B-70121, DEC 9, 1946

B-70121, DEC 9, 1946

HEADNOTES-UNAVAILBLE PRECIS-UNAVAILBLE

MAJOR M. S. LIPSKER, AIR CORPS, FINANCE OFFICER:

THERE HAS BEEN RECEIVED, BY INDORSEMENT OF THE CHIEF OF FINANCE, YOUR LETTER OF SEPTEMBER 16, 1947, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF FIRST LIEUTENANT THOMAS A. JOHNSON, AIR CORPS (RESERVE) FOR INCREASED PAY FOR FLYING FOR TWO DAYS, AUGUST 31 AND SEPTEMBER 14, 1947. IT IS STATED THAT THESE DATES REPRESENT TRAVEL TIME INVOLVED IN REPORTING FOR DUTY AND RETURNING TO HOME PURSUANT TO ORDERS AUTHORIZING A 15-DAY TOUR OF ACTIVE DUTY.

IT APPEARS THAT LIEUTENANT JOHNSON HAS BEEN PAID INCREASED PAY FOR FLYING FOR THE PERIOD SEPTEMBER 1 TO 13, 1947. PRESUMABLY, HE REPORTED AT HIS DUTY STATION SEPTEMBER 1 AND DEPARTED THEREFROM SEPTEMBER 13, 1947.

SPECIAL ORDERS NO. 165, HEADQUARTERS ELEVENTH AIR FORCE, HARRISBURG, PENNSYLVANIA, DATED AUGUST 21, 1947, PROVIDED IN PERTINENT PART:

"4. DP 1ST LT THOMAS A JOHNSON, 0 782 752, AC (RES) (1022 - PILOT) (42 MOS SV) IS ORDERED TO AD FOR A PERIOD OF FIFTEEN (15) DAYS EFF 31 AUG 47; IS ASGD SP 'Y' 430TH AAFBU (HQ 11TH AF), HARRISBURG, PA, AND PLACED ON DS WITH HQ ADC, MITCHEL FLD, NY. WP FROM HIS HOME 118 PENMEKEN PARK, LEXINGTON, KY TO DY STA ON EFF DATE OF AD, REPORTING NOT LATER THAN 0800 2 SEP 47 TO COL HALSEY, ASST A-1, A-1 DIV THEREAT. O WILL BE RELD FR DY STA IN TIME TO PROCEED HOME SO AS TO ARRIVE THEREAT ON 14 SEP 47, ON WHICH DATE HE WILL REVERT TO INACTIVE STATUS. ***"

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

"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 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 ***."

PARAGRAPH 6, ARMY REGULATIONS 35-1480, JANUARY 29, 1946, PROVIDES:

"FLIGHT PAY DUE FROM DATE OF REPORTING FOR DUTY.-- AN ORDER DETAILING AN OFFICER TO DUTY INVOLVING FLYING, OTHER CONDITIONS BEING MET, IS EFFECTIVE PURSUANT TO ITS TERMS, FOR PURPOSES OF FLYING PAY, ONLY WHEN THE OFFICER NAMED REPORTS FOR, AND ENTERS UPON, DUTY THEREUNDER. AN OFFICER IN A NONDUTY STATUS, SUCH AS LEAVE, SICK, ETC., WHEN AN ORDER IS ISSUED ASSIGNING HIM TO FLYING DUTY IS NOT, FOR PURPOSES OF PAY, DETAILED TO DUTY INVOLVING FLYING UNTIL HE SHALL HAVE REPORTED TO HIS DUTY STATION AND ENTERED ON DUTY UNDER THE ORDER DETAILING HIM TO DUTY INVOLVING FLYING. SEE MS COMP.GEN., A.D. 7543, 11 MAY 1923, AND 2 COMP.GEN. 370."

PARAGRAPH 3 B 2, AAF REGULATION 35-16, EFFECTIVE JUNE 28, 1946, IS QUOTED IN PERTINENT PART IN YOUR LETTER AS FOLLOWS:

"WHEN AN OFFICER IS RELIEVED FROM ACTIVE DUTY BUT RETAINS HIS COMMISSION, ORDERS REQUIRING HIM TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS WILL REMAIN IN EFFECT SO LONG AS HE RETAINS HIS COMMISSION AND WILL BE CURRENTLY VALID UPON HIS RECALL TO ACTIVE DUTY UNDER THAT COMMISSION WHEN ASSIGNED TO DUTY WITH AAF."

THE ARMY REGULATIONS QUOTED ABOVE SPECIFICALLY PROVIDE THAT AN OFFICER IS NOT ENTITLED TO AVIATION INCREASE IN PAY FOR FLYING-- NOTWITHSTANDING HIS DETAIL TO DUTY INVOLVING FLYING-- UNTIL HE SHALL HAVE REPORTED TO HIS DUTY STATION AND ENTERED UPON DUTY UNDER THE ORDERS DETAILING HIM TO DUTY INVOLVING FLYING. UNDER THIS PROVISION OF THE REGULATIONS, A MEMBER OF THE OFFICERS' RESERVE CORPS HOLDING AN AERONAUTICAL RATING, WHO IS ISSUED ORDERS TO ACTIVE DUTY WHICH SPECIFICALLY INCLUDED A PROVISION FOR REGULAR AND FREQUENT AERIAL FLIGHTS WOULD NOT BE ENTITLED TO INCREASED PAY FOR FLYING UNTIL HE ACTUALLY REPORTED TO HIS DUTY STATION. OBVIOUSLY, A RESERVE OFFICER HOLDING AN AERONAUTICAL RATING, WHOSE ACTIVE DUTY ORDERS, UNDER THE PROVISIONS OF THE QUOTED PARAGRAPH OF THE AAF REGULATIONS, DO NOT INCLUDE SPECIFIC PROVISION FOR REGULAR AND FREQUENT FLIGHTS, CAN GAIN NO GREATER BENEFIT IN THAT RESPECT. THE DECISION IN 20 COMP.GEN. 176, REFERRED TO IN YOUR LETTER, INVOLVED AN OFFICER WHOSE ACTIVE DUTY AND AERONAUTICAL RATING HAD BEEN CONTINUOUS, AND IS READILY DISTINGUISHED FROM THE CASE OF A MEMBER OF THE OFFICERS' RESERVE CORPS REPORTING FOR DUTY FROM AN INACTIVE STATUS.

SINCE IT APPEARS THAT LIEUTENANT JOHNSON DID NOT REPORT AT HIS DUTY STATION UNTIL SEPTEMBER 1, 1947, HE IS NOT ENTITLED TO INCREASED PAY FOR FLYING PRIOR TO THAT DAY, BUT IN VIEW OF THE WORDING OF THE SAID ORDERS OF AUGUST 21, 1947, THERE APPEARS TO BE NO LEGAL BASIS FOR DENYING SUCH INCREASED PAY FOR SEPTEMBER 14, THE DATE OF HIS RELEASE FROM ACTIVE DUTY. ACCORDINGLY, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, PROVIDED THAT IT IS MODIFIED TO REPRESENT FLYING PAY FOR SEPTEMBER 14, 1947, ONLY, AND IS ACCOMPANIED BY EVIDENCE THAT MINIMUM FLIGHT REQUIREMENTS WERE MET DURING THE PERIOD OF THE OFFICER'S TRAINING DUTY.