________________________________________ March 10, 1997 ________________________________________ GSBCA 13794-TRAV In the Matter of JAMES E. TEMPLE James E. Temple, Louisville, KY, Claimant. T. J. Heavyside, Director for Finance and Accounting Systems Transition, Defense Finance and Accounting Service, Indianapolis, IN, appearing for Department of Defense. BORWICK, Board Judge. Mr. James E. Temple is a civilian pilot with the United States Army Operational Support Airlift Command (OSAC). He submitted unquantified claims for per diem for alleged travel time on flying trips between May 13, 1993 and December 9, 1994. If his workday was eight hours, he claimed per diem for a travel period that began at takeoff and ended with a landing more than ten hours later. If his workday was ten hours, he claimed per diem for a travel period that began at takeoff and ended with a landing more than twelve hours later. Each of these trips took no longer than a day. The agency denied the claim; Mr. Temple appealed the denial to this Board. For the reasons below, we conclude the agency was correct in denying the claim. Claimant's position description states that he performs his duties on a first forty-hour work schedule as directed by his supervisor to include working days, nights, weekends and holidays. The first forty is a method of scheduling working hours for workers with irregular hours such as pilots. As expressed in an OSAC policy memorandum dated September 14, 1992, all work performed within the first forty hours was considered regularly scheduled work for premium pay and hours of duty purposes. Normally employees were expected to work an eight-hour day, five-days per week, Monday through Friday. However, when missions were scheduled requiring work outside the normal duty day, the duty day would be adjusted to meet mission requirements. Any additional hours of officially ordered overtime or approved work, beyond the first forty hours worked, would be compensated by paid overtime or requested compensatory time off. In a supplemental memorandum of November 17, 1992, OSAC advised that for crew endurance requirements a flight crew day could not exceed sixteen hours. A work day (paid work period) started when a crew member arrived at his/her place of duty (normally one and one-half hours prior to the take-off time for a mission) and would normally end thirty minutes after touch-down (one hour on temporary duty flights). Employees were required to work the forty hours within a period of not more than six days. During November of 1992, the OSAC Kentucky Flight Detachment commander entered into a work agreement with the pilots attached to the command. According to that agreement, the detachment commander had two scheduling options. Under option one the commander could arrange the schedule so that: (1) pilots would be scheduled for a forty-hour work week over a six-day period; (2) pilots would be scheduled for no less than eight hours of work on any given scheduled day of work; (3) pilots would be scheduled to work any eight hours of the day; (4) pilots assigned to fly remain overnight missions (RONs) would be credited with a minimum of eight hours of work for each day the pilots were away from their home station; (5) on the return day of a RON, the pilots would be credited with a minimum of eight hours of work for that day if they arrived at the home station after 4 p.m. Work beyond the eight-hour day would be considered overtime. Option two was identical to option one, but gave the detachment commander the option to schedule work for ten-hour days over a six-day period. The commander could not mix eight and ten- hour days in the same work week for a single pilot. This work agreement was submitted to higher authority--the OSAC commander--for approval; the work agreement was never approved. OSAC determined the work agreement was not a true first forty-hour work schedule. Nevertheless, the pilots of claimant's detachment informally adhered to this schedule. On December 6, 1994, the Kentucky Flight Detachment rescinded the work agreement effective December 11. Mr. Temple's claim for per diem is based on claimant's working beyond the hours specified in the work agreement between May 13, 1993 and December 9, 1994, and on the irregular flight hours for which per diem is claimed. For example, on May 13, 1993, claimant departed at 6:50 a.m. from Fort Knox, Kentucky for St. Louis, Missouri, and returned at 6:15 p.m. that day. On June 17, claimant departed for Fort Bragg, North Carolina at 7:10 a.m. and returned to Fort Knox at 9:00 p.m. On December 9, claimant departed at 5:00 a.m. for Lansing, Michigan, made a stop in Kalamazoo, Michigan, and returned at 5:50 p.m. On April 6, 1994, claimant departed at 7:40 a.m., stopped in Columbus, Ohio, Wright-Patterson AFB, and Indianapolis, Indiana, and returned at 6:50 p.m. At the time relevant to Mr. Temple's claim, the Federal Travel Regulation (FTR) provided: (b) Travel of 10 hours or less (10-hour rule). A per diem allowance shall not be allowed when the period of official travel is 10 hours or less. (This rule also applies to travel incident to a change of official station.) (c) Exception to 10-hour rule. Per diem shall not be allowed for employees who qualify for per diem solely on the basis of working a nonstandard workday (e.g. four 10- hour days or any other compressed or flexible schedule). In such instances, per diem shall not be allowed for travel periods less than or equal to the employee's workday plus 2 hours. 41 CFR 301-7.5 (1993). The Department of Defense Civilian Personnel Joint Travel Regulations (JTR) similarly provided that per diem will not be allowed for travel of ten hours or less. JTR C4552-G. For employees who qualify for per diem solely on the basis of working a non-standard work day, per diem shall not be allowed for travel periods less than or equal to the employee's workday hours plus two hours. JTR C4552-H. The agency explains that when pilots work a regular forty-hour work week, and the travel is more than ten hours, but less than twenty-four hours, the pilots are entitled to per diem for the quarters of a day in travel status. 41 CFR 301-7.7; JTR C4553-D.1. However, for pilots working an irregular first forty-hour schedule, the exceptions in the FTR and JTR apply. Mr. Temple claims that as a result of the informal work agreement he was not working a first forty-hour schedule. It is within the discretion of the agency to pay per diem only where it is necessary to cover the increased expenses incurred arising from the performance of official duty. Frederick C. Welsh, 62 Comp. Gen. 80 (1982). Agencies have the discretion to authorize only such per diem allowances as are justified by the circumstances affecting the travel. See Department of Labor, B-229473 (Oct. 7, 1988)(agency acted reasonably in applying exception to ten-hour rule to mine safety inspectors on first forty-hour work schedule). Inherent in the ten-hour rule and its exception is the assumption that, as long as the travel period consumes no more than the normal workday (usually eight hours) plus two hours, no additional expenses will have been incurred because of the employee's travel status. Marion Harris, B-232157 (May 4, 1989). Thus it is not an abuse of discretion to apply the exception to the ten-hour rule to employees (including pilots) who are on a first forty-hour work schedule. Marion Harris. Mr. Temple argues his situation is different, because he worked regular eight-hour or ten-hour days adhering to the informal work agreement established by the commander of the Kentucky Flight Detachment. The exception to the ten hour rule applies to variable or flexible workdays regardless of the number of hours worked, whether scheduled or non-scheduled. Department of Labor. Mr. Temple's time cards establish that he flew irregular hours; the irregular hours were inherent in his position as a pilot and clearly anticipated both in his position description and the OSAC policy of September 14, 1992. The unofficial and temporary agreement established by the commander of the Kentucky Flight Detachment did not change the expectations or the nature of the position. The agency did not, therefore, abuse its discretion in considering expenses incurred during the first forty hours as normal expenses of the job and denying him per diem based upon the exception to the ten-hour rule stated in the FTR and JTR. _________________________ ANTHONY S. BORWICK Board Judge