B-43871, JANUARY 9, 1945, 24 COMP. GEN. 501

B-43871, JANUARY 9, 1945, 24 COMP. GEN. 501

PAY - AVIATION DUTY - STUDENT NAVAL FLIGHT SURGEONS STUDENT NAVAL FLIGHT SURGEONS DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION PURSUANT TO COMPETENT ORDERS ARE NONFLYING OFFICERS WHOSE INCREASED PAY FOR FLYING IS SUBJECT TO THE STATUTORY LIMITATION OF $720 PER ANNUM, RATHER THAN "COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING" WITHIN THE MEANING OF THE PROVISION IN RECENT MILITARY APPROPRIATION ACTS INCLUDING SUCH OFFICERS WITHIN THE DEFINITION OF FLYING OFFICERS ENTITLED UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 TO 50 PERCENT INCREASE IN PAY FOR FLYING, SAID PROVISION BEING APPLICABLE ONLY TO OFFICERS UNDERGOING FLYING TRAINING AS STUDENT AVIATORS. A NAVY AVIATION MEDICAL EXAMINER--- A NONFLYING OFFICER--- WHO HAS BEEN DESIGNATED AS A FLIGHT SURGEON--- A FLYING OFFICER--- BECOMES ENTITLED TO THE INCREASED FLYING PAY AUTHORIZED FOR FLYING OFFICERS BY SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 ON THE DATE HE RECEIVES NOTICE OF THE DESIGNATION, AND NOT ON THE EFFECTIVE DATE STATED THEREIN, EVEN THOUGH HE HAS MET THE PRESCRIBED FLIGHT REQUIREMENTS FOR FLYING OFFICERS DURING THE PERIOD BETWEEN SUCH EFFECTIVE DATE AND THE DATE HE RECEIVED NOTICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 9, 1945:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1944 (FILE JAG:II:WJZ:Z L- 16-4/10) (OV), REQUESTING DECISION ON SEVERAL QUESTIONS STATED AS FOLLOWS:

(1) WHETHER OR NOT RIGHT TO AVIATION PAY UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 368: 37 U.S. CODE, SUPP. III, 118), IN THE CASE OF AN OFFICER OF THE MEDICAL CORPS OF THE NAVY UNDER THE CIRCUMSTANCES SET FORTH IN PARAGRAPH 2 OF THE ENCLOSURE, COMMENCES WITH DATE OF DESIGNATION AS NAVAL FLIGHT SURGEON, WITH EFFECTIVE DATE OF SUCH DESIGNATION AS STATED THEREIN, OR WITH DATE OF RECEIPT OF THE DESIGNATION?

(2) ON WHAT DATE DID LIEUTENANT HARRY M. (H.) ROSENTHAL, MC-V/G), USNR, BECOME ENTITLED TO AVIATION PAY AS A FLYING OFFICER, UNDER THE CONDITIONS STATED IN PARAGRAPH 3 OF THE ENCLOSURE?

(3) WHETHER OR NOT AN OFFICER OF THE MEDICAL CORPS OF THE NAVY WHO IS DESIGNATED A STUDENT NAVAL FLIGHT SURGEON AND DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION AS SET FORTH IN EXECUTIVE ORDER 9195 OF JULY 7, 1942, IS ENTITLED TO AVIATION PAY AS PRESCRIBED IN SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WHILE UNDERGOING FLIGHT TRAINING TO QUALIFY AS A NAVAL FLIGHT SURGEON?

THE ENCLOSURE FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, IS ADDRESSED TO THE SECRETARY OF THE NAVY, AND IS AS FOLLOWS:

1. THE CURRENT ADMINISTRATIVE DEFINITION OF THE TERM "FLYING OFFICER" AND THE INSTRUCTIONS WITH REGARD TO CREDITING AVIATION PAY TO NONFLYING OFFICERS AND OBSERVERS IN THE NAVY ARE CONTAINED IN ARTICLE 2140-2 S AND A MEMORANDUM 493. SUCH INSTRUCTIONS PROVIDE INTER ALIA THAT EFFECTIVE 1 JULY 1942, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, A FLYING OFFICER ALSO INCLUDES FLIGHT SURGEONS, AND COMMISSIONED OR WARRANT OFFICERS WHILE UNDERGOING FLIGHT TRAINING. AN OFFICER OF THE MEDICAL CORPS OF THE NAVY WHO HOLDS A DESIGNATION AS AVIATION MEDICAL EXAMINER IS CONSIDERED A NONFLYING OFFICER WHILE ASSIGNED TO DUTY INVOLVING FLYING WITH THE AERONAUTICAL ORGANIZATION OF THE NAVY, AND THEREFORE ENTITLED TO AVIATION PAY LIMITED BY THE RESTRICTIVE PROVISIONS IN THE NAVAL APPROPRIATION ACT. HOWEVER, SINCE 1 JULY 1942 FLIGHT SURGEONS HAVE BEEN CLASSIFIED AS "FLYING OFFICERS" AND AN OFFICER OF THE MEDICAL CORPS HOLDING SUCH DESIGNATION WHEN DETAILED TO DUTY INVOLVING FLYING WITH THE AERONAUTICAL ORGANIZATION OF THE NAVY IS ENTITLED TO AVIATION PAY IN ACCORDANCE WITH SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942.

2. DUE TO WAR CONDITIONS THE NEED FOR NAVAL FLIGHT SURGEONS HAS INCREASED TO THE POINT WHERE IT IS NOT POSSIBLE TO SEND ALL OF THE MEDICAL OFFICERS UNDERGOING INSTRUCTION IN AVIATION MEDICINE TO THE NAVAL AIR STATION, PENSACOLA, TO OBTAIN THE FLIGHT EXPERIENCE REQUIRED TO QUALIFY FOR DESIGNATION AS NAVAL FLIGHT SURGEON. MEDICAL OFFICERS OF THE NAVY WHO ARE QUALIFIED IN AVIATION MEDICINE BUT WHO HAVE NOT HAD THE REQUIRED FLIGHT EXPERIENCE TO QUALIFY AS NAVAL FLIGHT SURGEONS ARE DESIGNATED AVIATION MEDICAL EXAMINERS AND DETAILED TO DUTY INVOLVING FLYING IN THAT CAPACITY WITH AVIATION UNITS. THOSE OFFICERS OF THE MEDICAL CORPS HOLDING SUCH DESIGNATION ARE, WHILE DETAILED TO DUTY INVOLVING FLYING, CONSIDERED AS BEING UNDER INSTRUCTION AS STUDENT NAVAL FLIGHT SURGEONS UNTIL SUCH TIME AS THEY HAVE COMPLETED THE REQUIRED FLYING TIME. AFTER THE COMPLETION OF THE REQUIRED FLYING TIME, AN OFFICER HOLDING A DESIGNATION AS AVIATION MEDICAL EXAMINER IS ELIGIBLE FOR DESIGNATION AS NAVAL FLIGHT SURGEON, PROVIDED HIS RECORD IS ACCEPTABLE TO THE BUREAU OF MEDICINE AND SURGERY. A DESIGNATION AS NAVAL FLIGHT SURGEON IS THEN ISSUED IN ACCORDANCE WITH EXECUTIVE ORDER 9195 OF 7 JULY 1942, AND FORWARDED TO THE OFFICER CONCERNED. HOWEVER, NO ADDITIONAL ORDERS MODIFYING EXISTING ORDERS TO DUTY INVOLVING FLYING ARE ISSUED, IN VIEW OF THE FACT THAT IT IS CONSIDERED THAT EXISTING DETAIL TO DUTY INVOLVING FLYING REMAINS IN EFFECT AND SUCH DETAIL IS NOT AFFECTED BY THE CHANGE IN STATUS.

3. THE COMPTROLLER GENERAL HAS CONSISTENTLY HELD THAT THE ISSUANCE OF AN AERONAUTICAL DESIGNATION CONFERS NO RIGHT TO AVIATION PAY; A DETAIL TO DUTY INVOLVING FLYING BY ORDERS OF COMPETENT AUTHORITY BEING THE FIRST ESSENTIAL OF ENTITLEMENT TO AVIATION PAY, AND THAT SUCH ORDER IS EFFECTIVE FOR PAY PURPOSES WHEN THE INDIVIDUAL REPORTS FOR AND ENTERS UPON DUTY THEREUNDER. THE QUESTION THEREFORE HAS ARISEN AS TO WHETHER RIGHT TO AVIATION PAY UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 IN THE CASE OF AN OFFICER OF THE MEDICAL CORPS UNDER THE CIRCUMSTANCES CITED IN THE PRECEDING PARAGRAPH COMMENCES WITH DATE OF DESIGNATION AS NAVAL FLIGHT SURGEON, WITH EFFECTIVE DATE OF SUCH DESIGNATION AS STATED THEREIN, OR WITH DATE OF RECEIPT OF THE DESIGNATION. A CASE IN POINT IS THAT OF LT. HARRY M. (H.) ROSENTHAL MC-V (G), USNR, WHO GRADUATED FROM THE NAVY SCHOOL OF AVIATION MEDICINE ON 7 MARCH 1942, WITH THE DESIGNATION OF AVIATION MEDICAL EXAMINER. HE WAS DETAILED TO DUTY INVOLVING FLYING BY BUPERS ORDERS OF 13 FEBRUARY 1943, WAS DESIGNATED NAVAL FLIGHT SURGEON EFFECTIVE 20 JULY AND 22 DECEMBER 1943, LIEUTENANT ROSENTHAL MET THE FLIGHT REQUIREMENTS PRESCRIBED BY EXECUTIVE ORDER 9195 OF 7 JULY 1942, AND THEREBY BECAME ENTITLED TO OTHERWISE PROPER CREDIT OF AVIATION PAY AT THE RATE PRESCRIBED IN SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942. IT IS DEEMED ADVISABLE TO OBTAIN FROM THE COMPTROLLER GENERAL A DECISION AS TO THE DATE ON WHICH LIEUTENANT ROSENTHAL BECAME ENTITLED TO AVIATION PAY AS A FLYING OFFICER, IN ORDER THAT AN AUTHORITATIVE RULING MAY BE AVAILABLE AS A FUTURE GUIDE.

4. THE VIEWS OF THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY ON THIS SUBJECT, CONCURRED IN BY THE CHIEF OF NAVAL PERSONNEL, ARE AS FOLLOWS:

"IT IS THIS BUREAU'S OPINION THAT CHANGE OF DESIGNATION FROM AVIATION MEDICAL EXAMINER TO THAT OF FLIGHT SURGEON DOES NOT CONSTITUTE IN FACT A NEW CHANGE OF DUTY FOR SUCH AN OFFICER, NOR ALTER HIS FUNDAMENTAL DUTY OR PROFESSIONAL OBJECTIVITY IN THE FUNCTION OF HIS SPECIALTY OF AVIATION MEDICINE. ON THE CONTRARY, IN SUCH A CASE, THE DESIGNATION " FLIGHT SURGEON" IS REGARDED AS AN OFFICIAL RECOGNITION OF EXPERIENCE AND IMPROVED PROFESSIONAL ABILITY IN THE SPECIALTY OF AVIATION MEDICINE, THE DUTIES AND OBJECTIVITY REMAIN THE SAME. ACCORDINGLY, THE GOVERNING FACTOR FOR PAY PURPOSES SHOULD BE THE DATE SUCH QUALIFICATION IS RECOGNIZED, AND SPECIFIED IN THE DESIGNATION WHEN ISSUED, AND NOT THE DATE SUCH DESIGNATION MAY BE DELIVERED. IN FURTHER EXPLANATION FOR THESE OPINIONS:

"TO BE DESIGNATED AN AVIATION MEDICAL EXAMINER, A MEDICAL OFFICER COMPLETES A PRESCRIBED COURSE IN AVIATION MEDICINE WHICH IS DIDACTIC. OBTAIN THE DESIGNATION " FLIGHT SURGEON," A MEDICAL OFFICER COMPLETES THE SAME DIDACTIC COURSE, BUT IN ADDITION MUST COMPLETE AN ADDITIONAL PERIOD OF INDOCTRINAL FLIGHT TRAINING. AVIATION MEDICAL EXAMINERS SERVING WITH AVIATION ACTIVITIES, WHO COMPLETE NOT LESS THAN SIX MONTHS DUTY WITH SUCH UNITS AND WHO ACQUIRE NOT LESS THAN 60 HOURS OF FLYING EXPERIENCE IN NAVAL AIRCRAFT, AND WHO OTHERWISE DEMONSTRATE THEIR QUALIFICATIONS, AND ARE SO RECOMMENDED, MAY BE DESIGNATED A NAVAL FLIGHT SURGEON. THUS, THE DUTY AND MISSION IS NOT CHANGED. THE DESIGNATION REFERS ONLY TO THE RECOGNITION OF INCREASED PROFICIENCY BASED ON EXPERIENCE AND TRAINING.

"THIS BUREAU RECOMMENDS THAT MEDICAL OFFICERS WHO ARE DESIGNATED AVIATION MEDICAL EXAMINERS, AND WHO RECEIVE A DESIGNATION AS FLIGHT SURGEON WHILE ON REGULARLY ASSIGNED DUTY INVOLVING FLYING; THAT THE EFFECTIVE DATE OF SUCH FLIGHT SURGEON DESIGNATION FOR PAY PURPOSES SHALL BE THE DATE SPECIFIED IN THE DESIGNATION, AND NOT THE DATE SUCH DESIGNATION MAY BE DELIVERED, PROVIDED THAT THE FLYING REQUIREMENT PRESCRIBED FOR SUCH DESIGNATION FOR THE PERIOD IN QUESTION SHALL HAVE BEEN MET.'

5. ANOTHER POINT WHICH REQUIRES CLARIFICATION IS WHETHER AN OFFICER OF THE MEDICAL CORPS WHO IS DESIGNATED A STUDENT NAVAL FLIGHT SURGEON AND DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION AS SET FORTH IN EXECUTIVE ORDER 9195 DATED 7 JULY 1942 IS ENTITLED TO AVIATION PAY AS PRESCRIBED IN SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942 WHILE UNDERGOING FLIGHT TRAINING TO QUALIFY AS A NAVAL FLIGHT SURGEON. IN VIEW OF THE FACT THAT A NAVAL FLIGHT SURGEON HAS BEEN DEFINED AS A FLYING OFFICER SINCE 1 JULY 1942 AND THEREBY REMOVED FROM THE LIMITATION ON AVIATION PAY APPEARING IN THE NAVAL APPROPRIATION ACT, IT IS BELIEVED THAT THE RULING IN DECISION B-6613 OF 17 NOVEMBER 1939 IS NO LONGER APPLICABLE. IN THIS CONNECTION IT IS POINTED OUT THAT A MEDICAL OFFICER WHO IS DESIGNATED AS A STUDENT NAVAL FLIGHT SURGEON AND DETAILED TO DUTY IN ACCORDANCE WITH EXECUTIVE ORDER 9195 OF 7 JULY 1942 IS REQUIRED, WHILE UNDERGOING INSTRUCTION, TO PERFORM REGULAR AND FREQUENT AERIAL FLIGHTS. FURTHER, SUCH OFFICER IS A COMMISSIONED OFFICER UNDERGOING FLIGHT TRAINING WITHIN THE MEANING OF THE DEFINITION OF " FLYING OFFICER" AS SET FORTH IN ARTICLE 2140-2 S AND A MEMORANDUM 493. A DECISION ON THIS POINT IS REQUESTED ACCORDINGLY.

SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 368, PROVIDES IN PART AS FOLLOWS:

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 4 OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942, ISSUED PURSUANT TO THE SAID ACT, SUPRA, PROVIDES THAT---

EACH OFFICER OF THE MEDICAL CORPS OF THE ARMY OR OF THE NAVY WHO IS DULY ASSIGNED TO DUTY WITH AN AERONAUTIC HEADQUARTERS OR UNIT OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR ASSIGNED TO DUTY AT A STATION WHERE THERE IS AN AERONAUTIC UNIT, AND WHO HAS QUALIFIED AS A FLIGHT SURGEON OR AS AN AVIATION MEDICAL EXAMINER MAY BE REQUIRED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS BY THE COMMANDING GENERAL OF THE ARMY AIR FORCES OR BY SUCH OFFICER OR OFFICERS AS HE MAY DESIGNATE FOR THE ARMY, OR BY THE CHIEF OF NAVAL PERSONNEL FOR THE NAVY AND MARINE CORPS, AND ANY ORDERS FOR SUCH REQUIREMENT SHALL REMAIN IN FORCE FOR THE ENTIRE PERIOD OF SUCH ASSIGNMENT, EXCEPT AS HEREINAFTER PROVIDED IN PARAGRAPH 12.

IN DECISION OF NOVEMBER 17, 1939 (B-6613), REFERRED TO IN THE CONCLUDING PARAGRAPH OF THE ENCLOSURE, IT WAS HELD THAT A NAVY MEDICAL OFFICER ASSIGNED "FOR DUTY UNDER INSTRUCTION INVOLVING FLYING IN ATTENDANCE UPON A FAMILIARIZATION COURSE FOR FLIGHT SURGEONS" IS NOT A STUDENT AVIATOR WITHIN THE MEANING OF EXECUTIVE ORDER NO. 5865, DATED JUNE 27, 1943, ENTITLED TO THE 50 PERCENT ADDITIONAL FLYING PAY, BUT RATHER IS TO BE REGARDED FOR PAY PURPOSES AS A NONFLYING OFFICER, AND, AS SUCH, HE IS LIMITED TO THE FLYING PAY LEGALLY AUTHORIZED FOR NONFLYING OFFICERS--- $720 PER ANNUM. AT THAT TIME FLIGHT SURGEONS WERE NONFLYING OFFICERS (B- 11335, AUGUST 2, 1940); HOWEVER, THEY SPECIFICALLY WERE INCLUDED WITHIN THE DEFINITION OF FLYING OFFICERS BY A PROVISION APPEARING IN THE MILITARY APPROPRIATION ACT, 1943, 56 STAT. 612, AS FOLLOWS:

THAT, DURING THE CONTINUANCE OF THE PRESENT WAR AND SIX MONTHS AFTER THE TERMINATION THEREOF, A FLYING OFFICER AS DEFINED UNDER EXISTING LAW SHALL INCLUDE FLIGHT SURGEONS, AND COMMISSIONED OFFICERS OR WARRANT OFFICERS WHILE UNDERGOING FLYING TRAINING * * *.

SEE, ALSO, MILITARY APPROPRIATION ACT, 1944, 57 STAT. 349, AND MILITARY APPROPRIATION ACT, 1945, 58 STAT. 575. HOWEVER, THE ABOVE QUOTED APPROPRIATION ACT CONTINUED IN EFFECT THE RESTRICTION UPON THE PAY OF NONFLYING OFFICERS BY A PROVISO THAT---

* * * THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL NOT BE AVAILABLE FOR INCREASED PAY FOR MAKING AERIAL FLIGHTS BY NONFLYING OFFICERS AT A RATE IN EXCESS OF $720 PER ANNUM, WHICH SHALL BE THE LEGAL MAXIMUM RATE AS TO SUCH OFFICERS, AND SUCH NONFLYING OFFICERS SHALL BE ENTITLED TO SUCH RATE OF INCREASE BY PERFORMING THREE OR MORE FLIGHTS WITHIN EACH NINETY-DAY PERIOD, PURSUANT TO ORDERS OF COMPETENT AUTHORITY, WITHOUT REGARD TO THE DURATION OF SUCH FLIGHT OR FLIGHTS * * *.

THE SAID RESTRICTION ON THE PAY OF NONFLYING OFFICERS OF THE ARMY WAS MADE APPLICABLE TO THE NAVY BY A PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 202, THAT NONFLYING OFFICERS OF THE NAVY SHALL NOT BE PAID AT RATES IN EXCESS OF THOSE PRESCRIBED BY LAW FOR THE ARMY. SEE, ALSO, NAVAL APPROPRIATION ACT, 1945, 58 STAT. 306. IT NOW IS SUGGESTED THAT STUDENT NAVAL FLIGHT SURGEONS WHO ARE DETAILED TO DUTY INVOLVING FLYING UNDER INSTRUCTION PURSUANT TO COMPETENT ORDERS ARE "COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING" WITHIN THE MEANING OF THE PROVISO IN THE MILITARY APPROPRIATION ACT, 1943, SUPRA, AND, AS SUCH, ARE ENTITLED TO THE 50 PERCENT INCREASE IN PAY AUTHORIZED UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, RATHER THAN NONFLYING OFFICERS LIMITED TO FLIGHT PAY AT THE RATE OF $720 PER ANNUM. A SIMILAR CONTENTION, ADVANCED WITH RESPECT TO AN AVIATION MEDICAL EXAMINER OF THE ARMY ASSIGNED TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, PREVIOUSLY WAS CONSIDERED BY THIS OFFICE AND IT WAS CONCLUDED THAT THE PHRASE "COMMISSIONED OFFICER * * * UNDERGOING FLYING TRAINING" CONTEMPLATES ONLY THOSE OFFICERS UNDERGOING TRAINING AS STUDENT AVIATORS. SEE 22 COMP. GEN. 730. THE SAID CONCLUSION WAS PREDICATED, INTER ALIA, ON THE HEARINGS ON THE MATTER BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, WHICH DISCLOSE THAT THE PRIMARY PURPOSE OF THE SAID PROVISO--- ASIDE FROM THE INCLUSION OF FLIGHT SURGEONS WITHIN THE DEFINITION OF FLYING OFFICER--- WAS TO EQUALIZE THE FLYING PAY OF ARMY, NAVY, AND MARINE CORPS OFFICERS UNDERGOING FLYING TRAINING AS STUDENT AVIATORS. IN THAT CONNECTION IT WILL BE NOTED THAT, PRIOR TO THE ENACTMENT OF THE SAID PROVISO, NAVY AND MARINE CORPS OFFICERS UNDERGOING FLYING TRAINING AS STUDENT NAVAL AVIATORS WERE INCLUDED WITHIN THE DEFINITION OF FLYING OFFICER BY VIRTUE OF THE LANGUAGE CONTAINED IN SECTION 20 OF THE ACT OF JULY 2, 1926, 44 STAT. 782, AND, THEREFORE, ENTITLED TO 50 PERCENT INCREASED FLYING PAY (SEE 21 COMP. GEN. 578), WHEREAS ARMY OFFICERS UNDERGOING FLYING TRAINING AS STUDENT AVIATORS WERE NOT INCLUDED WITHIN THE STATUTORY DEFINITION OF FLYING OFFICER APPLICABLE TO THE ARMY AND, THEREFORE, RESTRICTED TO THE INCREASED FLYING PAY AUTHORIZED FOR NONFLYING OFFICERS--- $720 PER ANNUM. SEE 21 COMP. GEN. 17. THUS IT SEEMS APPARENT THAT IN USING THE PHRASE "COMMISSIONED OFFICERS * * * UNDERGOING FLYING TRAINING" IT WAS NOT THE INTENT OR PURPOSE OF THE CONGRESS TO ENLARGE THE CLASS OF FLYING OFFICERS OF THE NAVY TO INCLUDE OFFICERS--- SUCH AS STUDENT NAVAL FLIGHT SURGEONS--- THERETOFORE REGARDED AS NONFLYING OFFICERS; THE SOLE PURPOSE OF THE SAID PHRASE IN THE PROVISO WAS TO INCLUDE WITHIN THE DEFINITION OF FLYING OFFICER STUDENT AVIATORS OF THE ARMY IN ORDER TO EQUALIZE THE PAY OF OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS UNDERGOING TRAINING AS STUDENT AVIATORS. ACCORDINGLY, IN ANSWER TO QUESTION 3, IT MUST BE CONCLUDED THAT SINCE STUDENT NAVAL SURGEONS ARE NOT UNDERGOING FLYING TRAINING AS STUDENT NAVAL AVIATORS, THEY ARE NOT ENTITLED TO INCREASED FLYING PAY UNDER SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942.

WITH RESPECT TO QUESTIONS (1) AND (2), IT APPEARS THAT IN THE SPECIFIC CASE PRESENTED, HARRY H. ROSENTHAL, MC-V (G), USNR, GRADUATED FROM THE NAVY SCHOOL OF AVIATION MEDICINE ON MARCH 7, 1942, WITH THE DESIGNATION OF AVIATION MEDICAL EXAMINER; THAT HE WAS DETAILED TO DUTY INVOLVING FLYING BY BUREAU OF NAVAL PERSONNEL ORDERS DATED FEBRUARY 13, 1943; AND THAT HE WAS DESIGNATED A FLIGHT SURGEON EFFECTIVE JULY 20, 1943, BY BUREAU OF NAVAL PERSONNEL ORDERS DATED JULY 29, WHICH ORDERS WERE NOT RECEIVED BY HIM UNTIL DECEMBER 22, 1943. ALSO, IT IS STATED THAT DURING THE PERIOD JULY 20 TO DECEMBER 22, 1943, THE OFFICER MET THE FLIGHT REQUIREMENTS PRESCRIBED FOR FLYING OFFICERS BY PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195, DATED JULY 7, 1942.

IT HAS BEEN A RULE OF LONG STANDING THAT AN OFFICER MAY NOT BE REGARDED AS DETAILED TO OR ON DUTY REQUIRING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS SO AS TO ENTITLE HIM TO 50 PERCENT INCREASED FLYING PAY UNTIL SUCH TIME AS HE IS RATED A FLYING OFFICER AND RECEIVES NOTICE OF HIS DETAIL OR ASSIGNMENT TO PARTICIPATE IN AERIAL FLIGHTS AND ENTERS UPON DUTY PURSUANT THERETO. 2 COMP. GEN. 370; 21 MS COMP. GEN. 438, MAY 11, 1923, TO THE SECRETARY OF THE NAVY; A-11921, MAY 4, 1926.

AN AVIATION MEDICAL EXAMINER OR STUDENT NAVAL FLIGHT SURGEON DOES NOT BECOME A "FLYING OFFICER" FOR PURPOSE OF THE 50 PERCENT INCREASED FLYING PAY UNTIL HE BECOMES A FLIGHT SURGEON AND, EVEN THEN, HE IS NOT ENTITLED TO SUCH INCREASED FLYING PAY UNLESS HE COMPLIES WITH THE PROVISIONS OF SECTION 18 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WHICH REQUIRES AN ASSIGNMENT OR DETAIL TO DUTY REQUIRING PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS AND ACTUAL PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS AND ACTUAL PARTICIPATION THEREIN UNDER SUCH DETAIL OR ASSIGNMENT.

A NONFLYING OFFICER--- SUCH AS AN AVIATION MEDICAL EXAMINER--- WHO PARTICIPATES IN AERIAL FLIGHTS PURSUANT TO ORDERS OF COMPETENT AUTHORITY IS ENTITLED TO FLYING PAY AT A RATE NOT IN EXCESS OF $720 PER ANNUM UPON PERFORMANCE OF THREE OR MORE FLIGHTS WITHIN EACH 90-DAY PERIOD REGARDLESS OF THE DURATION OF SUCH FLIGHTS, WHEREAS A FLYING OFFICER--- SUCH AS A FLIGHT SURGEON--- IS REQUIRED TO MEET THE MORE STRINGENT FLIGHT REQUIREMENTS PRESCRIBED BY PARAGRAPH 10 OF EXECUTIVE ORDER NO. 9195 FOR FLYING OFFICERS. OBVIOUSLY, THE LAW AND EXECUTIVE REGULATIONS DO NOT CONTEMPLATE THE RECOGNITION DURING THE SAME PERIOD OF AN ALTERNATE OR DUAL STATUS AS A FLYING AND NONFLYING OFFICER DEPENDING UPON WHETHER THE REQUIRED NUMBER OF FLIGHTS ARE OR ARE NOT PERFORMED DURING SUCH PERIOD IN ONE OR THE OTHER CAPACITY. IN OTHER WORDS, IF AN OFFICER IS DETAILED TO DUTY INVOLVING REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS AS A FLYING OFFICER AND FAILS TO MEET THE MORE STRINGENT FLIGHT REQUIREMENTS APPLICABLE TO FLYING OFFICERS, BUT FULFILLS THE MINIMUM REQUIREMENTS APPLICABLE TO NONFLYING OFFICERS HE WOULD NOT BE ENTITLED TO THE $60 PER MONTH FLYING PAY AUTHORIZED FOR NONFLYING OFFICERS. ALSO, A RULE REQUIRING A NONFLYING OFFICER TO MEET THE MINIMUM FLIGHT REQUIREMENTS PRESCRIBED FOR FLYING OFFICERS PRIOR TO THE DATE OF RECEIPT OF THE ORDER ANNOUNCING HIS DESIGNATION AS A FLIGHT SURGEON WOULD OPERATE TO AFFECT HIS VESTED RIGHT TO THE $60 PER MONTH FLYING PAY EARNED AS A NONFLYING OFFICER DURING THE INTERVENING PERIOD BETWEEN THE DATE OF THE ORDER DESIGNATING HIM A FLIGHT SURGEON AND THE DATE OF ITS RECEIPT. MANIFESTLY, A RULE WHICH WOULD DEPRIVE SUCH NONFLYING OFFICERS OF THEIR RIGHT TO THE SAID $60 PER MONTH FLYING PAY WOULD NOT BE IN CONSONANCE WITH THE INTENT AND SPIRIT OF THE LAW AND EXECUTIVE REGULATIONS. HENCE, SINCE THE SETTLED RULE HEREINBEFORE REFERRED TO--- THAT AN OFFICER IS NOT DETAILED TO OR ON DUTY REQUIRING PARTICIPATION IN REGULAR AND FREQUENT AERIAL FLIGHTS UNTIL HE IS RATED A FLYING OFFICER AND RECEIVES NOTICE OF SUCH RATING, DETAIL OR ASSIGNMENT AND ENTERS ON DUTY THEREUNDER--- AVOIDS THE POSSIBILITY OF DEPRIVING A NONFLYING OFFICER OF THE $60 PER MONTH FLYING PAY WHICH HE OTHERWISE MAY HAVE BEEN ENTITLED TO RECEIVE, THE REASON FOR SUCH RULE BECOMES MORE EVIDENT AND IT REASONABLY MAY NOT BE WAIVED IN A PARTICULAR INSTANCE, SUCH AS THE PRESENT CASE, SOLELY BECAUSE IT SUBSEQUENTLY DEVELOPS THAT THE OFFICER PERFORMED SUFFICIENT FLIGHTS AFTER THE DATE OF HIS DESIGNATION AS FLIGHT SURGEON, BUT PRIOR TO RECEIPT OF NOTICE THEREOF, TO HAVE ENTITLED HIM TO THE 50 PERCENT INCREASED FLYING PAY AUTHORIZED FOR FLYING OFFICERS.

ACCORDINGLY, IN ANSWER TO THE FIRST TWO QUESTIONS PRESENTED, I HAVE TO ADVISE THAT (1) INSOFAR AS THE 50 PERCENT INCREASED FLYING PAY IS CONCERNED, THE EFFECTIVE DATE OF A MEDICAL OFFICER'S DESIGNATION AS A NAVAL FLIGHT SURGEON MUST BE CONSIDERED AS THE DATE NOTICE OF SUCH DESIGNATION IS RECEIVED BY THE OFFICER; AND THAT (2) LIEUTENANT ROSENTHAL IS ENTITLED TO THE 50 PERCENT INCREASED FLYING PAY ON AND AFTER DECEMBER 22, 1943, THE DATE OF RECEIPT OF NOTICE OF HIS DESIGNATION AS A FLIGHT SURGEON, ASSUMING, OF COURSE, THAT AFTER SAID DATE HE OTHERWISE MET THE FLIGHT REQUIREMENTS PRESCRIBED FOR FLYING OFFICERS.