTS FOR APRIL WAS DUE TO COMBAT CONDITIONS OR SHOULD SUCH CERTIFICATION BE WITHHELD UNTIL THE END OF THE SIXTH MONTH FOLLOWING THE FIRST MONTH IN WHICH THE FAILURE TO MEET FLIGHT REQUIREMENTS OCCURRED.

(B) AT THE END OF JUNE, MAY AVIATION PAY BE CREDITED FOR MARCH, APRIL AND JUNE (PREVIOUSLY CREDITED FOR JANUARY, FEBRUARY AND MAY) ON THE BASIS THAT THE INDIVIDUAL WAS IN THE AIR A TOTAL OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS BEGINNING 1 JANUARY?

(C) IF ANSWER TO (B) IS IN THE NEGATIVE, MAY AVIATION PAY BE CREDITED AT THE END OF AUGUST FOR THE MONTHS OF MARCH, APRIL, JULY AND AUGUST (PREVIOUSLY CREDITED IN MAY AND JUNE) ON THE BASIS THAT THE INDIVIDUAL WAS IN THE AIR A TOTAL OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS BEGINNING 1 MARCH?

WITH RESPECT TO QUESTION (A) IT WILL BE SEEN THAT, SINCE MARCH WAS THE FIRST MONTH IN WHICH A FLIGHT DEFICIENCY OCCURRED, CERTIFICATES BY THE COMMANDING OFFICER THAT MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS EXISTING DURING MARCH AND APRIL PREVENTED THE PERFORMANCE OF SUFFICIENT FLIGHTS FOR THOSE MONTHS WOULD NOT BE REQUIRED; AND IT WOULD BE WITH REGARD TO THE MONTH OF MAY, ONLY- - THE THIRD MONTH OF THE THREE MONTHS' PERIOD BEGINNING MARCH 1--- THAT SUCH A CERTIFICATE WOULD BE REQUIRED IF, IN FACT, MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS DURING THAT MONTH PREVENTED THE MAKING UP, IN FULL, OF THE FLIGHT REQUIREMENTS FOR SUCH THREE MONTHS' PERIOD. WHILE THE PARTICULAR TIME AT WHICH SUCH CERTIFICATE IS TO BE ISSUED BY THE COMMANDING OFFICER IS A MATTER OF ADMINISTRATIVE POLICY, IT WOULD APPEAR THAT ON THE FACTS IN THIS CASE THERE WOULD HAVE BEEN NO OCCASION TO ISSUE SUCH A CERTIFICATE UNTIL THE END OF AUGUST, THE END OF THE SIX MONTHS' PERIOD BEGINNING WITH THE FIRST MONTH IN WHICH THE FAILURE TO MEET THE PRESCRIBED FLIGHT REQUIREMENTS OCCURRED, BECAUSE IT WAS NOT UNTIL THEN THAT THE 24 HOURS' FLYING TIME WAS COMPLETED TO BRING THE CASE WITHIN THE SCOPE OF THE SAID SUBPARAGRAPH (F). QUESTION (A) IS ANSWERED ACCORDINGLY.

IT IS SETTLED, UNDER THE PROVISIONS OF EXECUTIVE ORDER 9195, AS AMENDED, AND PRIOR EXECUTIVE ORDERS PRESCRIBING THE FLIGHT REQUIREMENTS WHICH MUST BE MET IN ORDER TO ENTITLE PERSONNEL TO AVIATION PAY, THAT FLIGHTS PERFORMED IN ONE MONTH IN EXCESS OF THE FLIGHT REQUIREMENTS FOR THAT MONTH MAY NOT BE APPLIED TO FLIGHT DEFICIENCIES OCCURRING IN SUBSEQUENT MONTHS. NO COGENT REASON APPEARS WHY A DIFFERENT VIEW SHOULD BE TAKEN OF THE LANGUAGE EMPLOYED IN SUBPARAGRAPH (F) AND, AS SUCH SUBPARAGRAPH APPLIES ONLY WHERE, DUE TO THE STIPULATED CONDITIONS, THE INDIVIDUAL WAS UNABLE TO PERFORM THE FLIGHTS REQUIRED BY SUBPARAGRAPH (C), IT MUST BE HELD THAT THE SIX MONTHS' GRACE PERIOD PROVIDED THEREIN BEGINS CONCURRENTLY WITH THE 3 MONTHS' PERIOD UNDER SUBPARAGRAPH (C), THAT IS, AT THE FIRST OF THE MONTH IN WHICH THE FAILURE TO MEET THE PRESCRIBED FLIGHT REQUIREMENTS OCCURS. IN THIS CASE, THAT WAS THE MONTH OF MARCH, AND COUNTING FROM THE FIRST OF MARCH, THE 24 HOURS REQUIRED BY SUBPARAGRAPH (F) TO AUTHORIZE FLYING PAY FOR THE DEFICIENT MONTHS OF MARCH HAD NOT BEEN PERFORMED BY THE END OF JUNE. ACCORDINGLY, QUESTION (B) IS ANSWERED IN THE NEGATIVE.

ASSUMING THAT THE COMMANDING OFFICER HAS CERTIFIED THAT THE FAILURE TO MEET THE FLIGHT REQUIREMENTS OF SUBPARAGRAPH (C) DURING THE MONTH OF MAY-- - THAT IS, THE FAILURE IN MAY TO MAKE UP THE DEFICIENCY FOR MARCH AND APRIL--- WAS DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS--- AND SINCE THE NUMBER OF HOURS OF FLYING REQUIRED BY SUBPARAGRAPH (F) WERE ACCUMULATED IN THE SIX MONTHS' PERIOD BEGINNING MARCH 1 AND ENDING AUGUST 31--- QUESTION (C) IS ANSWERED IN THE AFFIRMATIVE.

CASE TWO

JAN. FEB. MAR. APR. MAY JUN. JUL. AUG. SEP.

24 10 10 10 10 10 24 3 8

THE INDIVIDUAL CONCERNED WAS IN THE HOSPITAL NOT THE RESULT OF AN AVIATION ACCIDENT FROM 29 JANUARY TO 10 MARCH. THE COMMANDING OFFICER, ON 30 APRIL, CERTIFIES THAT FAILURE TO MEET FLIGHT REQUIREMENTS (SUBPAR. (C) OF REFERENCE (C) ( FOR FEBRUARY, MARCH, AND APRIL WAS DUE TO COMBAT CONDITIONS, SIMILAR CERTIFICATE WAS ISSUED ON 30 JUNE THAT FAILURE TO MEET FLIGHT REQUIREMENTS DURING APRIL, MAY AND JUNE (SUBPAR. (C) OF REFERENCE (C) ( WAS LIKEWISE DUE TO COMBAT CONDITIONS. ON THE BASIS OF SUCH CERTIFICATES, IS THE DISBURSING OFFICER AUTHORIZED, ON 31 JULY TO CREDIT AVIATION PAY FOR THE MONTHS OF FEBRUARY THROUGH JULY ON THE BASIS THAT THE INDIVIDUAL WAS IN THE AIR A TOTAL OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS COMMENCING 1 FEBRUARY?

SINCE THE COMMANDING OFFICER HAS CERTIFIED THAT THE FAILURE TO MEET THE FLIGHT REQUIREMENTS OF SUBPARAGRAPH (C) DURING APRIL--- THE THIRD MONTH OF THE THREE MONTHS' PERIOD BEGINNING FEBRUARY 1, IN WHICH THE FLIGHT DEFICIENCY FIRST OCCURRED--- WAS DUE TO COMBAT CONDITIONS AND, SINCE THE INDIVIDUAL CONCERNED COMPLIED WITH THE MINIMUM HOURS OF FLYING REQUIRED BY SUBPARAGRAPH (F) FOR THE SIX MONTHS' PERIOD FOLLOWING FEBRUARY 1, HE WOULD BE ENTITLED TO FLYING PAY FOR THE ENTIRE SIX MONTHS' PERIOD. HENCE, THE QUESTION STATED IS ANSWERED IN THE AFFIRMATIVE, IT BEING ASSUMED IN THIS AND THE FOLLOWING CASES THAT WHERE IT IS STATED THAT THE COMMANDING OFFICER CERTIFIED THAT THE FAILURE TO MEET FLIGHT REQUIREMENTS WAS DUE TO "COMBAT CONDITIONS" IT IS MEANT THAT THE COMMANDING OFFICER CERTIFIED THAT THE FAILURE WAS DUE TO "MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS," AS STIPULATED IN THE SAID PARAGRAPH 10 (F) OF THE EXECUTIVE ORDER.

CASE THREE JAN. FEB. MAR. APR. MAY JUN. JUL.

6 2 2 10 8 8 4

THE INDIVIDUAL CONCERNED WAS DETACHED ON 14 MARCH AND FROM THAT DATE UNTIL 1 MAY WAS IN A TRAVEL AND INTERIM LEAVE STATUS WHILE ENROUTE TO NEW DUTY STATION IN THE UNITED STATES. THE COMMANDING OFFICER OF HIS PRIOR PERMANENT DUTY STATION CERTIFIED THAT FAILURE TO MEET FLIGHT REQUIREMENTS FOR THE PERIOD 1 FEBRUARY TO 14 MARCH WAS DUE TO COMBAT CONDITIONS. THE BASIS OF SUCH CERTIFICATE, MAY AVIATION PAY BE CREDITED ON 31 JULY FOR THE MONTH OF JULY, AND, IN ADDITION, (1) FOR THE PERIOD 1 FEBRUARY TO 30 MARCH, OR (2) 1 FEBRUARY TO 14 MARCH (PREVIOUSLY CREDITED FOR APRIL, MAY AND JUNE), ON THE BASIS THAT THE INDIVIDUAL WAS IN THE AIR A TOTAL OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS COMMENCING 1 FEBRUARY?

THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPH (C) OF PARAGRAPH 10 DURING THE MONTH OF APRIL--- THE THIRD MONTH OF THE PERIOD BEGINNING FEBRUARY 1--- HAVING BEEN DUE TO CAUSES OTHER THAN COMBAT CONDITIONS, THAT IS, SUCH FAILURE HAVING BEEN THE DIRECT RESULT OF THE INDIVIDUAL CONCERNED BEING IN A TRAVEL AND LEAVE STATUS FOR THE ENTIRE MONTH OF APRIL, THIS CASE WOULD NOT FALL WITHIN THE PURVIEW OF SUBPARAGRAPH (F) AND AS THE FLIGHT REQUIREMENTS FOR FEBRUARY AND MARCH WERE NOT MET DURING THOSE MONTHS AND WERE NOT MADE UP IN APRIL, AVIATION PAY FOR THOSE TWO MONTHS MAY NOT BE ALLOWED. THE FACT THAT THE INDIVIDUAL WAS DETACHED MARCH 14 FOR TRAVEL AND LEAVE PURPOSES--- HIS ASSIGNMENT TO FLYING DUTY NOT HAVING BEEN TERMINATED--- WOULD ENTITLE HIM TO PRORATED AVIATION PAY FOR THE TWO HOURS' FLYING TIME IN MARCH. FURTHERMORE, THE BASIS FOR THE STATEMENT THAT THE INDIVIDUAL WAS "PREVIOUSLY CREDITED FOR APRIL" IS NOT UNDERSTOOD. IT IS SETTLED THAT THE THREE MONTHS' PERIOD BEGINS WITH THE MONTH IN WHICH THE FLIGHT DEFICIENCY FIRST OCCURS--- IN THIS CASE FEBRUARY--- AND THAT THE THREE MONTHS' PERIOD IS AN ENTIRETY, THAT IS, IF THE TOTAL FLIGHTS FOR THE THREE MONTHS' PERIOD HAVE NOT BEEN MADE BY THE END OF THE THIRD MONTH, THE OPPORTUNITY TO MAKE UP THE DEFICIENCY FOR EACH OF THE MONTHS INVOLVED CEASES AND A NEW THREE MONTHS' PERIOD IS NOT BEGUN UNTIL THE BEGINNING OF THE FIRST MONTH IN WHICH THERE IS A DEFICIENCY FOLLOWING THE MONTH IN WHICH FLIGHT REQUIREMENTS AGAIN ARE SATISFIED. 4 COMP. GEN. 975; 9 ID. 487. HENCE, HAVING PERFORMED NO FLIGHTS IN APRIL--- THE THIRD MONTH OF THE THREE MONTHS' PERIOD--- THERE APPEARS NO PROPER BASIS FOR A CREDIT OF AVIATION PAY FOR THAT MONTH.

CASE FOUR

JAN. FEB. MAR. APR. MAY JUN. JUL. AUG. SEP.

12 3 3 1 10 10 18 9 4

THE OFFICER IN QUESTION WAS INJURED IN AN AIRPLANE CRASH ON 15 APRIL AND WAS IN THE HOSPITAL FROM THAT DATE UNTIL 18 JULY. THE COMMANDING OFFICER CERTIFIED ON 30 APRIL THAT FAILURE TO MEET THE FLIGHT REQUIREMENTS FOR THE PERIOD 1 FEBRUARY TO 30 MARCH WAS DUE TO COMBAT CONDITIONS:

(A) IS THE OFFICER ENTITLED TO CURRENT CREDIT OF AVIATION PAY FROM 1 APRIL TO 14 JULY UNDER PARAGRAPH 10 OF REFERENCE (C) AND ARTICLE 2140-2 (E) (5) (C/?

(B) AND AS THE COMMANDING OFFICER CERTIFIED THAT FAILURE TO MEET FLIGHT REQUIREMENTS FOR FEBRUARY AND MARCH WAS DUE TO COMBAT CONDITIONS, IS THE OFFICER ENTITLED AT THE END OF JULY TO AVIATION PAY FOR THE MONTHS OF FEBRUARY, MARCH, AND JULY ON THE BASIS THAT HE WAS IN THE AIR IN EXCESS OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS COMMENCING 1 FEBRUARY?

WHERE AN OFFICER HAS NOT QUALIFIED FOR AVIATION PAY FOR THE MONTH IN WHICH HE WAS INJURED, THE THREE MONTHS' PERIOD DURING WHICH HE IS EXCUSED FROM PERFORMING FLIGHTS INCLUDES THE MONTH IN WHICH HE WAS INJURED. SEE 23 COMP. GEN. 449. HENCE, IN THE EXAMPLE GIVEN, THE OFFICER WOULD BE EXCUSED FROM PERFORMING FLIGHTS FOR APRIL, MAY, AND JUNE, AND, HAVING SUFFICIENT HOURS IN THE AIR IN JULY TO MEET THE REQUIREMENTS OF THAT MONTH, HE WOULD BE ENTITLED TO AVIATION PAY FROM APRIL 1 THROUGH JULY 31. QUESTION (A) IS ANSWERED ACCORDINGLY.

AS DISCUSSED ABOVE, SUBPARAGRAPH (F) SPECIFICALLY PROVIDES, INTER ALIA, THAT THE PROVISIONS THEREOF SHALL BE EFFECTIVE WHEN THE COMMANDING OFFICER CERTIFIES THAT "DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITION" THE PERSONNEL CONCERNED WERE UNABLE TO MEET THE REQUIREMENTS OF SUBPARAGRAPH (C), THAT IS, THAT THEY WERE UNABLE TO MAKE UP THE DEFICIENCIES OF THE TWO PRECEDING MONTHS IN THE THIRD MONTH OF THE PERIOD. SINCE, IN THE INSTANT CASE, THE COMMANDING OFFICER HAS NOT CERTIFIED THAT THE FAILURE IN APRIL, THE THIRD MONTH OF THE PERIOD, TO MAKE UP THE FLIGHTS FOR FEBRUARY AND MARCH WAS DUE TO MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS, BUT ONLY THAT THE FAILURE TO MAKE THE FLIGHTS IN FEBRUARY AND MARCH WAS DUE TO SUCH CONDITIONS, SUBPARAGRAPH (F) DOES NOT APPLY AND THE OFFICER WOULD NOT BE ENTITLED TO FLYING PAY FOR FEBRUARY AND MARCH BY REASON OF FLIGHTS PERFORMED IN JULY. IT FOLLOWS THAT QUESTION (B) MUST BE ANSWERED IN THE NEGATIVE.

CASE FIVE

JAN. FEB. MAR. APR.MAY JUN. JUL AUG. SEP.

0 0 0 1 0 0 23 0 9

THE OFFICER IN QUESTION FAILED TO RETURN FROM HIS MISSION ON 15 APRIL AND WAS CARRIED IN A MISSING STATUS FROM THAT DATE UNTIL 22 JUNE WHEN HE RETURNED TO NAVAL JURISDICTION. HIS ACCOUNTS WERE CARRIED ON THE MISSING PERSONS ROLLS AND HE WAS CREDITED WITH AVIATION PAY FOR THE MONTHS OF APRIL AND MAY. THE COMMANDING OFFICER CERTIFIES THAT FAILURE TO MEET FLIGHT REQUIREMENTS FOR FEBRUARY AND MARCH WAS DUE TO COMBAT CONDITIONS. ON THE BASIS OF SUCH CERTIFICATE IS THE OFFICER ENTITLED TO CREDIT OF AVIATION PAY FOR THE MONTHS OF FEBRUARY AND MARCH, HE HAVING MET FLIGHT REQUIREMENTS PRESCRIBED BY SUBPAR (F) OF REFERENCE (C) BY BEING IN THE AIR A TOTAL OF TWENTY-FOUR HOURS DURING THE SIX CONSECUTIVE CALENDAR MONTHS COMMENCING 1 FEBRUARY?

ASIDE FROM THE FACT THAT THE OFFICER'S INABILITY TO PERFORM FLIGHTS AFTER APRIL 15, WAS DUE TO HIS MISSING STATUS RATHER THAN TO HOSPITALIZATION FOR AN INJURY, THE PERTINENT FACTS OF THIS CASE ARE ANALOGOUS TO THOSE CONSIDERED IN CASE 4 AND, FOR THE REASONS THEREIN STATED, THE QUESTION IS ANSWERED IN THE NEGATIVE.

CASE SIX

JAN. FEB. MAR. APR. MAY JUN. JUL.

8 2 10 10 4 20 4

THIS OFFICER WAS ON DUTY INVOLVING FLYING ON BOARD AN ESCORT CARRIER OPERATING UNDER COMBAT CONDITIONS COMMENCING 1 JANUARY. THE VESSEL WAS SUNK ON 18 FEBRUARY, THE OFFICER WAS PICKED UP BY ANOTHER VESSEL, TAKEN TO AN AFRICAN PORT, REACHED UNITED STATES ON 1 APRIL, WAS GRANTED ONE MONTHS REHABILITATION LEAVE AND REPORTED TO NAVAL AIR STATION, PENSACOLA FOR DUTY INVOLVING FLYING IN 1 MAY:

(A) ON THE BASIS OF THE FLIGHTS PERFORMED DURING MAY AND JUNE, AVIATION PAY WAS CREDITED AT THE END OF EACH OF THOSE MONTHS. THE COMMANDING OFFICER OF THE VESSEL CONCERNED CERTIFIED ON 30 APRIL THAT THE EXISTENCE OF COMBAT CONDITIONS DURING FEBRUARY, THE RESULTANT CASUALTY TO THE VESSEL, TRAVEL TO THE UNITED STATES AFTER THE CASUALTY, AND THE GRANTING OF LEAVE ESSENTIAL TO THE REHABILITATION OF THIS OFFICER, PREVENTED HIM FROM MEETING FLIGHT REQUIREMENTS PRESCRIBED BY SUBPAR (C) OF REFERENCE (C) DURING THE MONTHS OF FEBRUARY, MARCH AND APRIL. ON THE BASIS OF SUCH CERTIFICATE, IS THE OFFICER ENTITLED TO AVIATION PAY ON 31 JULY UNDER SUBPAR (F) OF REFERENCE (C) FOR THE MONTHS OF FEBRUARY, MARCH, APRIL AND JULY BY REASON OF HAVING BEEN IN THE AIR A TOTAL OF THIRTY HOURS DURING THE PERIOD 1 FEBRUARY TO 31 JULY?

FROM THE FACTS STATED, IT IS CLEAR THAT THE OFFICER'S INABILITY TO MEET THE FLIGHT REQUIREMENTS OF SUBPARAGRAPH (C,) THAT IS, TO MAKE UP THE DEFICIENCY FOR FEBRUARY AND MARCH DURING THE MONTH OF APRIL--- THE THIRD MONTH OF THE THREE MONTHS' PERIOD--- WAS NOT DUE TO "MILITARY OPERATIONS OF THE PARTICULAR COMMAND UNDER COMBAT CONDITIONS" DURING THE LATTER MONTH, AS CONTEMPLATED BY SUBPARAGRAPH (F,) AND NO CERTIFICATE TO THAT EFFECT HAS BEEN ISSUED BY HIS COMMANDING OFFICER. HENCE, SUBPARAGRAPH (F) DOES NOT APPLY AND THE OFFICER WOULD NOT BE ENTITLED TO AVIATION PAY FOR FEBRUARY, MARCH, OR APRIL BY REASON OF FLIGHTS SUBSEQUENTLY PERFORMED, BUT, OF COURSE, HE WOULD BE ENTITLED TO AVIATION PAY FOR JULY, HAVING MET THE REQUIREMENTS FOR THAT MONTH DURING THAT MONTH. COMPARE ANSWERS TO CASES 4 AND 5.

CASE SEVEN

JAN. FEB. MAR. APR. MAY JUN. JUL

1 10 2 8 6 8 2

THIS OFFICER WAS ON DUTY INVOLVING FLYING AT A NAVAL AIR STATION IN THE UNITED STATES UNTIL 6 JANUARY WHEN HE WAS DETACHED THEREFROM GRANTED TEN DAYS LEAVE WITH ORDERS TO REPORT TO AN AIR GROUP IN CHINA, AT WHICH LATTER PLACE HE REPORTED ON 22 FEBRUARY. COMBAT CONDITIONS EXISTED FROM 22 FEBRUARY, IN VIEW OF WHICH THE COMMANDING OFFICER CERTIFIED THAT THE OFFICER WAS PREVENTED FROM MEETING THE FLIGHT REQUIREMENTS PRESCRIBED BY SUBPAR (C) OF REFERENCE (C) FOR THE THREE MONTH PERIOD ENDING 31 MARCH. FLIGHT REQUIREMENTS WERE MET DURING THE MONTHS OF APRIL AND MAY AND AVIATION PAY WAS CREDITED AT THE END OF EACH OF THOSE MONTHS. IS HE ENTITLED TO AVIATION PAY UNDER SUBPAR (F) OF REFERENCE (C) ON 30 JUNE FOR THE MONTHS OF JANUARY, FEBRUARY, MARCH AND JUNE, HAVING BEEN IN THE AIR A TOTAL OF TWENTY-FIVE HOURS DURING THE PERIOD 1 JANUARY TO 30 JUNE?

THE COMMANDING OFFICER HAVING CERTIFIED THAT COMBAT CONDITIONS EXISTING FROM FEBRUARY 22 THROUGH MARCH 31--- THE END OF THE THREE MONTHS' PERIOD COMMENCING JANUARY 1--- PREVENTED COMPLIANCE BY THE OFFICER WITH THE REQUIREMENTS OF SUBPARAGRAPH (C), AND SUFFICIENT FLYING TIME HAVING BEEN ACCUMULATED IN THE SUCCEEDING THREE MONTHS TO AGGREGATE A TOTAL OF AT LEAST 24 HOURS DURING THE SIX MONTHS' PERIOD BEGINNING JANUARY 1, THE REQUIREMENTS OF SUBPARAGRAPH (F) HAVE BEEN MET AND THE OFFICER WOULD BE ENTITLED TO AVIATION PAY FOR THE PERIOD JANUARY 1 THROUGH JUNE 30, EXCLUSIVE OF THOSE MONTHS FOR WHICH SUCH PAY PREVIOUSLY HAD BEEN CREDITED.