B-60709, JAN 31, 1947

B-60709, JAN 31, 1947

PRECIS-UNAVAILABLE

MR. WILLIAM F. AYCOCK, JR.:

C/O THE BIRMINGHAM NEWS

BIRMINGHAM 2, ALABAMA

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1946, WITH ENCLOSURES, REQUESTING A REVIEW OF THE SETTLEMENT DATED APRIL 2, 1946, ISSUED BY THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, WHICH DISALLOWED YOUR CLAIM FOR FLYING PAY FOR THE PERIOD FROM OCTOBER 12, 1943, TO MAY 23, 1945, IN THE AMOUNT OF $2,063.61, FOR THE REASON THAT YOU HAD NOT FURNISHED ORDERS ISSUED BY COMPETENT AUTHORITY PLACING YOU IN A FLYING STATUS. THERE HAS BEEN RECEIVED, ALSO, YOUR LETTER OF JANUARY 8, 1947, REQUESTING THAT YOU BE ADVISED OF THE CURRENT STATUS OF YOUR CLAIM.

YOU HAVE ENCLOSED WITH YOUR LETTER OF JULY 3, 1946, AN UNDATED LETTER (APPARENTLY WRITTEN AFTER THE DATE OF THE SETTLEMENT REFERRED TO ABOVE), ADDRESSED TO YOU BY BRIGADIER GENERAL F. H. SMITH, JR., UNITED STATES ARMY, BOLLING FIELD, WASHINGTON, D.C. AS FOLLOWS:

"1. ON 3 OCTOBER 1943 YOU WERE ORDERED TO THE FIRST AIR TASK FORCE, FIFTH ARMY AIR FORCE, BY THE COM. 7TH FLEET FOR 'DUTIES IN CONNECTION WITH AIR COMBAT INTELLIGENCE'. THIS CONFIRMS MY VERBAL ORDERS ISSUED UPON YOUR REPORTING THAT YOU WERE TO CARRY OUT DUTIES OF AIR COMBAT INTELLIGENCE INVOLVING FLYING.

"2. THAT YOU WERE BETTER QUALIFIED TO CARRY OUT YOUR DUTIES BY VIRTUE OF THE FIRST HAND INFORMATION AND EXPERIENCE GAINED FROM OPERATIONAL FLIGHTS IS A MATTER OF RECORD. YOUR BEING IN A FLIGHT STATUS ENABLED YOU TO MORE ACCURATELY REPORT ON THE DAMAGE INFLICTED BY THE ARMY AIR FORCE ON THEIR VARIOUS STRIKES AGAINST ENEMY SHIPPING AND HARBOR INSTALLATIONS. LIKEWISE, IT ENABLED YOU TO MORE EFFECTIVELY CARRY OUT YOUR OTHER DUTIES WHICH INCLUDED THE PLOTTING OF ALL ENEMY SHIP SIGHTINGS AND THE CLASSIFICATION AND IDENTIFICATION OF BOTH FRIENDLY AND ENEMY SHIPS.

"3. BEING IN A FLIGHT STATUS LIKEWISE HELPED YOU MATERIALLY IN COORDINATING AIR SEA RESCUE WORK BETWEEN ARMY AND NAVY UNITS AND THE SETTING UP OF ARMY FIGHTER COVER FOR NAVY CONVOYS.

"4. IF FURTHER VERIFICATION OF YOUR FLIGHT STATUS IS REQUIRED, WILL YOU PLEASE SO ADVISE."

FROM COPIES OF ORDERS WHICH YOU HAVE SUBMITTED IN SUPPORT OF YOUR CLAIM, IT APPEARS THAT YOU WERE ON ACTIVE DUTY AS AN OFFICER OF THE UNITED STATES NAVAL RESERVE AND THAT YOU WERE A STUDENT AT THE NAVAL AIR COMBAT INFORMATION SCHOOL, QUONSET POINT, RHODE ISLAND, WHEN YOU RECEIVED ORDERS FROM THE CHIEF OF NAVAL PERSONNEL, DATED APRIL 21, 1943, DIRECTING YOU TO PROCEED AT A STATED TIME (VIA TWELFTH NAVAL DISTRICT) TO "THE PORT IN WHICH THE COMMANDER, SOUTHWEST PACIFIC FORCE MAY BE, AND UPON ARRIVAL REPORT TO" SUCH COMMANDER "FOR DUTY IN CONNECTION WITH AIR COMBAT INFORMATION," AND THAT YOU RECEIVED ORDERS DATED OCTOBER 3, 1943, ADDRESSED TO YOU BY THE COMMANDER, SEVENTH FLEET, AS FOLLOWS:

"1. UPON THE RECEIPT OF THESE ORDERS, YOU WILL PROCEED TO THE PLACE WHERE FIRST AIR TASK FORCE, FIFTH AIR FORCE, U.S. ARMY MAY BE AND UPON ARRIVAL REPORT TO THE COMMANDING OFFICER OF THAT TASK FORCE FOR TEMPORARY DUTY IN AIR INTELLIGENCE.

"2. UPON COMPLETION OF THIS TEMPORARY DUTY, YOU WILL RETURN AND RESUME YOUR REGULAR DUTIES.

"3. TRAVEL BY ANY MEANS INCLUDING GOVERNMENT OR COMMERCIAL AIR TO ACCOMPLISH THE FOREGOING DUTIES IS DIRECTED.

"4. PER DIEM ALLOWANCES ARE AUTHORIZED IN ACCORDANCE WITH THE SECRETARY OF THE NAVY'S LETTER OF 30 APRIL 1943 WHILE TRAVELING IN OBEDIENCE TO THOSE ORDERS."

IT FURTHER APPEARS, FROM YOUR LETTERS AND COPIES OF COMMUNICATIONS AND ORDERS WHICH YOU HAVE SUBMITTED, THAT, PURSUANT TO THE ABOVE-QUOTED ORDERS, YOU REPORTED TO HEADQUARTERS, FIRST AIR TASK FORCE, FIFTH ARMY AIR FORCE, ON OCTOBER 11, 1943, FOR TEMPORARY DUTY; THAT YOU SERVED ON TEMPORARY DUTY WITH SUCH TASK FORCE AND UNDER SUBSEQUENT ORDERS OF THE COMMANDER, SEVENTH FLEET WITH THE 308TH BOMBARDMENT WING (H) OF THE FIFTH ARMY AIR FORCE, AS "AIR COMBAT INTELLIGENCE OFFICER: UNTIL SUCH TEMPORARY DUTY WAS TERMINATED BY ORDERS OF THE COMMANDER, SEVENTH FLEET, WHICH ORDERS DIRECTED YOU TO REPORT TO THE COMMANDING GENERAL, THIRTEENTH ARMY AIR FORCE, FOR DUTY AS "NAVAL LIAISON OFFICER FOR PERFORMANCE OF INTELLIGENCE DUTIES"; THAT YOU SERVED AS "NAVAL LIAISON OFFICER" WITH THE THIRTEENTH ARMY AIR FORCE FROM APRIL 6, 1944, UNTIL THE EARLY PART OF 1945; THAT WHILE SERVING WITH THE SAID ARMY AIR FORCES ORGANIZATIONS YOU PARTICIPATED IN A TOTAL OF MORE THAN 200 HOURS OF OPERATIONAL FLIGHT DURING THE PERIODS SEPTEMBER 1, 1943, TO JANUARY 23, 1944, AND APRIL 18, 1944, TO OCTOBER 29, 1944, AND THAT ALL ARMY ORDERS ISSUED TO YOU WHILE YOU SERVED WITH THE ARMY AIR FORCES WERE OF A VERBAL NATURE.

THE FIRST PARAGRAPH OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 368; 37 U.S.C. SUPP. V, 118), IS, IN PERTINENT PART, AS FOLLOWS:

"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 PER CENTUM OF THEIR PAY WHEN 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."

PARAGRAPHS 8 AND 14 OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, PROVIDE AS FOLLOWS:

"8. EACH OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN OTHER THAN THOSE SPECIFIED IN PARAGRAPHS 2, 3, 4, 5, 6, AND 7, MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS; ORDERS FOR SUCH REQUIREMENT SHALL BE ISSUED BY THE COMMANDING GENERAL OF THE ARMY AIR FORCES OR BY SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR PERSONNEL COMMISSIONED IN THE ARMY AIR CORPS OR ON DUTY WITH THE ARMY AIR FORCES, THE SECRETARY OF WAR OR SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR OTHER BRANCHES OF THE ARMY, THE CHIEF OF NAVAL PERSONNEL FOR THE NAVY, THE COMMANDANT OF THE MARINE CORPS FOR THE MARINE CORPS, OR BY THE COMMANDANT OF THE COAST GUARD FOR THE COAST GUARD, AND ORDERS FOR SUCH REQUIREMENT SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH ASSIGNMENT, EXCEPT AS HEREINAFTER PROVIDED IN PARAGRAPH 12.

"14. COMPLIANCE WITH THE FOREGOING REQUIREMENTS CONSTITUTES PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS WITHIN THE MEANING OF THE ACT APPROVED JULY 2, 1926, (44 STAT. 780), AND THE ACT APPROVED JUNE 16, 1942 (PUBLIC LAW 607, 77TH CONGRESS, 2ND SESSION), AND NO FLIGHT PAY SHALL ACCRUE TO ANY PERSON DURING ANY PERIOD IN WHICH THE PROVISIONS OF THIS ORDER ARE NOT COMPLIED WITH: PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL EFFECT THE FLYING PAY OF NON-FLYING OFFICERS WHO PERFORM THE NUMBER OF AERIAL FLIGHTS REQUIRED BY ANY APPLICABLE ACT OF CONGRESS."

SECTION 13A OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 10 U.S.C. SEC. 291C, 291E, RELATING TO THE ARMY AIR FORCES, DEFINES A "FLYING OFFICER" AS "ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS A PILOT OF SERVICE TYPES OF AIRCRAFT OR ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS AN AIRCRAFT OBSERVER AND, IN TIME OF WAR, ONE WHO HAS RECEIVED AN AERONAUTICAL RATING AS OBSERVER OR AS ANY OTHER MEMBER OF A COMBAT CREW UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE." SUCH STATUTORY DEFINITION OF FLYING OFFICERS OF THE ARMY HAS BEEN OBSERVED AND APPLIED IN DETERMINING WHO ARE FLYING OFFICERS AND WHO ARE NONFLYING OFFICERS OF THE NAVY (SEE 24 COMP.GEN. 501; ID. 636; 25 ID. 648; ARTICLE 2140-2, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL), WITHIN THE MEANING OF PROVISIONS WHICH HAVE APPEARED IN THE ANNUAL NAVAL APPROPRIATION ACTS FOR SOME YEARS, SUBSTANTIALLY AS FOLLOWS (QUOTING FROM NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1947, ACT OF JULY 8, 1946, 60 STAT. 486):

"PAY AND ALLOWANCES: OFFICERS, ACTIVE DUTY, NO PART OF WHICH SUM SHALL BE AVAILABLE FOR INCREASED PAY FOR AERIAL FLIGHTS, BY *** NONFLYING OFFICERS OR OBSERVERS AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY, WHICH SHALL BE THE LEGAL MAXIMUM RATES AS TO SUCH NONFLYING OFFICERS OR OBSERVERS ***."

THE COMPARABLE PROVISIONS IN THE MILITARY APPROPRIATION ACTS HAVE BEEN SUBSTANTIALLY AS FOLLOWS (QUOTING FROM THE MILITARY APPROPRIATION ACT FOR THE FISCAL YEAR 1947, ACT OF JULY 16, 1946, 60 STAT. 543):

"*** PROVIDED, THAT THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL NOT BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS AT A RATE IN EXCESS OF $720 PER ANNUM, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH OFFICERS, AND SUCH NONFLYING OFFICERS SHALL BE ENTITLED TO SUCH RATE OF INCREASE BY PERFORMING THREE OR MORE FLIGHTS WITHIN EACH NINETY-DAY PERIOD, PURSUANT TO ORDERS OF COMPETENT AUTHORITY WITHOUT REGARD TO THE DURATION OF SUCH FLIGHT OR FLIGHTS ***."

THE COPIES OF THE SEVERAL WRITTEN ORDERS ISSUED TO YOU BY THE CHIEF OF NAVAL PERSONNEL, AND OTHER NAVAL AUTHORITY, WHICH YOU HAVE SUBMITTED, DO NOT CONTAIN ANY INDICATION THAT YOU HAD AN AERONAUTICAL RATING OR THAT YOU WERE CONSIDERED TO BE A FLYING OFFICER AND DO NOT PURPORT TO REQUIRE YOU TO PARTICIPATE IN AERIAL FLIGHTS OR TO PLACE YOU IN A FLYING STATUS, AND YOU HAVE SUBMITTED NO WRITTEN EVIDENCE PURPORTING TO SHOW THAT YOU HAD ORDERS PLACING YOU IN A FLYING STATUS, EXCEPT THE LETTER OF BRIGADIER GENERAL SMITH, QUOTED ABOVE.

IT IS QUESTIONABLE WHETHER IT WAS WITHIN THE JURISDICTION OF ANY OFFICER OF THE WAR DEPARTMENT OR THE ARMY TO INCREASE THE OBLIGATION AGAINST NAVAL APPROPRIATIONS BY PLACING YOU, A NAVAL OFFICER, IN A FLYING STATUS WHILE YOU WERE ON DUTY WITH THE ARMY AIR FORCES, BUT EVEN IF SUCH QUESTION COULD BE RESOLVED IN YOUR FAVOR IT DOES NOT APPEAR THAT, IN FACT, YOU RECEIVED ANY PROPER ORDERS FROM "COMPETENT AUTHORITY" OF THE ARMY PURPORTING TO PLACE YOU IN A FLYING STATUS, SINCE IT IS UNDERSTOOD THAT BRIGADIER GENERAL SMITH WAS THE COMMANDING OFFICER OF THE FIRST AIR TASK FORCE-- A SUBORDINATE UNIT OF THE FIFTH AIR FORCE-- AT THE TIME YOU REPORTED FOR DUTY WITH THE SAID TASK FORCE, AND THE WAR DEPARTMENT HAS ADVISED THIS OFFICE THAT, WHILE THE COMMANDING GENERAL OF THE ARMY AIR FORCES ISSUED DELEGATIONS OF AUTHORITY TO THE COMMANDING GENERALS OF THE FIFTH AND THIRTEENTH AIR FORCES TO PLACE NONFLYING OFFICERS ON FLYING STATUS (BY COMMUNICATIONS DATED JUNE 23, 1943), SUCH AUTHORITY WAS NOT DELEGATED TO COMMANDERS OF SUBORDINATE UNITS OF THE SAID FIFTH AND THIRTEENTH AIR FORCES. SEE 1 COMP.GEN. 67. MOREOVER, THE ARMY REGULATIONS (PARAGRAPH 13, AR 310 50) PROVIDE THAT "VERBAL ORDERS OR INSTRUCTIONS INVOLVING DIRECTLY OR INDIRECTLY THE EXPENDITURE OF PUBLIC MONEY *** WILL BE REDUCED TO WRITING." UNDER SUCH PROVISION, A WRITTEN STATEMENT THAT YOU WERE GIVEN VERBAL ORDERS "TO CARRY OUT DUTIES OF AIR COMBAT INTELLIGENCE INVOLVING FLYING", THAT STATEMENT BEING ISSUED AFTER A DELAY OF MORE THAN TWO YEARS, COULD NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLING YOU THE FLYING PAY CLAIMED EVEN IF YOU HAD RECEIVED SUCH VERBAL ORDERS FROM AN OFFICER AUTHORIZED TO ISSUE FLYING ORDERS, AND THERE WERE NO OTHER LEGAL OBJECTIONS TO THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE ACTION OF THE CLAIMS DIVISION IN DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.