delivered the opinion of the court:
Plaintiff sues for the extra compensation to which he claims he is entitled from January 15, 1942 through September 10, 1942, by reason of the fact that during that time he says he was required by orders of competent authority to participate regularly and frequently in aerial flights, and that he did so.
It is admitted that plaintiff did participate regularly and frequently in aerial flights, but it is denied that he did so “by orders of competent authority.” Defendant also urges that the orders directing him to participate in these flights recited that he was not entitled to flying pay and that, having participated in them with this understanding, it must be held that he waived his statutory right to the additional pay.
We are of opinion that plaintiff’s participation in the flights was pursuant to orders of competent authority.
The Act of June 10,1922 (42 Stat. 625, 633), under which plaintiff sues, in conjunction with the Acts of June 4, 1920 (41 Stat. 759,768), and the Act of July 2,1926 (44 Stat. 780), provides that “Regulations in execution of the provisions of this section shall be made by the President * * Pursuant thereto the President promulgated Executive Order 5865, dated June 27,1932, sections 5, 6, and 14 of which read in part as follows:
5. Each officer, warrant officer, or enlisted man of the Army who is duly assigned to a course of instruc*181tion for qualification as aircraft pilot or aircraft observer, * * * shall be required to participate regularly and frequently in aerial flights; orders for such requirement shall be issued by the Chief of the Air Corps for the Army, * * *.
6. Each officer or warrant officer other than * * * those specified in paragraphs 2, 3, 4, and 5, may be required to participate regularly and frequently in aerial flights; orders for such requirement shall be issued by the Chief of the Air Corps for the Air Corps of the Army, the Secretary of War for other branches of the Army, * * *.
14. Compliance with the foregoing requirements constitutes participation in regular and frequent aerial flights within the meaning of the act approved July 2, 1926 (44 Stat. 780), and no flight pay shall accrue to any person during any period in which the provisions of this order are not complied with.
Plaintiff in order to be entitled to flying pay must have been required to participate in the flights pursuant to orders issued by the Secretary of War, inasmuch as he held a commission, not in the Air Corps, but in the Field Artillery. We are of opinion that he did participate in them pursuant to such orders.
As will be seen from a reading of finding 2 the Secretary of War, through the Adjutant General, authorized the Chief of Field Artillery to initiate and conduct an experiment in air observation for Field Artillery by a unit of the Field Artillery, instead of by the Air Corps, as had been done formerly.
Acting under this authority, the Chief of Field Artillery directed the Commandant of the Field Artillery School at Fort Sill, Oklahoma, to conduct the test flights. That officer, in turn, “designated [“the persons listed below”] as pilots for the purpose of flying light observation aircraft operated by the Field Artillery.” Plaintiff was one of those named below; he was given the designation of “Director of Air Training.” Pursuant thereto he flew regularly and frequently as a pilot in the performance of his duties as Director of Air Training.
We are of opinion, therefore, that plaintiff, an officer in the Field Artillery, participated in these flights pursuant to the order of the Secretary of War and, therefore, that he *182is entitled under the statutes and the Executive Order to the “flying pay” provided for therein. The order of the Secretary of War provided for the making of the flights; plaintiff’s commanding officer was designated to conduct the flights; and plaintiff was ordered by him to make them; and he did so pursuant to these orders.
It was not intended by the Executive Order, of course, that the Secretary of War should name the particular individuals to make the flights. His duty was to authorize them, and it was permissible, and indeed necessary, for him to leave to his subordinates the designation of the particular individuals to make them.
Nor do we think defendant’s second defense is good. The fact that the order requiring plaintiff to make the flights recited he would not be entitled to flying pay does not, and could not deprive him of the compensation to which he was entitled under the laws of Congress. An officer of the Army has no right to set aside an Act of Congress, or to take away from one of his subordinates a right given him by an Act of Congress.
Nor is plaintiff barred from claiming the compensation to which he was entitled under the laws of Congress by the fact that he volunteered to make the flights and signed an application therefor in which it was recited:
It is understood that I will receive no additional pay or increased grade unless I am selected as a member of one of the test corps, and thereafter my pay will depend upon a grade recommended by the Chief of Field Artillery.
Even if this can be construed to constitute a waiver of flying pay, it is, nevertheless, a complete nullity, under a number of decisions of this court and of the Supreme Court; e. g. Glavey v. United States, 182 U. S. 595; United States v. Andrews, 240 U. S. 90; MacMath v. United States, 248 U. S. 151; Bancroft v. United States, 56 C. Cls. 218, affirmed on appeal 260 U. S. 706.
Plaintiff’s pay is fixed by Act of Congress, and not by the Chief of Field Artillery, and neither this officer nor any other one had a right to require him to waive or forfeit the pay to which he was entitled under the Acts of Congress. *183If it is to be said that he waived his right to flying pay, this waiver, under the authorities cited, is a complete nullity.
Plaintiff is entitled to recover. Judgment will be entered in his favor and against the United States for $1,619.06. It is so ordered.
Madden, Judge, and Littleton, Judge, concur.