B-149545, AUG. 20, 1962

B-149545, AUG. 20, 1962

TO MR. DOMENICO A. BARONE:

BY LETTER DATED JULY 12, 1962, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF JUNE 28, 1962, WHICH DENIED YOUR CLAIM FOR EIGHT HOURS' OVERTIME PAY FOR TRAVEL PERFORMED ON SATURDAY, JULY 22, 1961. ADDITIONALLY, YOU ASKED TO HAVE EIGHT HOURS OF ANNUAL LEAVE RESTORED TO YOUR LEAVE ACCOUNT. YOU SAY THAT THIS LEAVE WAS FOR JULY 21, 1961, AND IT WAS MISTAKENLY DEDUCTED FROM YOUR ACCOUNT.

AS TO THE RECREDIT OF ANNUAL LEAVE, OUR OFFICE HAS CONSISTENTLY HELD THAT THE GRANTING AND CHARGING OF ANNUAL LEAVE IS A MATTER PRIMARILY FOR THE CONSIDERATION OF THE ADMINISTRATIVE OFFICE INVOLVED. THAT BEING THE CASE, WE SUGGEST THAT YOU PRESENT YOUR CLAIM FOR RECREDIT OF ANNUAL LEAVE TO APPROPRIATE OFFICIALS OF YOUR AGENCY FOR THEIR CONSIDERATION.

AS TO YOUR CLAIM FOR OVERTIME COMPENSATION, THE FACTS OF RECORD ARE AS FOLLOWS:

INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE NAVY, YOU WERE GRANTED ANNUAL LEAVE NOT TO EXCEED 20 DAYS (28 CALENDAR DAYS) UPON THE COMPLETION OF YOUR ASSIGNMENT AT TODENDORF, WEST GERMANY. YOU COMPLETED THIS DUTY ON JUNE 22, 1961, AND AT 12:00 NOON WERE INSTRUCTED TO CARRY OUT THE REMAINDER OF YOUR BASIC ORDERS OF LEAVE FOR 28 CALENDAR DAYS AND REPORT TO MATS TERMINAL, FRANKFURT, WEST GERMANY. ACCORDING TO YOUR TRAVEL ITINERARY, YOU ARRIVED AT MATS TERMINAL, FRANKFURT, AT 8:00 A.M., ON JULY 21, 1961, DEPARTED AT 5:05 P.M., THE SAME DAY AND ARRIVED AT YOUR DOMICILE AT 2:30 P.M., ON JULY 22, 1961.

YOUR CLAIM FOR OVERTIME WAS DENIED UNDER NCPI 610.7-5 (B) BECAUSE YOU INCURRED DELAYS OVER WHICH YOU HAD CONTROL AND; UNDER NCPI 610.7-6 (A), THE PRACTICE OF REQUIRING TRAVEL ON SCHEDULE NONWORKDAYS SHOULD BE AVOIDED WHENEVER POSSIBLE. YOU MAINTAIN IN EFFECT THAT INASMUCH AS THE NAVY DEPARTMENT GRANTED PERMISSION FOR YOU TO TAKE THE ANNUAL LEAVE, ANY DELAY INCURRED RESTED WITH THE AGENCY RATHER THAN YOURSELF.

WE DO NOT AGREE WITH THIS ARGUMENT. THE DEPARTMENT OF THE NAVY DID NOT FORCE YOU TO TAKE THE ANNUAL LEAVE. SUCH LEAVE WAS GRANTED UPON YOUR REQUEST AND CONSEQUENTLY ANY RESULTING DELAYS WERE OCCASIONED BY YOUR ACTION AND NOT THAT OF THE DEPARTMENT OF THE NAVY.

IN ANY EVENT, THE REGULATIONS INVOLVED WERE PROMULGATED PURSUANT TO SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, APPROVED SEPTEMBER 1, 1954, CH. 1208, 68 STAT. 1110, 5 U.S.C. 912 (B). THE CITED PROVISION PROVIDES AS FOLLOWS:

"FOR THE PURPOSES OF THIS CHAPTER, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'

WHILE THE ABOVE-QUOTED PROVISION OF LAW DOES NOT APPLY TO EMPLOYEES WHOSE COMPENSATION IS FIXED BY WAGE BOARDS, THE SAME STANDARDS HAVE BEEN SET UP BY THE DEPARTMENT OF THE NAVY IN ITS REGULATIONS. ACCORDINGLY, SINCE YOU PERFORMED NO DUTIES WHILE TRAVELING AND THE TRAVEL INVOLVED WAS NOT UNDER ARDUOUS CONDITIONS, YOU ARE NOT ENTITLED TO THE OVERTIME COMPENSATION SOUGHT. SEE BIGGS V. UNITED STATES, CT.CL.NO. 184-59, DECIDED MARCH 1, 1961, ALSO REPORTED AT 287 F.2D 908.