#### WAYNE L. CARLETON v. THE UNITED STATES

[No. C-702.

Decided February 20, 1928]

*On the Proofs*

*'Navy pay; regular detail to aviation duty.'*— The act of March 3, 1915, does not provide the method of detailing men to duty involving actual flying in aircraft, and an enlisted man of the Navy, regularly detailed to such duty, is by reason thereof entitled to the statutory increase in pay. *Luskey*v. *United States,*262 U. S. 62.

*The Reporter's*statement of *the*case:

*Mr. Cornelius H. Bull*for the plaintiff. *King do King*were on the brief.

*Mr. Frank J. Keating,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, Wayne L. Carleton, at all times from April *10,1915, to June*5, *1917,*was in the *military service*of the United States Navy.

II. On July 1, 1916, the plaintiff was serving as a boatswain’s mate, second class, United States Navy, on board the U. S. S. *North Carolina;*served as such until transferred to the U. S. S. *Beattie,*November *17,*1916, and during this entile period he was on detail for duty involving actual flying in aircraft, his designation for such duty having been approved by the commanding officer of Naval Aeronautics, April *27,*1915.

On November 18, 1916, the plaintiff was, by the Bureau of Navigation, again designated for duty involving actual flying in aircraft. This designation was presented to and *approved*by the Secretary of the Navy January 15, 1917, *565and was in effect until June 5,1917, when plaintiff was transferred to another station.

III. Plaintiff was paid fifty per cent increase for the performance of flying duty during the period July 1, 1916, to December 31, 1916, and received therefor $150.88. This amount was subsequently checked against his pay and thereby refunded the United States. He received no increase in pay for flying during the period January 1, 1917, to February 28, 1917. If plaintiff be found entitled to receive fifty per cent increase in pay on account of detail for duty involving actual flying in aircraft for the periods July 1, 1916, to December 31, 1916, and January 1, 1917, to February 28, 1917, the amount due him is $204.46.

The court decided that plaintiff was entitled to recover.

Moss, Judge,

delivered the opinion of the court:

Plaintiff, Wayne L. Carle ton, was on detail for duty involving actual flying in aircraft from July 1, 1916, until June 5, 1917. For the first period, July 1, 1916, to November 17, 1916, the designation for such duty was made by a superior officer, and was approved by the commanding officer of Naval Aeronautics; and for the second period, November 18, 1916, to June 5, 1917, the designation was made by the Bureau of Navigation and was approved by the Secretary of the Treasury. This action is for the recovery of the extra pay of fifty per cent of base salary and allowances provided by the act of March 3,1915, 38 Stat. 939, for officers and enlisted men lawfully detailed. for duty involving actual flying in aircraft. If entitled to a recovery plaintiff should receive $204.46.

The record shows that plaintiff was paid the increase during the period July 1, 1916, to December 31, 1916, in the sum of $150.88, but this sum was subsequently checked against his account. He received no increase in pay during the period January 1, 1917 to February 28, 1917.

The statute upon which this case rests makes no provision for the method of designation or detail. It merely provides the increase of pay for enlisted men *“while detailed*for duty involving actual flying in aircraft * * At the *566time of the first detail mentioned above no specific procedure had been adopted. Plaintiff was detailed for this duty by a superior officer, and the detail was approved by the commanding officer of Naval Aeronautics. It was a lawful detail. The legality of the designation on November 18, 1916, is not questioned.

This case is controlled by the decision of the United States Supreme Court in the case of *Luskey*v. *United*States, 262 U. S. 62. Plaintiff is entitled to recover, and it is so ordered.

Geaham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.