
    HARRY B. LYNCH v. THE UNITED STATES
    [No. C-1065.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Navy yay; aviation duty; flights required Toy current regulations.— Where an aviation chief machinist’s mate of the Navy, regularly detailed .to duty involving flying, makes the number of flights required by Executive order administering the act of Congress granting increase of pay to officers, warrant officers, and enlisted men detailed to duty involving flying, and in accordance with the prevailing customary method of compliance with the regulations, he is entitled to the statutory increase in pay and can not be deprived of the same because his flights were not in accordance with regulations issued thereafter.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. Mr. Cornelius H. Bull and. King c& King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff, Harry B. Lynch, was, during the period covered by this claim, an aviation chief machinist’s mate on duty at the naval air station, Pensacola, Fla. An aviation chief machinist’s mate is a petty officer of the Navy, a machinist fitted by special qualifications and training for aviation duty.
    The following order was issued by the commanding officer at the United States Naval Air Station, Pensacola, Fla., J anuary 1, 1921:
    “From: Commanding Officer.
    “ To: Bureau of Navigation.
    “ Subject: Aviation Designation of Lynch, Harry Burr,
    Cmm. (A), U. S. Navy (438-20-17).
    “ 1. I have this day detailed the above-named man for duty involving actual flying in aircraft, including dirigibles and airplanes, in accordance with the acts of Congress approved March 3, 1915, and August 29, 1916.
    “Approval of this detail is requested.
    “2. Enlistment expires April 22, 1923.
    “ G. F. BrowN, Acting.”
    
      On which was indorsed the following:
    “ From: Secretary of the Navy.
    “ To: Bureau of Navigation.
    
      “ 1. Approved.
    “ From: Bureau of Navigation.
    “To: Commanding Officer, Naval Air Station, Pensacola, Fla.
    
      “ 1. Returned approved.
    “ 2. In case of discharge or revocation of appointment, the bureau will be immediately notified, and special report will be made to bureau when man is transferred.
    
      “ E. D. LtjNdbeRG.
    “ By direction. Q.”
    II. July 1, 1922, the President of the United States promulgated regulations in execution of the provisions of section 20 of the act of June 10, 1922, 42 Stat. 632, 633, the material portion of which is as follows:
    “ 9. Each officer, warrant officer, or enlisted man of the Army, Navy, Marine Corps, or Coast Guard, who is detailed to duty involving flying shall be required to make at least ten flights or be in the air a total of four hours during each calendar month; provided that an officer, warrant officer, or enlisted man so detailed who is unable to meet these requirements during any calendar month for any reason other than sickness or injury shall be regarded as having met them if he performs a minimum of twenty flights or is in the air a minimum of eight hours prior to the end of the following calendar month; provided further, that an officer, warrant officer, or enlisted man so detailed, who is unable to meet this alternative requirement for any reason other than sickness or injury, shall be regarded as having met the requirements if he performs a minimum of thirty flights or is in the air a minimum of twelve hours prior to the end of the calendar month thereto succeeding. Failure to comply with the foregoing requirements shall have the effect of suspending the detail to duty involving flying, but only for the period during which the foregoing requirements as to flights are not complied with; * *
    III. Following this Executive order of July 1,1922, there was issued a station notice at the United States Naval Air Station, Pensacola, Fla., under date of July 25, 1922, the material part of which is as follows:
    
      “ STATION NOTICE
    “ U. S. Naval Air Station,
    “ Pensacola, Florida, 25 July, 1922.
    
    “ The following is published for the information and guidance of all concerned:
    “ The following shall be known as Section ‘ F ’ of the instructions for carrying into eifect the joint service pay bill, act of 10 June, 1922.
    ‡ ‡ ‡ ‡
    “2. (a) The Executive order * * * embodying the regulations required by section 20 of the act * * * has
    as its underlying principles:
    “(a) That an officer, warrant officer, or enlisted man, assigned to duty in the aeronautic organization of the Navy, or whose duty includes flights in aircraft, must be detailed to duty involving flying.
    “ (b) That he must fly to be entitled to pay.
    
      % # # % Jfc
    “ (d) Relative to (b) ‘ That an officer, warrant officer, or enlisted mm must fly to he entitled to fay? It is evident that Congress intended the increased pay for flying as a compensation for the risk incurred by reason of flying, and therefore a minimum amount of flying is required to entitle a person, within his detail to duty involving flying, to the increase in pay and this minimum is the same for all personnel.
    & ifc %
    
    
      “ 8. (b) Existing orders, designations, or appointments, and details to duty involving flying shall remain in eifect after 1 July, 1922, until superseded by further assignments, designations, or appointments, hut the flights requirements prescribed hy paragraph 9 [Executive order of July 1, 1922, supra] are effective from 1 Jul/y, 1922.
    
    “ 4. (a) Details to duty involving flying continue in effect during the entire period of assignment to duty with any part of the aeronautic organization of the Navy in the case of student and qualified personnel and for the period of duty including flights in aircraft in the case of others. The date of detail to duty involving flying, and the date of termination of it, mark the period during which flight pay may be credited; therefore if the flight requirements (par. 9) are met for the month in which the detail is made, flight pay is due from the date of detail to the end of that month. Similarly, if the flight requirements are met up to and including the month in which the detail is terminated flight pay is due from the first of such month to and including the date of termination of the detail.
    “ 5. (a) Paragraph 9 makes obligatory a minimum amount of flying as follows:
    “Ten (10) flights, or four (4) hours in the air in one calendar month;.or
    “ Twenty (20) flights, or eight (8) hours in the air in two (2) consecutive calendar months; or
    “Thirty (30) flights, or twelve (12) hours in the air in three (3) consecutive calendar months.
    “ The normal flight requirement is ten (10) flights, or four (4) hours in the air each calendar month, and, therefore, the alternative two or three months’ period in which the flight requirements are permitted to be met must begin with the first month in which the flight requirements are not met. The following explanations and effects of suspension of detail to duty involving flying are all premised on this basis.
    ❖ ❖ ❖ iji * „ , Jfc
    “ 6. (b) Commencing with 1 July, 1922, commanding officers of all naval aeronautic organization ur>’is will require that each officer, warrant officer, and enlisted man under his command who is detailed to duty involving flying, accurately maintain an ‘Aviators’ Flight Log Book.’ In the column headed ‘ Flight Number ’ each actual flight will be entered, i. e., the interval between leaving the ground or water and again coming to rest will be counted as a flight and each such flight shall be entered separately with the date and duration, etc. At the end of each calendar month, or upon detachment of the officer or enlisted man concerned, the commanding officer shall bring the ‘Aviators’ Flight Log .Book ’ of each individual into agreement with the Official Aircraft Log Books and will place the following certificate immediately after the last entry in each ‘Aviators’ Flight Log Book ’: ‘ I certify that the foregoing flight record is correct.’ And he shall sign his name and rank.”
    IY. July 10, 1922, plaintiff made one flight occupying a period of one hour. July 26, 1922, plaintiff left the beach in a plane, left the water, flew in horizontal flight, descended, lit on the water, landed, took off, and repeated this ten times.
    August 4, 1922, plaintiff was out for a period of one hour, leaving the beach, taking to the air, flying, landing, taking-off again, and repeating the same as in the month of July, ten times. August 16, 1922, one flight of 1 hour and 15 minutes.
    September 12, 1922, plaintiff was out flying for 55 minutes, making nine hops of 5 minutes and one of 10 minutes. These flights were made like those of the two previous months, leaving the beach, taking the water, taking the air, and returning to rest upon the water, and repeating this ten times.
    Concerning these flights the senior squadron commander at the Naval Air Station, Pensacola, Fla., reported to the commandant, January 31, 1924-, as follows:
    
      “ From: Senior squadron commander.
    “ To: Commandant.
    “ Subject: In re paragraphs 1 to 4, inclusive, of attached correspondence in case of Lynch, H. B., A. C. M. M., U. S. N.
    “ 1. During the month of July, 1922, the claimant made two flights, July 10th and July 26th, of one hour each. One flight was made August 4, 1922, of one hour; and one flight on August 16, 1922, of one hour fifteen minutes. One flight on September 12, 1922, of fifcy-five minutes.
    “ 2. These flights were revised as follows:
    “ The flight made July 26, 1922, was originally ten (10) flights; nine (9) of these flights for a duration of five (5) minutes each, and the tenth flight for a duration of fifteen (15) minutes. All these flights were combined and considered as one (1).
    “ The flight made on August 4, 1922, was originally composed of nine (9) five (5) minute flights and one (1) fifteen minute flight; these flights were combined to make one flight of one hour. There was no revision of flight made on September 12, 1922.
    “ 3. It is not within jurisdiction of senior squadron commander to issue flight certificates; all flight certificates are issued and signed by the commandant of the station.
    “ 4. It is believed that the commandant did not issue flight certificate for month of September, 1922, for the reason that claimant did not comply with orders issued by the Bureau of Navigation giving requirements of flights which entitled the claimant to extra compensation.
    “ W. Masbk.”
    And on this report Capt. H. H. Christy, United States Navy, indorsed to the Chief of Bureau of Navigation, Navy Department, Washington, D. C., March 6, 1924, the following:
    
      “ Subject: Harry Burr Lynch, A. C. M. M., U. S. N.
    (182-27-16) re information concerning flight pay of.
    “ 1. Forwarded. The original flight certificates for July and August, 1922, were of the form that had been in use previously and stated that the person concerned had met the flight requirements of existing orders. Then, in the latter part of September, 1922, as I recall it, a new form of flight certificate was sent out by the Navy Department, much more in detail and far more exacting, which required the commanding officer to certify that each flight was for a specific official purpose. The instructions accompanying the new form of certificate required that the new certificates be issued for the preceding July and August, and the old one canceled. In order to carry out these instructions correctly a board of officers was ordered to investigate the character of all flights for July, August, and September.
    “ 2. In issuing the new flight certificates I was guided by the findings of this board which carried out its duties in accordance with the spirit and letter of the new instructions. In almost all cases where new certificates were denied, the action was based on the fact that a flight was broken up into a series of short hops, whereas the purpose of the flight would have been accomplished equally well without the intervening landings, and it would naturally have been performed as one flight in order to accomplish the purpose desired.
    “ 3. It will be noted that the instructions received in the latter part of September applies to the period beginning the preceding July 1st. It was this retroactive feature that complicated the situation and resulted in denying new flight certificates to a number of men who had met the requirements existing at the time the flights were made.
    “ H. H. Christy.”
    Concerning plaintiff’s service at the United States naval station, Pensacola, Fla., the commandant of said station reported to the Chief of Bureau of Navigation, Navy Department, October 25, 1923, as follows:
    “ STATEMENT OF SERVICES AND FLIGHT DUTY
    “Subject: Lynch, Harry Burr; #182-27-16, A. C. M. M., U. S. N.
    “Reference: (a) Bu. Nav. letter N-64-21, dated 18 October, 1923.
    “ Enclosure (A) : Flights performed by Lynch, H. B., A. C. M. M., U. S. N.
    “ 1. In accordance with reference ‘ a,’ the following is submitted : Lynch, H. B., A. C. M. M., U. S. N., enlisted in the U. S. Navy at Pensacola, Florida, on 23 April, 1919, and was given flight orders as or this date. On May 13, 1919, this man was transferred to Rio de Janiero, Brazil, for duty with the Brazilian mission, naval aviation. His flight orders on this station were revoked as of that date.
    “ 2. On 30 December, 1920, Lynch reported at the naval air station, Pensacola, Florida, for duty. On January 1, 1921, Lynch was issued flight orders, which are still in effect.
    “ 3. Previous to July 1,1922, it was not the custom to keep flight log for enlisted men other than pilots. The inclosed flights were gleaned from the rough logs available at this station.”
    Y. Plaintiff’s account was credited with $126 flying pay for the period from July 1,1922, to August 31, 1922, and the said amount was subsequently checked against his account in the second quarter of 1923. He was never paid or credited with flying pay for the month of September, 1922.
    If the plaintiff is entitled to 50 per cent additional pay for flying during the period from July 1, 1922, to September 30,
    1922, there would be due him the sum of $207.90 as per the following statement: 50 per cent additional pay as aviation chief machinist’s mate at $138.60 per month from July 1, 1922, to September 30, 1922, 3 months at $69.30 per month.
   The court decided that plaintiff was entitled to recover.

Moss, Judge,

delivered the opinion of the court:

The plaintiff, Harry B. Lynch, was, during the period involved in this action, an aviation chief machinist’s mate on duty at the naval air station, Pensacola, Florida. An aviation chief machinist’s mate is a machinist specially trained and qualified for aviation duty.

Prior to July 1, 1922, plaintiff was detailed for duty involving actual flying.

The act of Congress of June 4, 1920, 41 Stat. 768, provides as follows: “ Officers and enlisted men of the Army shall receive an increase of 50 per centum of their pay while on duty requiring them to participate regularly and frequently in aerial flights; and hereafter no person shall receive additional pay for aviation duty except as prescribed in this section.”

By section 20 of the act of Congress of June 10, 1922, 42 Stat. 632, 633, the 50% increase in pay was extended to “ all officers, warrant officers, and enlisted men of all branches of the Army, Navy, Marine Corps, and Coast Guard, when detailed to duty involving flying * *

Pursuant to the authority conferred by said act the President on July 1, 1922, promulgated regulations for the administration of said act, in which it is provided: “ Each officer, warrant officer, or enlisted man of the Army, Navy, Marine Corps, or Coast Guard, who is detailed to duty involving flying, shall be required to make at least ten flights, or be in the air a total of four hours during each calendar month * *

In the months of July and August, 1922, plaintiff made flights in Government air craft, and there were issued to him certificates by the senior squadron commander approved by the commandant of the naval air station showing proper compliance with the established requirements, and was paid therefor 50% of his pay, which amounted to $69.30 per month, or a total for the two months of $138.60.

In the early part of the month of September plaintiff made certain flights, corresponding both in number and in character of performance with the service rendered in July and August. No certificate was issued for that month and plaintiff has had no pay for same.

In the latter part of September, 1922 (the date is not shown in record), new instructions were issued by the Navy Department more exacting in their requirements, under the terms of which, as construed by the Navy authorities, plaintiff was not entitled to receive flight certificates. Furthermore, the new instructions or regulations were made applicable to the period beginning July 1. At a subsequent date plaintiff was required to repay the amount theretofore received by him for the months of July and August. It is conclusively shown that for the period covered by plaintiff’s claim his services met the requirements of the existing regulations.

In accomplishing these flights, which were routine test flights, the plaintiff left the beach in the plane, left the water, flew in a horizontal flight, descended, alighting on the water, landed, took off and repeated the performance ten times. This was the customary method of compliance with the regulations in force from July 1, 1922, until the later regulations issued in the latter part of September, 1922, and the services of plaintiff in the performance of his flying duties were rendered in accordance with that method and accepted by the senior squadron commander and approved by the commandant of the naval air station as complying with the regulations.

It was the intention of Congress to provide extra pay for men detailed to flying service to compensate, in a measure, for the extra hazard of that service. The correctness of this principle was explicitly recognized by the following statement contained in what is called a station notice promulgated by the United States Naval Air Station at Pensacola, Florida, on July 25: “It is evident that Congress intended the increased pay for flying as a compensation for the risk incurred by reason of flying, and therefore a minimum amount of flying is required to entitle a person within his detail to duty involving flying, to the increase in pay, and this minimum is the same for all personnel.” This notice was published for the information and instruction of all persons connected with flying operations at that station.

The court is of the opinion that the new instructions or requirements issued in the latter part of September, 1922, are invalid so far as they are made to relate to the service rendered by plaintiff under' the orders and instructions existing at that time.

It is the judgment of the court that plaintiff recover herein the sum of $201.90. And it is so ordered.

Graham, Judge; Hay, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  