B-149325, JUL. 15, 1963

B-149325, JUL. 15, 1963

TO MR. AUSTIN P. FRUM:

IN YOUR LETTER OF FEBRUARY 28, 1963, YOU REQUEST, AS ATTORNEY FOR MR. W. JAY LOWERY, RECONSIDERATION OF MR. LOWERY'S CLAIM FOR STANDBY DUTY PAY WHILE ON TRIAL TRIPS OF UNITED STATES NAVAL VESSELS AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WHICH WAS DENIED BY OUR OFFICE SETTLEMENT OF SEPTEMBER 10, 1962.

THE CLAIM COVERS EIGHT SEPARATE TRIPS, THE EARLIEST TRIP BEGINNING NOVEMBER 3, 1958, AND THE LAST TRIP ON OCTOBER 10, 1961. TWO OF THE TRIPS WERE PRELIMINARY ACCEPTANCE TRAIL OF THE USS GALVESTON; ONE TRIP WAS A PRELIMINARY ACCEPTANCE TRIAL OF THE USS LITTLE ROCK; AND ONE TRIP WAS THE FINAL ACCEPTANCE TRIAL OF THE USS GALVESTON.

THE TRIALS WERE CONDUCTED UNDER THE DIRECTION OF THE NAVAL BOARD OF INSPECTION AND SURVEY. MR. LOWERY'S DUTIES WERE TO ASSIST THE ORDNANCE MEMBER OF THE BOARD IN HIS INSPECTION OF GUIDED MISSILE LAUNCHING SYSTEM MARK 7 AND ASSOCIATED EQUIPMENT AND TO ACT AS AN OFFICIAL OF THE BOARD WHILE SO DOING. THE SCHEDULE OF EVENTS AND SUCCESS OF FOLLOWING THE PLANNED PROGRAM DID NOT PERMIT A NORMAL WORKING DAY ON ANY OF THESE TRIPS.

THREE OF THE REMAINING TRIPS WERE FOR A PLANNED SHOCK TEST OF THE USS GALVESTON AND ITS ARMAMENT FOR THE PURPOSE OF TESTING THE ABILITY OF THAT SHIP AND ITS ARMAMENT TO WITHSTAND WARTIME SHOCK ENVIRONMENT. MR. LOWERY'S DUTY WAS TO OBSERVE, INSPECT AND REPORT THE ABILITY OF VARIOUS EQUIPMENT TO WITHSTAND SHOCK ENVIRONMENT. THE REMAINING TRIP WAS FOR A STRUCTURAL FIRING TEST OF THE USS LONG BEACH.

MR. LOWERY WAS ASSIGNED TO TEMPORARY DUTY ABOARD THE SHIPS, WAS ISSUED TRAVEL ORDERS FOR THIS PURPOSE, AND WAS PAID PER DIEM AND, IN SOME INSTANCES, OVERTIME, WHILE ON THIS TEMPORARY DUTY.

STANDBY DUTY PAY IS CLAIMED UNDER THE PROVISIONS OF NAVAL CIVILIAN PERSONNEL INSTRUCTION (NCPI) 610.4-3F, FORMERLY NCPI 85.4-3F. (THE REGULATIONS IN EFFECT DURING THE ENTIRE PERIOD OF THE CLAIM ARE SUBSTANTIALLY THE SAME. THEREFORE, REFERENCES TO THE REGULATIONS WILL BE MADE TO THOSE IN EFFECT AT THE BEGINNING OF THE CLAIM, 85.4-3F EFFECTIVE JUNE 13, 1958, AS AMENDED BY OIR NOTICE 5330, SEPTEMBER 4, 1958.)

THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT MR. LOWERY COMES WITHIN THE PROVISIONS OF NCPI 85.4-3F/2) RATHER THAN NCPI 85.4-3F/1).

NCPI 85.4-3F PROVIDED THAT:

"*F. TRIAL TRIPS OF VESSELS.--- WHILE ON TRIAL TRIPS ON VESSELS EMPLOYEES ARE NOT CONSIDERED TO BE PERFORMING TRAVEL. AS USED HEREIN TRIAL TRIPS APPLY TO SHAKEDOWN CRUISES OR OTHER SEA TRIALS WHICH ARE USUALLY OF SHORT DURATION AND SPECIFICALLY MADE TO TEST DIFFERENT TYPES OF EQUIPMENT OR MACHINERY FOLLOWING OVERHAUL, REPAIR OR INSTALLATION IN ORDER TO DETERMINE THE EFFECTIVENESS OR ACCEPTABILITY OF SUCH COMPONENTS AS THEY AFFECT THE OPERATIONAL NEEDS OF THE SPECIFIC SHIP ON SEA TRIAL.

"/1) WHILE ON TRIAL TRIPS EMPLOYEES WILL BE CONSIDERED TO BE IN A STANDBY STATUS FROM TIME OF EMBARKATION TO TIME OF DISEMBARKATION. THEY ARE TO BE PAID IN ACCORDANCE WITH THE PROVISIONS OF NCPI 85.4-3E ABOVE.

"/2) TRIPS ON VESSELS TO CONDUCT STUDIES (ON IMPROVED METHODS, STRUCTURES OR EQUIPMENT) FOR GENERAL APPLICATION ARE NOT TO BE CONSIDERED TRIAL TRIPS FOR PURPOSES OF THIS INSTRUCTION. IN SUCH CASES APPROPRIATE TEMPORARY ADDITIONAL DUTY TRAVEL ORDERS SHOULD BE ISSUED (SEE NCPI 85.7).

NCPI 610.4-3F, EFFECTIVE FEBRUARY 16, 1961, AMPLIFIED THE REGULATION TO PROVIDE THAT:

"F. DUTY ON VESSELS UNDERWAY.

EMPLOYEES WILL BE CONSIDERED TO BE IN A STANDBY STATUS WHEN ASSIGNED TO DUTY ABOARD VESSELS ON TRIAL TRIPS. AS USED HEREIN TRIAL TRIPS APPLY TO SHAKEDOWN CRUISES OR OTHER SEA TRIALS WHICH ARE USUALLY OF SHORT DURATION ARE MADE SOLELY TO TEST DIFFERENT TYPES OF MATERIAL OR EQUIPMENT FOLLOWING OVERHAUL, REPAIR OR INSTALLATION IN ORDER TO DETERMINE THE EFFECTIVENESS OR ACCEPTABILITY OF SUCH COMPONENTS AS THEY AFFECT THE OPERATIONAL NEEDS OF THE SPECIFIC SHIP.

"/1) EMPLOYEES ASSIGNED TO MAKE TRIPS ABOARD VESSELS FOR GENERAL ORIENTATION PURPOSES OR TO CONDUCT STUDIES AND/OR TESTS OF EQUIPMENT, OR STRUCTURES FOR THE PURPOSE OF DETERMINING THEIR FEASIBILITY FOR OPERATIONS IN THAT AND OTHER VESSELS ARE CONSIDERED TO BE IN A TRAVEL STATUS. SUCH CASES, APPROPRIATE TEMPORARY ADDITIONAL DUTY TRAVEL ORDERS SHOULD BE ISSUED. SEE NCPI 610.7.

"/2) EMPLOYEES WILL BE CONSIDERED TO BE IN A STANDBY STATUS WHEN ASSIGNED TO DUTY ABOARD VESSELS ON TRIAL TRIPS FOR THE SOLE PURPOSE OF TESTING DIFFERENT TYPES OF MATERIAL OR EQUIPMENT FOLLOWING OVERHAUL, REPAIR, OR INSTALLATION IN ORDER TO DETERMINE THE EFFECTIVENESS OR ACCEPTABILITY OF SUCH COMPONENTS AS THEY AFFECT THE OPERATIONAL NEEDS OF THE SPECIFIC SHIP. THE STANDBY STATUS WILL BEGIN AT THE TIME OF EMBARKATION AND END AT THE TIME OF DISEMBARKATION. EMPLOYEES PERFORMING SUCH STANDBY DUTY WILL BE PAID IN ACCORDANCE WITH THE PROVISIONS OF NCPI 610.4-3E. " NCPI 85.4- 3C AND E PROVIDED IN PART:

"C. MUST BE ORDERED OR APPROVED.---

STANDBY DUTY MUST BE ORDERED IN ADVANCE OR APPROVED AFTER IT HAS BEEN PERFORMED, BY COMPETENT AUTHORITY, IN ORDER TO BE COMPENSABLE. STANDBY DUTY THAT IS NEITHER ORDERED NOR APPROVED IS NOT COMPENSABLE. * * *

"E. IRREGULAR OR OCCASIONAL STANDBY DUTY.---

WHEN GRADED OR UNGRADED EMPLOYEES ARE REQUIRED TO PERFORM STANDBY DUTY WITHIN OR OUTSIDE THE HOURS OF THEIR SCHEDULED WORKWEEKS ON AN IRREGULAR OR OCCASIONAL BASIS, THEY WILL BE PAID AN HOURS' BASIC OR OVERTIME PAY, AS APPROPRIATE, FOR EACH HOUR OF STANDBY DUTY, THE SAME AS IF THEY WERE PERFORMING ACTUAL WORK. * * * "

THE BUREAU OF NAVAL WEAPONS HAS INFORMED US CONCERNING THEIR POLICY THAT:

"THE DUTIES AND RESPONSIBILITIES OF PROFESSIONAL AND TECHNICAL EMPLOYEES IN THE DEPARTMENTAL SERVICE OF THE BUREAU ARE SUCH THAT THEIR ASSIGNMENT FOR DUTY ABOARD SHIP INCLUDES THE RESPONSIBILITY FOR APPLICATION OF TECHNICAL DETERMINATIONS TO OTHER VESSELS AS WELL AS TO THAT SHIP. THEREFORE, ONLY THE PAYMENT OF PER DIEM AND SUBSISTENCE IS AUTHORIZED IN ACCORDANCE WITH NCPI 610.4-3F/1). ANY OVERTIME WORK PERFORMED DURING SUCH TRAVEL WILL BE PAID FOR IF IT IS AUTHORIZED IN ADVANCE OR APPROVED AFTER IT HAS BEEN PERFORMED. * * *"

NCPI 85.4-3C, QUOTED ABOVE, PROVIDES THAT STANDBY DUTY PAY MUST BE ORDERED OR APPROVED IN ORDER TO BE COMPENSABLE. NCPI 85.4-3F/1) CONSTITUTES AUTHORIZATION FOR STANDBY DUTY PAY FOR EMPLOYEES COMING WITHIN ITS PROVISIONS AS DISTINGUISHED FROM EMPLOYEES CONSIDERED TO COME WITHIN THE PROVISIONS OF NCPI 85.4-3F/2) FOR WHOM SPECIFIC INDIVIDUAL AUTHORIZATION OR APPROVAL WOULD BE A PREREQUISITE TO STANDBY DUTY PAY. THE ADMINISTRATIVE OFFICE HAS FOUND THAT THE RESULTS OF MR. LOWERY'S WORK HAVE A GENERAL APPLICATION AND ARE SUCH THAT HE FALLS WITHIN THE CLASS OF EMPLOYEES INTENDED TO BE COVERED BY NCPI 85.4-3F/2).

THE FACTS IN THE RECORD BEFORE US CONCERNING THE PARTICULAR OR GENERAL NATURE OF MR. LOWERY'S DUTIES ARE NOT SUCH THAT WE WOULD BE WARRANTED IN FINDING THAT THE ADMINISTRATIVE DETERMINATION IS INCORRECT REGARDING THE GENERAL APPLICATION OF HIS WORK. IN VIEW OF THE ADMINISTRATIVE FINDING AND THE LACK OF INTENT TO AUTHORIZE STANDBY DUTY PAY FOR MR. LOWERY OR OTHER EMPLOYEES OF SIMILAR STATUS UNDER NCPI 85.4-3F/1), MR. LOWERY IS NOT ENTITLED TO STANDBY DUTY PAY ON THE GROUND THAT HE COMES WITHIN THE PURVIEW OF NCPI 85.4-3F/1).

THE CLAIMANT HAS STATED THAT HE WAS PAID OVERTIME DURING SOME OF THE ASSIGNMENTS. THE RECORD CONTAINS NO EVIDENCE REGARDING ANY HOURS OF WORK FOR WHICH HE WAS NOT COMPENSATED. THE ADMINISTRATIVE OFFICE HAS NOT AUTHORIZED OR APPROVED STANDBY PAY FOR ANY OF THE TRIPS.

IN VIEW OF THE FOREGOING, THE PRESENT RECORD PROVIDES NO BASIS FOR ALLOWANCE OF THE CLAIM. CONSEQUENTLY, OUR SETTLEMENT OF SEPTEMBER 10, 1962, IS SUSTAINED.