
    CLARENCE C. CULVER v. THE UNITED STATES
    [No. C-375.
    Decided June 1, 1925]
    
      On the Proofs
    
    
      Aviation duty; increased pay. — AVliere an officer of tlie Army in the Air Sendee, rated as junior military aviator, is stationed in the office of the chief of that service, participates regularly and frequently in aerial flights and receives the increased pay provided therefor by section 13-A of the act of June 4, 1920, 41 Stat. 768, 769, is relieved from duty in the office of the Chief of the Air Service and detailed to duty as student officer in Army War College, he is not entitled to the increased pay under said act, although he continues to participate regularly and frequently in aerial flights by order of the Chief of the Air Service under a regulation of the Secretary of AVar.
    
      The Reporter's statement of the case:
    
      Mr. George A. King for the plaintiff. King dc King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney Generad Hermam, J. Galloway, for the defendant. Mr. O. R. McGuire was on the brief.
    
      The following arc the facts as found by the court :
    I. The plaintiff, Clarence C. Culver, was January 6, 1917, by the Secretary of 'War “ announced as on duty that requires him to participate regularly and frequently in aerial flights,” and on July 26, 1917, he was “ rated as junior military aviator.” On July 1, 1920, he was commissioned in the Air Service and promoted to the grade of lieutenant colonel. On October 5, 1920, he was rated as junior military aviator. Hi.s duties under the aforesaid orders required him to participate regularly and frequently in aerial flights, and he was paid the increased pay provided in the act of June 4, 1920, for officers while on duty requiring them to participate regularly and frequently in aerial flights up to and including August 15, 1921.
    II. On August 9,1921, the Secretary of War issued special orders Avhich directed that the plaintiff be relieved “ from his present assignment and duties ” and that he report to the commandant, General Staff College, for duty as student •officer, 1921-22 course, on August 15, 1921. At the time he was ordered to report to the commandant, General Staff College, the plaintiff was on duty in the office of the Chief of Air Service, Washington, D. C. The plaintiff complied with the order and was a student at the General Staff College from August 15, 1921, to June 30, 1922, inclusive. The plaintiff was relieved from duty as student at the Army War College, Washington Barracks, D. C., on July 1, 1922, and was ordered to Fort Sam Houston, Tex., for duty as corps area air officer.
    III. During the period the plaintiff was on duty as a student officer at the Army War College he performed a number of flights in each month of that period at Boling Field, Washington, D. C. Said flights were 131 in number and consumed 10y2 hours of time.
    The Chief of the Air Service, on December 2, 1920, issued a circular letter to the commanding officers of all air stations, in which it is stated:
    “ * * *• The Chief of Air Service considers that any officer holding a flying rating is on duty which requires his participation in reguiar and frequent flights no matter what the nature of such duty may be; this because of the fact that it is manifestly to the benefit of the service that officers who hold flying ratings participate regularly and frequently in flights in order that they may not become out of practice, but said interpretation of the law and regulations in no way covers the case of nonflying officers. * * * ”
    On December 31, 1921, after the controversy arose 'which has culminated in this suit the President of the United States issued a regulation, Army Regulations, 12691/2; which prescribed that all officers of the Air Service, whether commissioned in or regularly detailed therein, who are rated either as pilots of airplanes or airships, shall be required while on duty status to participate regularly and frequently in aerial flights whenever flying facilities are available.
    IV. If the plaintiff were to receive 50 per cent increase on his pay from August 15, 1921, to June 30,. 1922, while he was a student officer at the Army War College, he would be entitled to the sum of $1,950.
    The court decided that plaintiff was not entitled to recover.
   Hay, Judge,

delivered the opinion of the court: 1

The plaintiff, an officer of the Air Service stationed at Washington, D. C., in the office of the Chief of the Air Service, was on August 9, 1921, by an order of the Secretary of War, relieved from that assignment and duty and ordered to report to the commandant, Army War College, at Washington, D. C., for duty as student officer, 1921-22 course. The plaintiff complied with said order and reported for duty as student officer, Army War College, on August 15, 1921, and remained on said duty until June 30,1922.

The plaintiff was, on July 1, 1920, commissioned in the Air Service of the United States Army as a lieutenant colonel. On October 5, 1920, he was rated as junior military aviator; his duties under that order required him to participate regularly and frequently in aerial flights, and he was paid the increased pay provided in the act of June 4, 1920, for officers while on such duty up to and including August 15, 1921. While he was on duty as student officer at the Army War College he was refused the increased pay provided in the act of June 4, 1920, for officers required to participate regularly and frequently in aerial flights, the accounting officers of the Government holding that regular and frequent participation in aerial flights was no part of the duty of a student officer at the Army War College.

The plaintiff brings this suit to recover said increased pay, and alleges that while his duty as a student officer at the Army War College did not require him to participate regularly and frequently in aerial flights, yet he was under orders from the Chief of the Air Service so to do, and that a regulation promulgated by the President of the United States on December 31, 1921 required all officers of the Air Service rated as pilots of airplanes or airships while on a duty status to participate regularly and frequently in aerial flights as pilots whenever flying facilities were available. The plaintiff was rated as a pilot, and he claims that had he not participated in said flights regularly and frequently he would have been subject to military discipline; that as a matter of fact he was on duty requiring him to participate regularly and frequently in aerial flights.

While at the Army War College the plaintiff was on duty as a student officer; that duty was separate and distinct from the duty which he was performing while he was stationed at Washington, D. C., in the office of the Chief of the Air Service. The latter duty required him to participate regularly and frequently in aerial flights. He was by proper authority detached from that duty and assigned to perform a distinctly different duty, which did not require him to participate regularly and frequently in aerial flights. He could not perform at one and the same time two separate and distinct duties; he was either a student officer at the Army War College, or he was an officer in the Air Service whose duty it was to perform the duties of such an officer, included in which was the duty which required him to participate regularly and frequently in aerial flights. During the period for which he is demanding increased pay under section 18-A of the act of June 4, 1920, he was on duty which did not require him to participate regularly and frequently in aerial flights. It may be true that his superior officers required him to take these flights, but such requirements did not change the duty to which he had been assigned by proper authority. Neither the orders of the Chief of the Air Service nor the regulation of the President could change the character of that duty, which was the duty of a student officer at the Army Wat College; and while the plaintiff was on that duty he was not “ on duty requiring him to participate regularly and frequently in aerial flights.” The statute upon which the plaintiff relies provides: “And hereafter no person shall receive additional pay for aviation duty except as prescribed in this section.” Congress in the enactment of this statute evidently intended to confine this additional pay to officers who were on duty solely for participation regularly and frequently in aerial flights.

The flights made by the plaintiff while performing duty as a student officer at the Army War College were incidental to the duty he was then performing. Incidental flying by an officer performing duties other than those prescribed by the statute, can not create a liability upon the Government to pay him this additional pay, which is confined strictly to officers on duty requiring them to participate regularly and frequently in aerial flights.

The petition of the plaintiff must be dismissed. It is so ordered.

DowNex, Judge; Booth, Judge; and Campbell, Chief Justice, concur.

GRai-iam, Judge, took no part in the decision of this case.  