B-130033, JAN. 29, 1957

B-130033, JAN. 29, 1957

TO SECRETARY OF DEFENSE:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 10, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER REGULATIONS OF THE MILITARY DEPARTMENTS MAY BE AMENDED SO AS TO CONTINUE IN A NEW ENLISTMENT THE RIGHT TO ITEMS OF PAY AND ALLOWANCES WHICH ARE CREDITED AT DATE OF DISCHARGE, WHERE REENLISTMENT IS EFFECTED AT THE SAME STATION WITHOUT A BREAK IN SERVICE. THE QUESTION, PRIMARILY, INVOLVES THE CONTINUATION OF FLYING PAY INCIDENT TO THE PERFORMANCE OF FLIGHTS IN A REENLISTMENT UNDER ORDERS WHICH WERE PROMULGATED IN THE ENLISTMENT FROM WHICH DISCHARGED.

THE MATTER IS DISCUSSED IN COMMITTEE ACTION NO. 160 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, IN WHICH, HOWEVER, ATTENTION IS CALLED TO OUR DECISION OF SEPTEMBER 30, 1931, A-38398, HOLDING THAT FLYING ORDERS TO AN ENLISTED MAN OF THE ARMY WERE AS EFFECTIVELY TERMINATED BY HIS DISCHARGE AS IF SPECIFIC ORDERS OF REVOCATION HAD BEEN ISSUED. THUS, THE DECISION CONCLUDED THAT UPON REENLISTMENT, WITH OR WITHOUT A BREAK IN SERVICE, NEW FLYING ORDERS WERE NECESSARY TO CONTINUE FLYING PAY. (SEE, TO THE SAME EFFECT, DECISION OF JULY 1, 1948, B-72437, ALSO AN ARMY CASE).

IT IS SUGGESTED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE THAT NEITHER THE LANGUAGE OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, COVERING INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY, NOR EXECUTIVE ORDER NO. 10152, AUGUST 17, 1950, PROMULGATING REGULATIONS UNDER THAT SECTION, APPEARS TO REQUIRE A CONCLUSION THAT THE TERM "COMPETENT ORDERS" MUST BE INTERPRETED TO MEAN ONLY THOSE WHICH ARE ISSUED IN ONE PARTICULAR ENLISTMENT AND THAT PERHAPS AUTHORITY TO EFFECT THE SUGGESTED CHANGE IN THE REGULATIONS IS INCLUDED IN SECTION 12 OF THE ABOVE EXECUTIVE ORDER WHICH AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE SUPPLEMENTARY REGULATIONS NOT INCONSISTENT WITH THOSE SET FORTH IN THE EXECUTIVE ORDER. IT IS POINTED OUT THAT AN AFFIRMATIVE ANSWER TO THE QUESTION POSED WOULD NOT RESULT IN THE RISK OF INCURRING IMPROPER PAYMENTS.

BOTH OF THE DECISIONS REFERRED TO ABOVE WERE RENDERED UNDER STATUTES COMPARABLE IN LANGUAGE TO THAT OF SECTION 204 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 809, AND INVOLVED ORDERS WRITTEN IN GENERAL TERMS WHICH DIRECTED THE PERFORMANCE OF REGULAR AND FREQUENT AERIAL FLIGHTS. WHILE IT WAS HELD THAT SUCH ORDERS DID NOT EXTEND TO A PERIOD OF DUTY FOLLOWING DISCHARGE AND REENLISTMENT, THOSE DECISIONS DID NOT CONSIDER WHETHER, UNDER THE LAW, COMPETENT ORDERS COULD BE DRAFTED WHICH WOULD NOT EXPIRE UPON DISCHARGE AND REENLISTMENT WITHOUT BREAK IN SERVICE. THE TERM "COMPETENT ORDERS" IS NOT DEFINED IN EITHER THE STATUTE OR IN EXECUTIVE ORDER NO. 10152.

WE HAVE RECOGNIZED THAT FLYING ORDERS TO DUTY AS AN AVIATION PILOT, ISSUED TO AN ENLISTED MAN OF THE NAVY, MAY BE CONTINUED IN EFFECT UPON HIS IMMEDIATE REENLISTMENT PROVIDED HIS ORIGINAL DESIGNATION AS AN AVIATION PILOT WAS SO WORDED AS TO CONTINUE IN EFFECT UPON IMMEDIATE REENLISTMENT. DECISION A-90459, NOVEMBER 29, 1937. AND, COMPARE 25 COMP. GEN. 260, IN WHICH WE CONCURRED IN A NAVY POLICY WHICH HAD AS ITS EXPRESS PURPOSE THE CONTINUANCE OF FLYING ORDERS TO AVIATION PILOTS UPON THEIR TRANSITION FROM AN ENLISTED STATUS TO A TEMPORARY OFFICER STATUS.

WE PERCEIVE NO OBJECTION TO THE AMENDMENT OF THE REGULATIONS WITHIN THE LIMITATIONS PROPOSED SO AS TO PERMIT THE ISSUANCE OF ORDERS TO AVIATION DUTY WHICH WOULD, BY THEIR EXPRESS TERMS, REMAIN IN EFFECT AFTER DISCHARGE AND REENLISTMENT AT THE SAME STATION WITHOUT A BREAK IN SERVICE. IT IS SUGGESTED THAT IF THE REGULATIONS ARE AMENDED, IT BE REQUIRED THAT THE MEMBER HAVE EFFECTIVE COMPETENT ORDERS TO AVIATION DUTY ON THE DAY OF HIS DISCHARGE RATHER THAN THE REQUIREMENT THAT HE BE ENTITLED TO INCENTIVE PAY FOR THE DAY OF DISCHARGE.