[Comments on Army Member's Claim for Hazardous Duty Pay]

B-248536 October 22, 1992

A member claims hazardous duty pay for Performing medical laboratory tests on patients infected with the virus which causes Acquired Immune Deficiency Syndrome. His claim is denied because he has not provided orders indicating that his primary duty meets the statutory and regulatory requirements for hazardous duty pay. Furthermore, various Army officials have determined that his duty is not sufficiently hazardous to entitle him to hazardous duty pay, and we will not substitute our judgment for the Army's in the absence of clear and convincing evidence the their determination was arbitrary and capricious.

Dear Sergeant           :

This is in response to your appeal of Claims Group settlement Z-2867557, dated February 11, 1992, which denied your claim for hazardous duty pay. We have reviewed your claim and have decided that we must affirm their determination.

In support of your claim, you state that you are assigned as a medical technician to draw blood and handle bodily fluids of patients infected with the virus which causes Acquired Immune Deficiency Syndrome. You state your belief that these activities constitute hazardous duty. You have pursued your claim for hazardous duty pay through Army channels, and various Department of Defense officials have determined that the duty you perform poses only minimal risk and does not justify payment of hazardous duty pay.

In a prior decision, 39 Comp.Gen. 731 (1960), involved the handling of explosives, we said that even though a member performs duties which pose safety risks, he is not entitled to hazardous duty pay unless he meets all the statutory and regulatory requirements for the type of hazardous duty he claims.

Furthermore, in another prior decision we said that we will not overturn an agency's determination that an employee's duties are not sufficiently hazardous to entitle him to hazardous duty in the absence of clear and convincing evidence that the agency's determination was arbitrary and capricious. See National Association of Government Employees, B-l8l498, January 30, 1975. We have no basis for overturning the Army's determination in this matter.

Based on our review of the record before us in this case, we find no error of law or fact in the Claims Group's determination, which accordingly is affirmed.