
    HENRY H. ARNOLD v. THE UNITED STATES
    [No. E-329.
    Decided February 20, 1928]
    
      On the Proofs
    
    
      Aviation pay; duty requiring flights. — See Emmons ease, 63 O. Cls. 121.
    
      The Reporter'’s statement of the case: ■
    
      Mr. George A. King for the plaintiff. Mr. Gornel/ius PI. Bull and King c& King were on the brief.
    
      Mr. James J. Lenihcm, with whom was Mr. Assistant Attorney Generad Herman J. Galloway, for the defendant. Messrs. John G. Ewing and Franle J. Keating were on the brief.
    
      The court made special findings of fact, as follows:
    1. The plaintiff, Henry H. Arnold, entered the service of the United States as a cadet at the United States Military Academy at West Point, N. Y., in 1903, and from the date of his graduation therefrom has served continuously in the United States Army as a commissioned officer on active duty.
    II. The plaintiff served in the United States Army in the following grades and during the following periods of time: Captain, from April 1, 1917, to June 26, 1917; major, from June 27,1917, to September 4,1917; colonel, from September 5, 1917, to July 31, 1918, and from June 1, 1920, to June 30, 1920.
    III. May 20,1916, the War Department issued to plaintiff Special Orders, No. 119, of whjch paragraph 35 is as follows:
    “ Upon the recommendation of the Chief Signal Officer, First Lieut. Henry H. Arnold, 3d Infantry, is detailed under the provisions of section 2 of an act of Congress approved July 18, 1914, in the aviation section of the Signal Corps, rated as a junior military aviator with the rank of captain, and will proceed via this city for consultation with the Chief Signal Officer to San Diego, Cal., and report in person to the commanding officer Signal Corps Aviation School for duty. The travel directed is necessary in the military service.”
    On January 18, 1917, the War Department issued the following Special Orders, No. 15:
    “ Captain Henry H. Arnold, junior military aviator, Signal Corps, is announced as on duty that requires him to participate regularly and frequently in aerial flights from October 18, 1916.”
    This special order was never revoked during the period for which flying pay is claimed here.
    The following orders were also issued to the plaintiff:
    Special Orders] War Department,
    No. 129 j Washington, June 5,1917.
    
    [Extract]
    2. Maj. Henry H. Arnold, junior military aviator, Signal Corps, now on temporary duty in this city, is relieved from further duty in the Canal Zone and will report in person to the Chief Signal Officer of the Army for duty in his office.
    (2607572, A. G. O.)
    ‡ ‡ ❖
    By order of the Secretary of War:
    Taseer H. Bliss,
    
      Májor General, Acting Chief of Staff.
    
    Official:
    H. P. McCain,
    
      The Adjutant General.
    
    Special Orders'! War Department,
    No. 144 — C J Washington, Ju/ne SO, 1919.
    
    [Extract]
    * ‡ ‡ ‡
    Par. 68. The rating of Colonel Henry H. Arnold, junior military aviator, Air Service (Aeronautics), as military aviator, to date from May 20, 1919, is announced.
    By order of the Secretary of War:
    Peyton C. March,
    
      General, CMef of Staff.
    
    Official:
    P. C. Harris,
    
      The Adjutant Generad.
    
    IY. Plaintiff, on April I, 1917, was on duty in Panama with the 7th Aero Squadron. At that time he was ordered by the commanding general of the Canal Zone to proceed to New York to secure equipment for this squadron. Plaintiff reported to the commanding general of the Eastern Department, who verbally directed him to proceed to Washington, D. C., arriving about the 10th of April, 1917. He reported to the Chief Signal Officer of the United States. He was assigned to temporary duty in the office of the aeronautical division of the Signal Corps.
    Upon being placed on temporary duty in Washington in April, 1917, plaintiff was placed in charge of the information division. His duties consisted in collecting and distributing all classes of military aeronautical information, which included technical information concerning new types of aero-planes and equipment, standard training information concerning the training of aviators, and all foreign information that it was possible to receive. Plaintiff was required to have an intimate knowledge of all branches of aviation and it was his duty to make inspections of the various kinds of equipment in use, and in order to properly perform his duties it was necessary to engage in regular and frequent flights. Plaintiff was on this particular duty until about the middle of August, 1917, when he was made assistant executive officer of the air division of the Signal Corps. His duties as such required that he be familiar with all Air Service activities, including supplies and production of aeroplanes, training of men, and use of material. In order to perform his duties as such assistant it was necessary for him to make frequent inspections of aeroplanes and aeroplane stations to ascertain conditions existing at such stations and the condition of the planes themselves. In order to do this plaintiff had to fly aeroplanes at various stations in order to make his reports on their condition when he returned to Washington.
    Plaintiff served as assistant executive of the Air Service until October, 1917, when he was made executive officer of the air division. This change of position did not in any way change the duties of the plaintiff, but was only a change in name, and plaintiff still continued to fly planes as a pilot as the necessity therefor arose.
    Upon the frequent inspection trips to the various air stations made by plaintiff incident to his duties he made' a ground inspection with regard to the discipline of the men and the cadets, and the method of training, mess facilities, ■ and inspection of aeronautical supplies. A technical inspection was then made involving the actual examination of each aeroplane that was’present at the station and then flying such of them as he deemed necessary to fly.
    Plaintiff made inspection trips in February, 1918, to Essington, Pa., Buffalo, N. Y., Detroit, Mich., Columbus, Ohio, Belleville, Ill., Dayton, Ohio, Memphis, Tenn., and Little Bock, Ark., and at such stations where aeroplanes were available plaintiff flew such aeroplanes as were necessary to gain knowledge of the equipment of the station. He returned to Washington about the middle of March, 1918.
    
      From March, 1918, to August 1, 1918, plaintiff was on the control board of the aeronautical division of the Signal Corps, the duties of which board were to 'investigate new types of aeroplanes and accessories and make recommendations covering these aeroplanes relative to their production for the use of the Army. This necessitated an intimate knowledge of the aeroplanes and engines, which plaintiff obtained by actual flying in order to determine the best types. He flew foreign types as well as domestic types.
    Y. During the period from April 10,1917, tó June 5,1917, plaintiff performed three flights in Government aircraft, as follows:
    May 8,1 flight of 45 minutes.
    May 15, 1 flight of 50 minutes.
    May 25,1 flight of 65 minutes.
    During the period from June 5, 1917, to July 31, 1918, plaintiff performed twenty-nine flights as follows:
    August 9, 2 flights, 65 min.
    September 12, 4 flights, 1 hour and 15 min.
    October 10, 4 flights, 1 hour and 45 min.
    February 28,10 flights, 1 hour and 55 min.
    March 2, 4 flights, 40 min.
    March 4, 2 flights, 1 hour and 10 min.
    March 30, 3 flights, 1 hour.
    During the period from June 1, 1920, to June 30, 1920, plaintiff was on a status of leave, and during this time made two flights:
    June 15, 1 flight, 47 minutes.
    June 16, 1 flight, 40 minutes.
    VI. Plaintiff received no increase in pay for flying for the periods of April 1, 1917, to July 31, 1918, and June 1, 1920, to June 30, 1920.
    VII. If plaintiff is entitled to increased aviation pay during the periods from April 1, 1917, to July 31, 1918, and from June 1, 1920, to June 30, 1920, he should receive $3,065.66.
    The court decided that plaintiff was entitled to recover.
   Campbell, Chief Justice,

delivered tbe opinion of the court:

This case, in all material aspects, is controlled by the decision of this court in the case of Emmons v. United States, decided February 14, 1927, 63 C. Cls. 121. In Clark's case, 60 C. Cls. 589, 591, it was said: “ When an officer is on duty requiring him to participate regularly and frequently in aerial flights, he is entitled to the pay provided for in the statute during the time he is on such duty from the day he is placed on such duty until he is detached therefrom.” In Bradshaw's case, 62 C. Cls. 638, 644, it was said: 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.” See also Marshall's case, 59 C. Cls. 900; Matteson's case, 60 C. Cls. 880; and Lynch's case, 63 C. Cls. 91. It was said in Luskey's case, 56 C. Cls. 411, “ that when an enlisted man is detailed for duty involving actual flying in aircraft, he is entitled to the pay provided for in the statute during the time he is detailed for such duty from the day of such detail until the- detail expires” (p. 413). This decision was affirmed by the Supreme Court of the United States, 262 U. S. 62. In the course of the opinion it was said (p. 64): “ Congress naturally supposed that there would be no detail to aircraft duty unless there was requirement or use for it, and when either ceased the detail would be revoked; but if made and not revoked, its duration constituted a service for which the officer must keep prepared and to which, therefore, the compensation was by the statute assigned.” We regard this question as so thoroughly settled by these decisions that further discussion is unnecessary.

On the question of the statute of limitations, see Cronin case, 62 C. Cls. 20; Soldiers and Sailors Civil Belief Act, 40 Stat. 440, section 205. Judgment should be awarded to the plaintiff. And ,it is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.  