
    HAROLD LYMAN CLARK v. THE UNITED STATES
    [No. B-63.
    Decided April 20, 1925]
    
      On the Proofs
    
    
      Army pay; increased, pay for aviation duty. — An officer detailed for duty requiring him to participate regularly and frequently in aerial flights is entitled to the pay provided in the ■ act of June 4, 1920, 41 Stat. 768, 769, until he is detached from such duty, and his temporary detail to perform recruiting service does not detach him from aviation duty where as a part of said recruiting duty he is required to participate regularly and frequently in aerial flights.
    
      Same. — The fact that an officer was injured as an incident of his aviation service and incapacitated for flight duty for a period during which he was under detail requiring him to participate regularly and frequently in aerial flights did not deprive him of the additional pay for such duty.
    
      Commutation of quarters, etc. — An officer not on duty in the field but stationed at a permanent Army post is not entitled to commutation of quarters, light, and heat in right of his wife.
    
      The Reporter's statement of the case:
    
      Mr. Cornelius II. Bull for the plaintiff. Mr. George A-King and King di 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, Harold Lyman Clark, was by order of the Secretary of War dated March 12, 1918, with other officers “ announced as oil duty requiring them to participate regularly and frequently in aerial flights from February 12, 1918.” That order continued in force during the period covered by this claim.
    While on aviation duty at headquarters, Kelly Field, San Antonio, Texas, he was directed to proceed to Dallas, Texas, and to report upon arrival to the recruiting officer to be attached to the general recruiting office, Dallas, Texas, for-temporary recruiting duty.
    
      He remained on that duty from December 21, 1920, to February 10, 1921. He then returned to Kelly Field, Texas.
    During the time while on recruiting duty at Dallas, Texas, he made twelve flights in December, 1920, and others in January, 1921, by order of the recruiting officer under whom he was serving as well as under the order of the Secretary of War, supra.
    
    During all of the time covered by this claim the plaintiff was a first lieutenant in the Air Service, U. S. Army.
    II. If the plaintiff is entitled to be paid as on duty requiring him to make regular and frequent flights under section 13-A of the act of June 4, 1920, 41 Stat. 168, 769, he would receive an additional sum of $138.90.
    III. Plaintiff set out in his voucher for February, 1921, and certificates filed therewith, a claim for commutation of quarters, heat, and light for dependents under the act of April 16, 1918. During said month plaintiff was stationed at Kelly Field, the flying field adjacent to Fort Sam Houston, San Antonio, Texas, a permanent Army post. Plaintiff was not at the time on field duty and so certifies with his ■certificate filed with his pay voucher for the month of February, 1921. The amount of the commutation paid to the plaintiff for quarters, heat, and light from February 1 tq February 28, 1921, was the sum of $45.30. Plaintiff was ■entitled to commutation for quarters, heat, and light from February 1 to February 10, 1921, being the sum of $16.75. Plaintiff, therefore, improperly received and was paid for the commutation of quarters, heat, and light during the month of February, 1921, the sum of $28.55.
    IV. On April 20, 1921, Samuel E. .Brown, captain, Medi•cal Corps, made the following certificate:
    Office of the Flight SurgeoN, Kellt Field,
    
      San Antonio, Texas, April W, 1981.
    
    This is to certify that Lieut. Harold L. Clark was grounded upon the recommendation of the flight surgeon. The condition was incident to flying.
    Lt. Clark is entitled to flying pay from April 1, 1921, to April 30, 1921.
    (Signed) Samuel E. BrowN,
    
      Gaptain, Medieal Corps.
    
    
      The plaintiff was paid for the month of April, 1921, 50 per cent increase for extra compensation for flying pay, being the sum of $83.33.
    The court decided that plaintiff was entitled to recover, and the defendant entitled to recover in part.
   Hay, Judge,

delivered the opinion of the court:

The claim of this officer is based upon the provisions of section 13-A of the act of June 4, 1920, 41 Stat. 768-769. This section provides: “ 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.”

Ity order of the Secretary of War dated March 12, 1918, the plaintiff was placed on duty requiring him to participate regularly and frequently in aerial flights from February 12, 1918. This order, in so far as it affected the plaintiff, continued in full force and effect down to and including the dates mentioned in the petition and in the counterclaim of the defendant.

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 this case the plaintiff was not detached from the duty of participating regularly and frequently in aerial flights, and the fact that he was temporarily detailed to perform recruiting service does not deprive him of the right to receive the pay to which he is entitled, nor does it serve to detach him from the duty on which he is serving. Especially is this true when it appears that while on recruiting duty he was also engaged in participating regularly and frequently in aerial flights. Luskey v. United States, 56 C. Cls. 411; 262 U. S. 62.

The first item in the counterclaim of the defendant we think should be allowed. This officer not being on duty in the field, but being stationed at a permanent Army post, was not entitled to commutation of quarters, heat, and light in right of his wife for the period from February 10 to February 28, 1921.

The second item in the counterclaim of the defendant we do not think should be allowed. The officer was on duty requiring him to participate regularly and frequently in aerial flights. The flight surgeon certified on April 20, 1921, that the plaintiff was “ grounded ” on that day, and that the condition was incident to flying. It does not appear for how many days he was grounded; nor that he ceased to participate in aerial flights. In fact, the same flight surgeon in the same certificate certified that the plaintiff was entitled to flying pay from April 1, 1921, to April 30, 1921. If, as an incident to flying, the plaintiff was injured so that he could not fly for a number of days during that month,, that would not deprive him of his pay; he was still on duty, and was entitled .to the pay provided for him by statute.

A judgment will be entered for the plaintiff in the sum of $110.35. It is so ordered.

Graham, Judge; Downey, Judge; Booth, Judge; and Campbell, GTiief Justice, concur.  