B-156035, MAR. 9, 1965

B-156035, MAR. 9, 1965

TO CAPTAIN ROGER W. KOBYLAK, 55300A, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR FLIGHT PAY FOR THE PERIOD FEBRUARY 1 TO 7, 1962, WHICH WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JANUARY 4, 1965.

BY PARAGRAPH 2, SPECIAL ORDER AB-205 DATED DECEMBER 19, 1961, ISSUED AT HEADQUARTERS, 30TH AIR DIVISION, TRUAX FIELD, WISCONSIN, YOU WERE RELIEVED FROM ASSIGNMENT WITH 4631ST SUPPORT SQUADRON (ADC), THAT STATION AND ASSIGNED TO DETACHMENT 5, 41ST AIR DIVISION (PACAF), APO 929, SAN FRANCISCO, CALIFORNIA, WITH 10 DAYS' TEMPORARY DUTY ENROUTE AT DETACHMENT 1, 41ST AIR DIVISION (PACAF), APO 929, SAN FRANCISCO, CALIFORNIA, FOR PROCESSING AND BRIEFING PRIOR TO REPORTING TO YOUR DUTY STATION. YOU SAY THAT IN COMPLIANCE WITH YOUR ORDERS YOU PERFORMED TEMPORARY DUTY AT APO 929 FROM JANUARY 28 TO FEBRUARY 8, 1962. BY PARAGRAPH 14, SPECIAL ORDER P -23, DATED FEBRUARY 10, 1962, ISSUED AT HEADQUARTERS, 6143D AIR BASE GROUP (PACAF), APO 929, SAN FRANCISCO, CALIFORNIA, YOU WERE ASSIGNED PRIMARY DUTY WITH DETACHMENT 5, 41ST AIR DIVISION, EFFECTIVE FEBRUARY 8, 1962, WITH FLYING STATUS CODE 1 AND BY PARAGRAPH 15 OF THE SAME ORDER YOUR FLYING STATUS CODE WAS CHANGED FROM CODE 1 TO CODE 5.

IT IS REPORTED THAT YOU HAD COMPLETED FLIGHT REQUIREMENTS FOR JANUARY 1962 WHILE YOU WERE IN FLYING STATUS CODE 1A, BUT NO TIME WAS RECORDED FOR FEBRUARY 1962. YOU SAY THAT YOU WERE NOT ALLOWED TO FLY AT APO 929 (WHILE PERFORMING TEMPORARY DUTY WITH DETACHMENT 1) PRIOR TO REPORTING TO DETACHMENT 5, 41ST AIR DIVISION, AS EXPLAINED IN A LETTER ATTACHED TO YOUR CLAIM. SUCH A LETTER WAS NOT RECEIVED IN THIS OFFICE ALTHOUGH THE ADMINISTRATIVE REPORT LISTED AS AN ATTACHMENT "UNSIGNED COPY OF LETTER FROM TDY STATION STATING REASON FOR NOT PERMITTING CLAIMANT TO PERFORM FLIGHT DUTIES.' HOWEVER, SUCH REPORT STATES THAT THE REASON YOUR REQUEST TO BE PERMITTED TO PERFORM FLIGHT DUTIES WAS DENIED WAS BECAUSE THE PERSONNEL ASSIGNED TO YOUR NEW DUTY STATION WERE IN FLYING STATUS CODE 5. THE LEGAL QUESTION INVOLVED IS THERE STATED AS BEING "CAN A MEMBER BE PAID FLIGHT PAY FOR A PERIOD WHEN HE WAS DENIED TO PERFORM FLYING DUTY THROUGH AN ADMINISTRATIVE ERROR? " SINCE YOUR FLYING STATUS CODE WAS CHANGED TO CODE 5 (NO FLIGHTS REQUIRED) EFFECTIVE FEBRUARY 8, 1962, AND YOU DID NOT MEET THE FLIGHT REQUIREMENTS FOR FEBRUARY 1962, PRIOR TO FEBRUARY 8, YOUR CLAIM FOR FLIGHT PAY PRIOR TO THE DATE YOU WERE LEGALLY EXCUSED FROM MEETING FLIGHT REQUIREMENTS WAS DISALLOWED.

THE ONLY BASIS ON WHICH YOU REQUEST RECONSIDERATION OF YOUR CLAIM IS THE REFUSAL TO ALLOW YOU TO OBTAIN FLYING TIME AS EXPLAINED IN A WRITTEN STATEMENT FROM THE BASE OPERATIONS OFFICER AT DETACHMENT 1, 41ST AIR DIVISION. WHILE NO COPY OF SUCH STATEMENT HAS BEEN RECEIVED IN THIS OFFICE, IF THE EXPLANATION THERE OFFERED IS THE SAME AS THAT STATED ABOVE, WE FIND NO BASIS FOR THE PAYMENT OF YOUR CLAIM. UNLESS OTHERWISE EXCUSED FROM THEIR OBLIGATION UNDER APPLICABLE PROVISIONS OF LAW AND REGULATIONS, OFFICERS UNDER FLIGHT ORDERS MUST MEET THE MINIMUM FLIGHT REQUIREMENTS FIXED BY THE REGULATIONS--- 4 HOURS OF AERIAL FLIGHT FOR EACH CALENDAR MONTH--- IN ORDER TO BE ENTITLED TO INCENTIVE PAY FOR THE PERFORMANCE OF HAZARDOUS DUTY. IT IS THE PERFORMANCE OF HAZARDOUS DUTY WHICH GIVES RISE TO A RIGHT TO RECEIVE SUCH PAY. WE KNOW OF NO AUTHORITY FOR THE PAYMENT OF FLIGHT PAY WHEN THE FLIGHT REQUIREMENTS ARE NOT MET BECAUSE LOCAL AIR FORCE OFFICIALS DO NOT PERMIT, THROUGH ERROR OR OTHERWISE, THE USE OF AVAILABLE AIRCRAFT FOR THAT PURPOSE. ACCORDINGLY, THE SETTLEMENT OF JANUARY 4, 1965, IS SUSTAINED.