B-94929, JULY 28, 1950, 30 COMP. GEN. 31

B-94929, JULY 28, 1950, 30 COMP. GEN. 31

PAY - MIDSHIPMEN - FLYING PAY AS AFFECTED BY THE CAREER COMPENSATION ACT OF 1949 IN VIEW OF THE CAREER COMPENSATION ACT OF 1949 RENDEREING INOPERATIVE THE PROVISIONS OF THE ACT OF AUGUST 13, 1946, FOR FLYING PAY FOR MIDSHIPMEN OF THE UNITED STATES NAVY BY REPEALING SECTIONS 17 AND 18 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, UNDER WHICH SUCH FLYING PAY PREVIOUSLY WAS COMPUTED, AND MIDSHIPMEN NOT BEING INCLUDED AS MEMBERS OF THE UNIFORMED SERVICES UNDER THE 1949 ACT, THEY ARE NOT ENTITLED TO INCREASED PAY FOR FLYING DUTY PERFORMED ON OR AFTER THE EFFECTIVE DATE OF THE 1949 ACT NOR TO CONTINUE TO RECEIVE FLYING PAY UNDER THE SAVED PAY PROVISIONS OF SECTION 515 (B) OF THAT ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 28, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 25, 1950, WITH ENCLOSURES, REQUESTING DECISION AS TO THE RATE, IF ANY, AT WHICH AVIATION INCENTIVE PAY SHOULD BE CREDITED TO MIDSHIPMEN DAVID T. STYLES, U.S. NAVY, EFFECTIVE FEBRUARY 1, 1950. IT IS STATED THAT MR. STYLES WAS IN RECEIPT OF FLIGHT PAY ON SEPTEMBER 30, 1949; THAT HE PERFORMED NO FLIGHTS DURING THE PERIOD OCTOBER 1 TO 5, 1949; THAT ON OCTOBER 6, 1949, HE WAS SUSPENDED FROM FLYING BY REASON OF SICKNESS INCURRED IN LINE OF DUTY; THAT THIS SUSPENSION CONTINUED UNTIL JANUARY 27, 1950; AND THAT MR. STYLES MET FLIGHT REQUIREMENTS FOR FEBRUARY 1950.

A LETTER OF THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, FORWARDED WITH YOUR LETTER, REFERS TO PARAGRAPH 13 (B), PART A, MILITARY PAY INSTRUCTION MEMORANDUM 1, AS PERTINENT IN MR. STYLES' CASE. THE SAID SUBPARAGRAPH DIRECTS THAT AVIATION MIDSHIPMEN, IF ON ACTIVE DUTY INVOLVING FLYING ON SEPTEMBER 30, 1949, SHALL CONTINUE TO BE PAID AS SPECIFIED IN PARAGRAPH 54985-2 (OF BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, 1948) AS LONG AS ENTITLEMENT TO FLIGHT PAY CONTINUES WITHOUT INTERRUPTION. THIS PARAGRAPH 54985-2 IS A PARAPHRASE OF THAT PORTION OF SECTION 4 OF THE ACT OF AUGUST 13, 1946, 60 STAT. 1058, 1059, WHICH PROVIDES THAT:

* * * WHILE IN FLIGHT TRAINING OR ON OTHER FLIGHT DUTY MIDSHIPMEN APPOINTED UNDER PART (B) OF SECTION 3 SHALL BE ENTITLED TO THE PAY AND ALLOWANCES NOW OR HEREAFTER PROVIDED BY LAW FOR MIDSHIPMEN UNDER INSTRUCTION AT THE UNITED STATES NAVAL ACADEMY AND TO THE SAME PERCENTAGE INCREASES OF THEIR PAY AS ARE NOW OR HEREAFTER PROVIDED BY LAW FOR OFFICERS OF THE NAVY ASSIGNED TO DUTY INVOLVING FLYING * * *.

THIS OFFICE IS NOT ADVISED OF ANY OTHER PROVISION OF LAW IN EFFECT ON SEPTEMBER 30, 1949, AUTHORIZING FLYING PAY FOR MIDSHIPMEN.

SECTION 17 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, AS AMENDED BY THE ACT OF JUNE 20, 1947, 61 STAT. 134, PROVIDED, INTER ALIA, THAT MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY SHOULD BE ENTITLED TO PAY AT THE RATE OF $936 PER ANNUM. SECTION 18 OF THE SAID ACT, 56 STAT. 368, PROVIDED, 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 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 * * *

THUS, IT APPEARS THAT ON SEPTEMBER 30, 1949, BY REASON OF ASSIMILATION TO THE PROVISIONS OF THE ABOVE SECTION 17 AND 18, MR. STYLES' MONTHLY PAY WAS $78 AND HIS MONTHLY FLYING PAY WAS 50 PERCENTUM THEREOF, OR $39.

SECTIONS 17 AND 18 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WERE REPEALED BY SECTION 531 (B) OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, EFFECTIVE OCTOBER 1, 1949, 63 STAT. 838. THE PROVISIONS OF THE ABOVE SECTION 17 WERE REENACTED WITHOUT CHARGE AS SECTION 508 OF THE CAREER COMPENSATION ACT, 63 STAT. 828. IN LIEU OF THE 50 PERCENTUM BASIS FOR FLYING PAY FOR OFFICERS OF THE NAVY WHICH HAD BEEN PRESCRIBED IN THE ABOVE SECTION 18, THE CAREER COMPENSATION ACT, IN SECTION 204, 63 STAT. 809, AUTHORIZES "INCENTIVE PAY" FOR FREQUENT AND REGULAR PARTICIPATION IN AERIAL FLIGHTS BY OFFICERS, AT A FLAT RATE OF $100 PER MONTH TO OFFICERS IN ALL GRADES FOR FLIGHTS NOT AS CREW MEMBERS, AND AT FLAT RATES VARYING FROM $100 TO $210 PER MONTH, DEPENDING UPON GRADE, FOR FLIGHTS BY OFFICERS AS CREW MEMBERS. NONE OF THESE RATES OF INCENTIVE PAY ARE ESTABLISHED ON A PERCENTAGE BASIS. IN FACT, THE PERCENTAGE BASIS FOR FLYING DUTY PAY WAS WHOLLY AND DELIBERATELY ABANDONED BY THE FRAMERS OF THE NEW LEGISLATION. WHILE THE NEW RATES WERE FIXED AS A SUBSTITUTE FOR THE RATES AUTHORIZED UNDER PRIOR LAWS, THIS OFFICE FINDS NO BASIS FOR CHOOSING ANY ONE OF THE NEW RATES TO BE PAYABLE TO MIDSHIPMEN. HENCE, THE PROVISION IN THE ACT OF AUGUST 13, 1946, SUPRA, THAT AVIATION MIDSHIPMEN SHALL RECEIVE, FOR FLYING DUTY,"THE SAME PERCENTAGE INCREASES OF THEIR PAY AS ARE NOW OR HEREAFTER PROVIDED BY LAW FOR OFFICERS OF THE NAVY ASSIGNED TO DUTY INVOLVING FLYING" BECAME INOPERATIVE ON OCTOBER 1, 1949, SINCE ON THAT DATE PERCENTAGE INCREASES TO OFFICERS OF THE NAVY FOR FLYING DUTY WERE ABOLISHED.

IT IS STATED IN YOUR LETTER THAT MR. STYLES WAS ENTITLED TO CONTINUE TO RECEIVE FLIGHT PAY IN ACCORDANCE WITH SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA. THAT ACT, AS STATED IN ITS TITLE, PROVIDES PAY, ALLOWANCES AND PHYSICAL DISABILITY RETIREMENT FOR "MEMBERS" OF THE ARMY, NAVY, ETC. THE FOLLOWING PROVISIONS OF THE SAID ACT, 63 STAT. 804, ARE PERTINENT TO THE QUESTION OF SAVED FLYING PAY IN THE PRESENT CASE:

SEC. 102. * * *

(B) THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES. AS USED IN THIS SUBSECTION THE WORDS "RETIRED PERSON" SHALL INCLUDE MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE WHO ARE IN RECEIPT OF RETAINER PAY.

(C) THE TERM "OFFICER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, AND FLIGHT OFFICER, EITHER PERMANENT OR TEMPORARY, OF THE UNIFORMED SERVICES. USED IN THIS SUBSECTION THE WORD "TEMPORARY" SHALL INCLUDE TEMPORARY OFFICERS WHOSE PERMANENT STATUS IS THAT OF AN ENLISTED PERSON.

(D) THE TERM "COMMISSIONED OFFICER" MEANS A MEMBER OF THE UNIFORMED SERVICES HAVING RANK OR GRADE OF SECOND LIEUTENANT, ENSIGN, OR JUNIOR ASSISTANT GRADE, OR ABOVE, EITHER PERMANENT OR TEMPORARY, IN ANY OF THE UNIFORMED SERVICES, EXCEPT THAT FOR PURPOSES OF SECTION 203 OF THIS ACT SUCH TERM SHALL BE LIMITED TO THE DEFINITION PRESCRIBED IN SUBSECTION (A) OF SAID SECTION.

SEC. 515. (A) NO MEMBER SERVING ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THIS ACT SHALL, PRIOR TO JULY 1, 1952, AND WHILE SERVING ON CONTINUOUS ACTIVE DUTY, INCLUDING FOR THE PURPOSE OF SUCH CONTINUOUS ACTIVE-DUTY SERVICE IN A REENLISTMENT ENTERED INTO WITHIN THREE MONTHS FROM THE DATE OF LAST DISCHARGE, SUFFER ANY REDUCTION BY REASON OF THIS ACT IN THE TOTAL COMPENSATION WHICH HE IS ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE: PROVIDED, THAT (1) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO SUCH MEMBER WHENEVER HE SHALL BECOME ENTITLED TO RECEIVE TOTAL COMPENSATION IN EXCESS OF THE AMOUNT TO WHICH HE WAS ENTITLED ON THE DAY PRECEDING SUCH EFFECTIVE DATE; (2) THE PROVISIONS OF THIS SUBSECTION SHALL CEASE TO APPLY TO ANY PART OF SUCH TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER TO QUALIFY THEREFOR * * *.

THE SAID SECTION 515 (A), 63 STAT. 831, PERTAINS TO "MEMBERS" OF THE ARMY, NAVY, ETC., BUT IT WILL BE NOTED THAT THE DEFINITION OF "MEMBERS" AS CONTAINED IN SECTION 102 (B) OF THE ACT DOES NOT INCLUDE MIDSHIPMEN. THERE IS NO INTIMATION IN THE ACT OR IN ITS LEGISLATIVE HISTORY THAT THE WORD ,MEMBER" AS USED IN THE SO-CALLED SAVED PAY PROVISIONS WAS INTENDED TO INCLUDE OTHER THAN THOSE DESIGNATIONS LISTED IN THE DEFINITION. THIS CONNECTION, SECTION 201 (A) OF THE ACT, 63 STAT. 805, PROVIDES BASIC PAY FOR "MEMBERS OF THE UNIFORMED SERVICES" LISTING MONTHLY RATES OF PAY FOR COMMISSIONED OFFICERS, WARRANT OFFICERS, AND ENLISTED PERSONS ONLY. THE PAY AND ALLOWANCES OF MIDSHIPMEN ARE FIXED IN A SEPARATE SECTION, NOT AS A "MEMBER" OF THE UNIFORMED SERVICES AS THAT TERM IS USED IN THE STATUTE. IN REFERENCE TO SECTION 201 (A) IT IS STATED, AT PAGE 15 OF SENATE REPORT 733, JULY 20, 1949, ON H.R. 5007--- WHICH BECAME THE CAREER COMPENSATION ACT OF 1949--- T,"THIS SUBSECTION PRESCRIBES PAY GRADES FOR ALL PERSONNEL OF ALL THE SERVICES INCLUDED IN THE L.' ( ITALICS SUPPLIED.) ALSO, ON FEBRUARY 9, 1950, MR. VINSON, CHAIRMAN OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, INTRODUCED H.R. 7246, 81ST CONGRESS, A BILL TO AMEND THE CAREER COMPENSATION ACT OF 1949, SO AS TO INCLUDE, INTER ALIA, THE WORD "MIDSHIPMAN" IN THE DEFINITION OF "MEMBER" IN SECTION 102 (B) OF THE SAID ACT.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT MR. STYLES WAS NOT A "MEMBER" OF THE UNIFORMED SERVICES WITHIN THE CONTEMPLATION OF SECTION 515 OF THE CAREER COMPENSATION ACT OF 1949, AND THAT THEREFORE HE IS NOT ENTITLED TO THE BENEFITS OF THAT SECTION. AND, SINCE AS INDICATED ABOVE, THE BASIS FOR DETERMINING HIS FLYING PAY WAS ABOLISHED OCTOBER 1, 1949, IT APPEARS THAT HE WAS NOT ENTITLED TO INCREASED PAY FOR FLYING DUTY FOR ANY PERIOD AFTER SEPTEMBER 30, 1949. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.