
    LELAND D. BRADSHAW v. THE UNITED STATES
    [No. D-322.
    Decided November 16, 1926]
    
      On the Proofs
    
    
      Aviation pay increase; warrant officer of Army. — Section 13a of the act of June 4, 1920, providing for increase in pay of certain “ officers and enlisted men ” of the Army, applies to a warrant officer.
    
      Same; announcement of ftyiny status. — Where a warrant officer has been detailed by a valid order to duty requiring him to participate regularly and frequently in aerial flights, subsequent orders and revocations of orders which merely “announce ” his flying status but do not change his duties, do not affect his right to pay under section 13a of the act of June 4, 1920.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. King & King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney Generad Herma/n J. Galloway, for the defendant.
    
      The court made special findings of fact, as follows:
    I. Plaintiff, Leland D. Bradshaw, was prior to August 27, 1921, a master sergeant in the United States Army. On that date there was issued to him from headquarters, Langley Field, Va., the following order:
    “I. Warrant Officer Leland D. Bradshaw, U. S. A., having reported for duty in compliance with letter of instructions from The Adjutant General’s Office, Washington, August 17,1921, is attached to the headquarters detachment, 2d wing, for purposes of record, and assigned to duty in the engineering department. He will report to the Engineer officer for instructions.
    “ By order of Lieut. Col. Danforth.
    “T. S. Voss,
    
      “Captain, Air Service, Adjutants
    
    During the time covered by this claim plaintiff was a warrant officer in the United States Army.
    II. By Special Orders, No. 217, headquarters, Langley Field, Ya., September 27, 1921, plaintiff was “ announced as on duty requiring regular and frequent participation in aerial flights, effective August 27, 1921.” Plaintiff was assigned to duty in the aero repair engineering department, consisting of the aero repair and machine shop, his duties being to overhaul the motors and planes, test them after being overhauled, and turn them back to their respective squadrons. Plaintiff was in charge of these repairs. If a plane came in to be overhauled, he instructed the men and mechanics to overhaul it, told them what to do, and after it was ready to be flown would take it up and test it. If it worked, it would be assigned to the squadron to which it belonged. If it did not, plaintiff would have other work done on it until .it was in shape to be assigned. After an airplane was overhauled it had to be test flown before it was turned back to the squadron to which it belonged, and as in charge of aero repairs plaintiff had to make these test flights.
    There was no change in the character of duties plaintiff performed, as above set forth, any time during the period covered by this claim, and in connection with his duties and as a part thereof he was required to and did participate regularly and frequently in aerial flights between September 13, 1921, and June 28, 1923. There was an ofñcial record of these flights entered at Langley Field.
    III. October 22, 1921, plaintiff wrote to the Adjutant General of the United States Army through official channels as follows:
    “Subject: Flying status:
    “ 1. Under the provisions of paragraph 1269% A. R., C. A. S., 107, July 22, 1920, request that I be announced in orders from the War Department as on duty requiring me to participate in regular and frequent aerial flights effective August 27th, 1921.
    “ 2. I am attached to the Air Service and assigned to duty at this post as assistant to the engineering officer and in charge of the aero repair. My duties as such require me to make regular and frequent aerial flights in connection with the testing of airplanes.
    “3. I held an emergency commission in the Air Service and now hold the rating of airplane pilot per par. 1, Personnel Order 7, Office Chief of Air Service, January 9,
    1920.”
    On this letter the lieutenant colonel commanding at Langley Field placed the following indorsement:
    “ 1. Recommending approval.
    “ 2. Mr. Bradshaw is thoroughly competent airplane pilot and his duties at this station are such as to require him to participate in aerial flights, as he is called upon to test airplanes after overhauling in his aero repair.”
    And on the same letter the chief of the personnel division, War Department, placed the following indorsement:
    “War Department, O. C. A. S., Washington, Oct. 25, 1921. To the commanding officer Langley Field, Hampton, Yirginia.
    “While it might be possible to place this warrant officer on flying status, still under the terms of the last appropriation act flying pay is only available for officers and enlisted men of the Air Service. It is not believed that this would Include warrant officers, so that it is not advisable to put on flying status this officer when funds are not available for such duty.
    “ By direction of the Chief of Air Service.”
    On October 31, 1921, plaintiff’s letter of October 22, 1921, with the indorsements above referred to thereon, was returned to him for his information.
    
      IV. October 31, 1921, Special Orders, No. 247, was issued from headquarters, Langley Field, Va., an extract from which is as follows:
    “9. Paragraph 4, Special Orders, No. 217, these headquarters, dated September 27, 1921, detailing Warrant Officer Leland D. Bradshaw, U. S. A., on flying duty is hereby revoked.”
    August 18, 1922, there was issued by order, of the Chief of Air Service, Washington, D. C., Personnel Orders No. 168, extract from which is as follows:
    “ 6. Pursuant to General Order No. 30, War Department, 1922, the detail to duty involving flying, effective July 1, 1922, of Warrant Officer Leland D. Bradshaw, attached to the Air. Service, who is a qualified aircraft pilot, and is fit for duty as such, and who was on duty requiring regular and frequent participation in aerial flights on June 30, 1922, and has been on such duty since that date, is confirmed, an emergency having existed that prevented the issuance of this order on that date.”
    The following Personnel Orders, No. 194, was issued by the Chief of Air Service September 22, 1922:
    “9. Pursuant to decision of the Comptroller General, September 6, 1922, to the Honorable Secretary of the Navy, warrant officers are not entitled to the extra pay incurred, due to flying duty. In compliance therewith, par. 6, Personnel Order. No. 168, Office Chief of Air Service, August 18, 1922, placing Warrant Officer Leland D. Bradshaw on flying status is hereby revoked, effective this date.”
    V. October 18, 1922, the finance officer informed plaintiff as follows:
    “ 1. On voucher No. 445, accounts of the undersigned for August, 1922, you were paid the sum of $162.80 for flying pay from July 1, 1922, to August 31, 1922.
    “ 2. The Comptroller General in a decision dated September 6, 1922, held as follows:
    “ ‘ Warrant officers of the Army have never been classed by statute apart from “ officers and enlisted men ” for purposes of either aviation pay or travel expenses and their duties have been such that they have been held not entitled to the increase of pay. See 1 Comp. Gen. 258J
    “ 3. You are requested to refund the sum of $162.80 to the finance officer, Langley Field, Va., for this overpayment.”
    
      In compliance with this request plaintiff refunded the $162.80.
    VI. On June 1,1928, plaintiff made a request to the Chief of Air Service as follows:
    “ 1. Under the provisions of G. O. 30, W. D. 1922, and Bulletin No. 4, W. D., March 30, 1923, ‘pay of officers ’ request that I be announced in orders from the Chief of Air Service as on duty requiring me to participate in regular and frequent aerial flights, effective July 1, 1923.
    “ 2. I am attached to the Air Service and assigned to duty at this post as assistant to the engineering officer and in charge of airplanes in the engineering department. My duties as such require me to make regular and frequent aerial flights in connection with the testing of airplanes.
    “ 3. I held an emergency commission in the Air Service and now hold the rating of airplane pilot, per par. 1, Personnel Order 7, Office Chief of Air Service, Jan. 9, 1920. I also held a reserve commission in the Air Service.
    “4. Enclosed find true copy of my last 609 examination and of flying done since I accepted appointment as warrant officer.”
    On this letter the engineering officer at Langley Field placed the following indorsement:
    “ To: Commanding officer.
    “ Recommended that Mr. Bradshaw’s request be approved. Mr. Bradshaw has been on flying duty in this department since August, 1921, and has shown himself to be an excellent pilot and one to be depended on. His duty as test pilot and emergency pilot for cross-country trouble shooting, to ships that have been found down, in my opinion warrants orders placing him on a flying status.”
    This was approved by the commanding officer at Langley Field, and on this the chief of personnel division, War Department, placed the following indorsement:
    “ 1. Reference to foregoing communication, attached hereto personnel orders announcing Warrant Officer Bradshaw on flying duty effective July 1, 1923.”
    VII. If the plaintiff is entitled to 50 per cent increase in pay due to performance of flying duty from August 27,1921, to June 30,1923, he Would be entitled to the sum of $1,609.67.
    The court decided that plaintiff was entitled to recover $1,609.67.
   Moss, Judge,

rendered the opinion of the court:

During the period involved in this action plaintiff, Leland D. Bradshaw, was a warrant officer of the Army, attached to the Air Service, as assistant to the engineering officer at Langley Field, and in charge of aero repair, a service which required him to participate regularly and frequently in aerial flights.

At the time of plaintiff’s designation as warrant officer, and his detail to the service mentioned, he was attached to the Fiftieth Squadron, Air Service, and his position was that of master sergeant.

Section 13a, act of June 4, 1920, 41 Stat. 768, provides for an increase of 50 per cent of their pay to officers and enlisted men of the Army while on duty requiring them to participate regularly and frequently in aerial flights. Plaintiff is suing to recover the extra compensation provided for in this statute for the period beginning August 27, 1921, and extending to June 30, 1923, amounting to $1,609.67.

General Order No. 65, War Department, provides that warrant officers will be assigned to tactical units, to department and corps area headquarters, etc., for clerical, administrative, and supply duties, and that they will be assigned to duty by the Adjutant General of the Army.

It is urged by defendant that plaintiff is not entitled to the increase of pay because—

“(1) He does not belong to a combatant branch of the Army;
“(2) He was never properly assigned to duty requiring regular and frequent aerial flights; and
“(3) The applicable statutes do not authorize such increase in pay.”

It may be conceded that under departmental regulation the duties of a warrant officer are, as described therein, “ clerical, administrative, and supply duties,” services which naturally belong, as the term implies, to a noncombatant branch of the Army.

But in this case plaintiff, a warrant officer, regardless of his technical status under the regulations, was detailed to a particular duty which required flying service.

To have refused the detail would have subjected him to disciplinary action. He must obey orders.

This service involved unusual hazard, and the purpose of Congress in providing for extra pay was to compensate for the hazard of the special service.

To require of plaintiff the performance of the hazardous duty, and then deny him the extra compensation, for the reason that his departmental status does not bring him within the strict letter of the statute, produces an injustice which it is not believed Congress intended.

No reason is perceived and none is suggested in support of the theory that Congress intended to reward only those of a particular departmental status, and to exclude others, although both classes are required to engage in the same hazardous enterprise.

It is fair and reasonable to assume that Congress intended by the use of the terms “ officers and enlisted men ” to include all persons in the service of the Army whose duty might require frequent and regular participation in aerial flights.

This theory is supported by the decision of the United States Supreme Court in the case of United States v. Hendee, 124 U. S. 309, 313, in which the court used the following language:

“We think the words c officers or enlisted men in the Itegular or Volunteer Army or Navy, or both,’ was intended to include all men regularly in the service in the Army or Navy, and that the expression ‘ officers or enlisted men ’ is not to be construed distributively as requiring that a person should be an enlisted man, or an officer nominated and appointed by the President, or by the head of a department, but that it was meant to include all men in service, either by enlistment or regular appointment in the Army or Navy.”

The contention that plaintiff was never properly assigned to duty requiring flying service is not sustained by the facts in the case.

As stated above, the departmental regulations provide that warrant officers will be assigned to duty by the Adjutant General of the Army.

The record shows that after plaintiff’s appointment as warrant officer there was issued to him from headquarters at Langley Field an order signed “ T. S. Voss, Captain, Air Service, Adjutant,” which recites:

“ Warrant officer Leland D. Bradshaw, U. S. A., having reported for duty in compliance with letter of instructions from The Adjutant General’s office, Washington, August 17, 1921, is attached to the headquarters detachment, 2nd wing, for the purpose of record and assigned to duty in the engineering department. He will report to the Engineer • officer for instructions.”

The authority therefore for this detail came directly from the Adjutant General’s office. This is the order that assigned him to the duty requiring flying service.

Plaintiff’s legal rights will not be affected by the issuance and the later revocation of certain orders “ announcing ” plaintiff on flying duty. It was doubtless believed by plaintiff, and by his superior officers, that a formal announcement of his status was necessary in order to entitle him to the extra pay. The effect of these orders was merely to announce a status which already existed. But the order above set out detailing him to this service was never revoked, and plaintiff’s duties were not changed in the least particular throughout the period for which he claims extra pay, by the issuance or the revocation of the so-called announcement ' orders.

Plaintiff is entitled to recover, and it is so ordered.

GRAHAM, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  