After issuance by the President of Army Regulation 1269 1/2, an
officer of flying status assigned to the War College, as a student,
by order of the Secretary of War, was required by that regulation
to participate regularly and frequently in aerial flights, and was
therefore entitled to extra pay under § 13a of the Army
Reorganization Act; but prior to the date of that regulation it was
otherwise, since the officer, even though he took regular flights,
was not required to do so, being relieved from the Air Service
regulation in that regard by the order of the Secretary assigning
him to the War College.
60 Ct.Cls. 825 reversed.
Certiorari to a judgment of the Court of Claims dismissing a
petition for extra pay.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Plaintiff brought this action to recover increase of pay from
August 15, 1921, to June 30, 1922, under the Army Reorganization
Act of June 4, 1920, § 13a, c. 227, 41 Stat. 759, 768. The Court of
Claims made findings of fact, held him not entitled to recover and
dismissed the petition.
Plaintiff brought this action to recover increase of pay from
August 15, 1921, to June 30, 1922, under the Army Reorganization
Act of June 4, 1920, § 13a, c. 227, 41 Stat. 759, 768 That section
provided that officers and enlisted men of the army should receive
an increase of 50 percentum of their pay while on duty requiring
them to participate regularly and frequently in aerial flights.
Plaintiff was a lieutenant colonel in the Air Service, and was
rated as an airplane pilot. For some time prior to August 15,
Page 271 U. S. 316
1921, he was assigned to duty which required him to participate
regularly and frequently in aerial flights, and up to that date, he
received the increase of pay allowed for that service. August 9,
1921, the Secretary of War Issued a special order that plaintiff be
relieved "from his present assignment and duties" and that, on
August 15, 1921, he report to the commandant, General Staff War
College, for duty as a student officer. Plaintiff complied, and
remained on duty as a student officer from that date to June 30,
1922. While there, he performed a number of flights in each month,
131 in all.
Paragraph 1575 of the Army Regulations charges the Chief of Air
Service, under direction of the Secretary of War, with command of
the Air Service, both staff and line, and with its management,
including the regulation of the duties of officers and others who
may be employed under his direction, excepting such persons as may
be specifically detached by the order of the Secretary of War.
December 2, 1920, a circular letter was issued by the Chief of Air
Service to the commanding officers of all air stations. It was
there stated that he considered that any officer holding a flying
rating was on duty which required his participation in regular and
frequent flights, no matter what the nature of that duty might be.
December 31, 1921, after the controversy culminating in this suit
arose, the President issued a regulation (paragraph 1269 1/2, Army
Regulations) requiring all officers of the Air Service who are
rated as pilots of airplanes or airships and on a duty status to
participate regularly in aerial flights as pilots whenever flying
facilities are available.
The United States concedes that, after the taking effect of that
regulation, plaintiff was on a duty status requiring him to
participate regularly and frequently in flights, and that he was
entitled to have the increase of pay given by the Act of June 4,
1920.
Page 271 U. S. 317
It remains to be considered whether he was entitled to the
increase of pay from August 15 to December 31, 1921. The findings
sufficiently show that he actually took frequent and regular
flights during that period, but there is no finding that he was
required to do so. Paragraph 1575 of the Army Regulations expressly
excepts from the command of the Chief of the Air Service such
persons as may be specifically detached by order of the Secretary
of War. The plaintiff was so detached by the order of August 9,
1921. It follows that the circular letter of December 2, 1920, did
not apply to him while on duty as a student officer at the General
Staff War College. During that time, he was not subject to the
orders or regulations of the Chief of the Air Service, and
undoubtedly that was the reason the President made the regulation
of December 31, 1921.
The facts found are not sufficient to show that plaintiff was on
duty requiring him to participate in the flights which he actually
took prior to that regulation. It does not appear that he would
have been subject to military discipline if he had not taken the
flights. In the absence of such finding, he is not entitled to
recover increase of pay for that period. But the regulation of
December 31, 1921, did require him to take such flights, and, as
conceded by the United States, he is entitled to recover such
increase for the period between that date and June 30, 1922.
Judgment reversed.