#### HARRY W. LUSKEY v. THE UNITED STATES.

[No. 34241.

Decided November 7, 1921.]

*On the Proofs.*

*Extra, fay for aviation fluty, Navy.*— Where an enlisted man of the Navy is detailed for aviation duty under the provisions of the act of-March 3,1915, 38 Stat., 939, 940, providing extra pay for “duty involving actual flying in aircraft,” he is entitled to such extra pay when so detailed, as said act makes the pay dependent on the detail to such duty and not upon the number of flights while on such duty.

*The Reporter's*statement of the case:

*Mr. George A. King*for the plaintiff. *King*cfi *King*were on the briefs.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Robert IT.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, Harry W. Luskey, chief machinist’s mate, United States Navy, was, by authority of the commanding *412officer at Pensacola, Florida, confirmed by the Secretary of the Navy, detailed for duty involving actual flying in aircraft Sept. IS, 1915, and continued on that duty until after February 1, 1917. He was on duty at the Navy Aeronautic Station, Pensacola, Fla., until January 2, 1917, when he was transferred to a ship on aeronautic duty, to wit, to the U. S. S. *Seattle.*

During all that time he was under orders detailing him for duty involving actual flying and made actual flights, one of which was in September, 1916, and two others in December, 1916, and was at all times capable of flying if so ordered.

II. He received 50% additional pay allowed him by the act of March 3, 1915, in the sum of $329, for duty involving actual flying in aircraft for the entire period from July 1, 1916, to January 31, 1917, a period of seven months. At a later date the amount was checked against and deducted from his pay. On application to the accounting officers of the Treasury for such pay for that period he was allowed and paid a certain amount for the month of December, 1916.

If entitled to be paid 50% additional pay as a chief machinist’s mate, U. S. N., for aviation duty for the entire period, July 1,1916, to January 31,1917, less pay received for December, 1916, he would receive $279.95.

Hat, *J'udge,*

delivered the opinion of the court:

This is a suit brought by an enlisted man of the Navy to recover the sum of $279.95, which he alleges is due him by reason of his having been detailed to duty involving actual flying in aircraft under the provisions of the act of March 3, 1915, 38 Stat., 939, 940. The provisions of that act applicable to this case are: “ Hereafter enlisted men of the Navy and Marine Corps while detailed for duty invQlving actual flying-in aircraft shall receive the pay and the permanent additions thereto, including allowances, of their rating and service or rank and service, as the case may be, plus fifty per centum increase thereof.”

The plaintiff is an enlisted man and was lawfully detailed “ for duty involving actual flying in aircraft.” The Congress did not fix the pay on the number of times an enlisted man actually flew nor on the number of days he was engaged in *413actual flying but based it upon the time for which he was detailed necessarily involving' him in actual flying. The word “ involving ” used in the statute may be inept but its meaning in the connection in which it is used is plain and not to be mistaken, and that is, that the pay is not made dependent upon the number of flights while on such duty but is made dependent on the detail to such duty. When, therefore, the plaintiff was lawfully detailed to duty involving actual flying in aircraft he must be regarded and treated as entitled to the consequences of such detail and to the pay provided for such duty.

We therefore conclude 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.

Judgment will be entered for the plaintiff in the sum of $279.95. It is so ordered.

Graham, *Judge;*Downey, *Judge;*'Booth, *Judge;*and Campbell, *Chief*Justice, concur.