
    GEORGE C. MATTESON v. THE UNITED STATES
    [No. A-334.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Navy pay; aviation duty; extra pay; continuation of detail. — Where an officer is detailed for aviation duty and while so detailed is also assigned to temporary recruiting duty, and while on such recruiting duty, which is of secondary importance, he continues to make aeroplane flights, he is entitled to receive the 50 per cent increase for aviation duty provided by the act of March 3, 1915, 38 Stat. 939, 940.
    
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King <& King were on the brief.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General 'William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff, George C. Matteson, having enrolled in the United States Naval Eeserve Force for a period of four years, was on March 23, 1918, given a provisional appointment as ensign, class 5, United States Naval Eeserve Force, for general service. He was assigned to duty at the naval air station at Pensacola, Fla., and on March 23, 1918, he was, by competent orders, appointed a naval aviator for duty involving actual flying in aircraft.
    On September 30, 1919, he was given the provisional rank of lieutenant, junior grade, class 5, to date from April 1, 1919, and on October 13, 1919, he executed the oath of office as lieutenant, junior grade. On May 7, 1921, he was given a confirmed commission as lieutenant, junior grade, United States Naval Eeserve Force, class 5, for general service, to rank from October 13, 1919, and on May 26, 1921, he executed the oath of office under his confirmed commission. On October 16, 1921, he was notified to appear before the Naval Eetiring Board at Washington, D. C., on October 31, 1921, and was thereafter transferred to the retired list of officers of the Eeserve Force from December 5, 1921.
    
      II. While in the performance of his duty at the Naval Air Station, Pensacola, Fla., he was, on September 8, 1919, ordered to proceed to the Navy Recruiting Station, Atlanta, Ga., for temporary duty in connection with aviation recruiting. January 8, 1920, by similar orders, both signed by the Chief of the Bureau of Navigation, Navy Department, he was ordered to report to another recruiting inspector at Pensacola for recruiting duty, being informed by each order “ Your designation as naval aviator remains in force.”
    He complied with these directions and performed such temporary recruiting duty. He also under proper orders made flights in aircraft at various times during the months of September and November, 1919, and January, 1920. He continued on this temporary recruiting duty from September 19, 1919, to January 27, 1920.
    The Chief of the Bureau of Navigation certified March 13, 1920, that the bureau considered his paramount duty during that period to be that of an officer detailed to duty involving actual flying in aircraft and his recruiting duty as of a secondary nature. The court so finds.
    III. He at first received 50 per cent additional pay as detailed to duty involving actual flying in aircraft from September 19, 1919, to the end of October, 1919, but the amount was later checked against his account.
    If entitled to 50 per cent additional pay for aviation duty during the period from September 19, 1919, to January 27, 1920, he would receive $348.34.
    The court decided that plaintiff was entitled to recover.
   MEMORANDUM BT THE COURT

The plaintiff is entitled to 50 per cent increase in pay for aviation duty under the case of Lushey, 56 C. Cls. 411, affirmed 262 U. S. 62, and the defendant makes no contention as to this feature of the case.

The defendant gave notice that it would assert a counterclaim “ for illegal and improper payment to the plaintiff of the difference between the pay of an ensign and the pay of a lieutenant, junior grade, during the period from April 1, 1919, to May 7, 1921, in the sum of $753,” and now asks judgment in its favor “for the difference between the amount of said counterclaim and the amount found due the plaintiff for 50 per cent additional pay as aviator between September 19, 1919, and January 2Y, 1920, with costs taxed against the plaintiff.”

We need not discuss the theory upon which defendant’s counterclaim is asserted, for the reason that there is an absolute failure of necessary proof. The court can not assume that payments alleged to have been “ illegal and improper ” were made to the plaintiff. No payments are proven.

Geaham, Judge, took no part in the decision of this case.  