B-43602, DECEMBER 15, 1944, 24 COMP. GEN. 454

B-43602, DECEMBER 15, 1944, 24 COMP. GEN. 454

PAY - AVIATION DUTY - DURING PERIODS OF INCAPACITY - ABSENCE OF WRITTEN AVIATION-DUTY ORDERS AT TIME OF INJURY A STATEMENT TO THE EFFECT THAT, BUT FOR AN INCAPACITATING INJURY SUFFERED BY A NAVY ENLISTED MAN WHILE UNDER VERBAL ORDERS FOR THE PERFORMANCE OF AERIAL FLIGHTS, ORDERS WOULD HAVE BEEN ISSUED REQUIRING HIS CONTINUED REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS FOR THE THREE-MONTH PERIOD FOLLOWING THE INJURY MAY NOT, IN THE ABSENCE OF WRITTEN ORDERS, BE ACCEPTED AS ESTABLISHING THE MAN'S RIGHT TO AVIATION PAY FOR SAID THREE- MONTH PERIOD, REGARDLESS OF WHETHER HIS INJURY WAS THE RESULT OF AN "AVIATION ACCIDENT" AS DEFINED IN EXECUTIVE ORDER NO. 9195, PERMITTING CONTINUANCE OF AVIATION PAY, AUTHORIZED BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, FOR THREE MONTHS FOLLOWING AN INCAPACITATING ACCIDENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 15, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 29, 1944, IN WHICH YOU REQUEST A DECISION AS TO THE RIGHT OF KENNETH LEE EBSEN, AOM3C, USNR, TO BE CREDITED WITH AVIATION PAY FOR THE THREE-MONTH PERIOD BEGINNING NOVEMBER 11, 1943, UNDER THE CONDITIONS SET FORTH IN THE CORRESPONDENCE ENCLOSED WITH YOUR LETTER.

INCLUDED IN THE FILE TRANSMITTED WITH YOUR LETTER IS A COPY OF A FLIGHT CERTIFICATE S. AND A. FORM 38, FOR THE PERIOD FROM NOVEMBER 1 TO 30, 1943, EXECUTED BY THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, LAKE CITY, FLORIDA, IN WHICH THE OFFICER CERTIFIES THAT "UNDER ORDERS OF COMPETENT AUTHORITY IN FORCE DURING THE ABOVE INDICATED PERIODS EACH INDIVIDUAL WHOSE NAME IS LISTED HEREON WAS IN A FLYING STATUS AND HAS FULFILLED ALL FLIGHT REQUIREMENTS AND CONDITIONS IN FORCE DURING SUCH PERIODS * * *.' EBSEN'S NAME IS INCLUDED IN THE LIST AS IN A FLYING STATUS, ETC., FOR THE ENTIRE MONTH OF NOVEMBER, 1943.

THE AVIATION TRAINING OFFICER, UNITED STATES NAVAL AIR STATION, LAKE CITY, FLORIDA, STATES IN A MEMORANDUM DATED MARCH 14, 1944:

1. THE SUBJECT MAN WAS INJURED IN THE LINE OF DUTY ON 11 NOVEMBER 1943 AND WAS IN THE DISPENSARY AT N.A.S., LAKE CITY, FLA. OR IN THE U.S. NAVAL HOSPITAL, N.A.S., JACKSONVILLE, FLA., CONTINUOUSLY UNTIL 10 MARCH 1944. HE WAS IN A FLIGHT STATUS WHEN INJURED, HIS FLIGHT ORDERS BEING SUSPENDED AND THEN REINSTATED WHEN HE WAS RETURNED TO DUTY. EBSEN HAS APPLIED FOR FLIGHT PAY FOR THIS PERIOD ON THE BASIS THAT HE WAS INJURED IN THE LINE OF DUTY IN AN AIRCRAFT ACCIDENT. HE WOULD HAVE BEEN IN A FLIGHT STATUS HAD HE REMAINED ON DUTY DURING THE PERIOD.

2. THE DETAILS OF THE ACCIDENT ARE AS FOLLOWS. EBSEN WAS LOADING A MARTIN 18 PRACTICE BOMB IN AN SNB PLANE. THE PRACTICE BOMB PROVED DEFECTIVE AND EXPLODED INJURING EBSEN. AT THE TIME THE ACCIDENT TOOK PLACE THE PILOT AND ALL THE PASSENGERS WERE ABOARD, THE WHITE SLIP FOR THE FLIGHT HAD BEEN SIGNED AND THE PLANE WAS BEING PUSHED FROM THE LINE,MOTORS TURNING, PREPARATORY TO TAXIING.

THE DISBURSING OFFICER AT THE ABOVE STATION, STATES THAT---

* * * WE CONTACTED THE FLIGHT TRAINING OFFICER OF THIS STATION WHO STATED THERE ARE NO WRITTEN ORDERS ISSUED TO AIRCREWMEN ON THIS STATION AND NO WRITTEN SUSPENSION OF ORDERS FOR THIS MAN OTHER THAN THE TRANSFER ORDER OF THE SENIOR MEDICAL OFFICER TO SEND THE MAN TO THE NAVAL HOSPITAL AT JACKSONVILLE, FLORIDA.

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

PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, JULY 7, 1942, ISSUED PURSUANT TO THE ABOVE SECTION 18, PROVIDES IN PART:

FOR PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, OR NATIONAL GUARD (WHEN IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AND WHEN PARTICIPATING IN EXERCISES OR PERFORMING DUTIES PROVIDED FOR BY SECTIONS 94, 97, AND 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED), WHO ARE REQUIRED BY COMPETENT AUTHORITY TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, THE FOLLOWING REQUIREMENTS ARE PRESCRIBED: PROVIDED, THAT ANY OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO HAS BEEN REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, AS DEFINED IN THIS EXECUTIVE ORDER, AND WHO SUBSEQUENTLY BECOMES INCAPACITATED FOR FLYING BY REASON OF AN AVIATION ACCIDENT SHALL NOT BE REQUIRED TO PERFORM SUCH AERIAL FLIGHTS DURING SUCH INCAPACITY FOR A PERIOD NOT TO EXCEED THREE MONTHS FOLLOWING THE DATE OF SAID ACCIDENT.

PARAGRAPH 1 (H) OF THE ABOVE EXECUTIVE ORDER IS AS FOLLOWS:

THE TERM "AVIATION ACCIDENT" SHALL BE CONSTRUED TO MEAN AN ACCIDENT IN WHICH AN OFFICER, WARRANT OFFICER, MEMBER OF THE ARMY NURSE CORPS OR NAVY NURSE CORPS (FEMALE), OR ENLISTED MAN WHO IS REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS IS INJURED WHILE AN OCCUPANT OF AN AIRCRAFT OR AS THE RESULT OF JUMPING FROM, BEING THROWN FROM, OR BEING STRUCK BY, AN AIRCRAFT OR ANY PART OF AUXILIARY THEREOF, OR IN WHICH APPROPRIATE MEDICAL AUTHORITY OF THE SERVICES ATTESTS THAT INJURY RESULTED FROM PARTICIPATION IN DULY AUTHORIZED AERIAL FLIGHTS.

UNDER THE ACT OF JUNE 16, 1942, AND EXECUTIVE ORDER NO. 9195, SUPRA, THE CONTINUATION OF FLYING PAY AS THE RESULT OF AN AVIATION ACCIDENT IS CONTINGENT UPON A PHYSICAL INCAPACITY RESULTING FROM AN INJURY SUSTAINED IN AN AVIATION ACCIDENT--- AS DEFINED IN SAID EXECUTIVE ORDER -- WHICH OCCURRED WHILE PERFORMING AVIATION DUTY UNDER ORDERS OF COMPETENT AUTHORITY WHICH BUT FOR THE AVIATION ACCIDENT WOULD HAVE CONTINUED THE PERSON SO INJURED IN A FLIGHT STATUS FOR PAY PURPOSES DURING THE PERIOD OF INCAPACITY. THAT IS TO SAY, THE INJURY RELIEVES THE PERSON FROM THE NECESSITY OF PERFORMING THE MINIMUM FLIGHT REQUIREMENTS, FOR NOT TO EXCEED THREE MONTHS, WHICH EXISTING ORDERS OF COMPETENT AUTHORITY OTHERWISE WOULD EXACT AS A CONDITION TO THE LAWFUL RECEIPT OF FLYING PAY.

WHEN A CLAIM COVERS A PERIOD DURING WHICH THE MAN WAS NOT ABLE TO, AND DID NOT, PARTICIPATE IN AERIAL FLIGHTS, THERE CAN BE NO PRESUMPTION AS TO THE EXISTENCE OF ORDERS THAT WOULD HAVE REQUIRED FLIGHTS BUT FOR THE DISABILITY. UNDER SUCH CIRCUMSTANCES, FLIGHT PAY FOR SUCH PERIOD IS NOT AUTHORIZED UNLESS WRITTEN ORDERS COVERING THE PERIOD ARE PRODUCED.

A CERTIFICATE AS TO WHAT WOULD HAVE HAPPENED BUT FOR THE ACCIDENT IS NOT A CERTIFICATE AS TO AN ACTUAL EXISTING OR PAST FACT OR OCCURRENCE SUCH AS MAY BE ACCEPTED BY THIS OFFICE WITHOUT FURTHER PROOF. HENCE, A STATEMENT THAT BUT FOR THE ACCIDENT EBSEN WOULD HAVE BEEN ISSUED ORDERS REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS FOR THE PERIOD OF HIS CLAIM MAY NOT BE ACCEPTED AS ESTABLISHING A RIGHT TO FLIGHT PAY FOR SUCH PERIOD. YOU ARE ADVISED, THEREFORE, THAT IN THE ABSENCE OF WRITTEN ORDERS REQUIRING THE ENLISTED MAN TO PARTICIPATE IN REGULAR AND FREQUENT AERIAL FLIGHTS FOR THE THREE-MONTH PERIOD BEGINNING NOVEMBER 11, 1943, HE IS NOT ENTITLED TO FLIGHT PAY FOR SUCH PERIOD, EVEN IF THE INJURY SUSTAINED BY HIM ON THAT DATE WAS THE RESULT OF AN ,AVIATION ACCIDENT" AS DEFINED IN EXECUTIVE ORDER 9195, SUPRA. ..END :