
    LEVY S. JOHNSON v. THE UNITED STATES
    [No. H-54.
    Decided March 18, 1929]
    
      Mr. George A. King for the plaintiff. Mr. Cornelius H. Bull and King <& King were on the briefs.
    
      Mr. M. C. Mmterson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
   Graham, Judge,

delivered the opinion of the court:

This is a claim of an officer of the Medical Corps for 50 per centum increase of pay for the period from May 15, 1920, to TViarch 31,1921, inclusive, during which time he was detailed to duty as a flight surgeon at Luke Field, T. H. The sum of $934.12 was paid to plaintiff but was later deducted from his pay for the reason that during the time in question there was no provision of law authorizing the payment of increased flying pay to an officer of the Medical Corps. Plaintiff is suing to recover said sum.

The claim arises under the acts of'June 4, 1920, 41 Stat. 769, and June 30, 1922, 42 Stat. 724.

The findings show that plaintiff was in fact on duty requiring regular and frequent aerial flights. It was his duty when engaged in aerial flights to observe the pilot’s mental and physical condition and report to the commanding officer what he had observed and whether the pilot was in proper physical and mental condition to meet the monthly flying requirements of the department to maintain his flying status.

The plaintiff after his assignment performed the flights required of him during the period from June 1,1920, to March 30, 1921. The service was of a dangerous character, inasmuch as he took the chances of the inefficiency of the man whose condition he was undertaking to ascertain.

The flying service was a part of his regular duty and was not incidental as in the Culver case, 60 C. Cls. 825, 271 U. S. 315. The case is covered by the principles announced in Bradshaw v. United States, 62 C. Cls. 638, and Luskey v. United States, 56 C. Cls. 411, 262 U. S. 62.

The plaintiff is entitled to recover the sum of $934.12, the amount deducted from his pay, and judgment should be entered for that amount. It is so ordered.

SiNNOtt, Judge; GkeeN, Judge; Moss, Judge; and Booth,. Chief Justice, concur. 
      
       “ 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.”
     
      
       “ That the authorization for increase of flying pay contained in section 13a of the act of June 4, 1920, shall be construed to include any officer of any branch of the service who may be ordered by proper authority to perform duty requiring him to participate regularly and frequently in aerial flights.”
     