Definitions and Counting of Service, Duty Status BRd 2

CHAPTER 87

DEFINITIONS AND COUNTING OF SERVICE, DUTY STATUS

(MOD Sponsor: FLEET DCS LAW)

CONTENTS

SECTION I - DEFINITIONS AND COUNTING OF SERVICE

Para
8701. Definition of Service
8702. Service in a Warship at Sea
8703. Service
8704. The Counting of Service
8705. Service for Promotion
8706. Medical and Dental Officers
8707. Civil Employment
8708. Employment under Commonwealth and Foreign Governments
8709. Officers on Personal Staff of a Governor-General or Governor
8710. Service in Acting Rank
8711. How Unemployed and Half-Pay Time Counts
8712. Officers Affected
8713. How Unpaid Leave Counts

SECTION II - DUTY STATUS

8721. Section 10 of the Crown Proceedings Act 1947 - Guidelines on Duty Status

ANNEXES

Annex 87A: Duty Status - Categorization of Activities

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CHAPTER 87

DEFINITIONS AND COUNTING OF SERVICE, DUTY STATUS

SECTION I - DEFINITIONS AND COUNTING OF SERVICE

8701. Definition of Service

1. ‘Service’ shall mean service on full pay and shall include ‘service in a warship at sea.’

8702. Service in a Warship at Sea

1. ‘Service in a warship at sea’ shall mean:

a. All time served while borne for pay on the books of one of Her Majesty’s ships or
vessels commissioned for sea service, or actually employed in surveying; or on
the books of one of Her Majesty’s seagoing ships kept by her parent ship, or in
Her Majesty’s ships and vessels during trials before being commissioned, from
the date of the arrival of the navigating party on board to the date of its departure.

b. Service in such tenders as the Ministry of Defence may declare to be seagoing

tenders.

c. Time on leave granted to an officer by the Flag Officer or Senior Naval Officer of
a foreign station, subject to the approval of the Ministry of Defence and not
exceeding the maximum foreign service full pay leave to which the officer will be
entitled by length of foreign service.

d. Service in a warship maintained by a Commonwealth government and

commissioned for sea service, at the discretion of the Ministry of Defence under
conditions similar to those prescribed in Para J.8408.

e. Service in a warship maintained by a foreign government and commissioned for

sea service, when performed by officers who are loaned under contract to such
government, and when of a nature equivalent to sea service as defined in a, at
the discretion of the Ministry of Defence.

f. All combatant service when actually employed in active operations against the
enemy, whether borne either in a seagoing, or harbour, ship or in a front-line
shore-based air unit.

8703. Service

1. ‘Service’ shall mean all time on full pay, including foreign service leave, the balance of
home service leave, and sick leave granted after the expiration of an appointment, but with
the following exceptions:

a. The regulations in respect of ‘time’ in respect of which unemployed or half pay

was granted are laid down in Para 8711.

b. The effect on ‘Service’ of the deprivation of seniority by sentence of a court-martial

is laid down in BR 11, Manual of Naval Law.

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8704. The Counting of Service

1. The conditions governing the counting of service and prior service as rating, for the
purpose of the grant or assessment of retired pay or gratuity, are laid down by Order in
Council. The regulations are published in JSP 764 and JSP 765.

8705. Service for Promotion

1. The ‘service’ or ‘service in a warship at sea’ required by officers for promotion is

regulated by the definitions given in Para 8702. and Para 8703. The manner in which
‘service’ and ‘service in a warship at sea’ count for promotion varies in different branches,
and is as laid down from time to time for individual ranks.

8706. Medical and Dental Officers

1. Medical and Dental Officers may be allowed to count time spent in certain recognized
civilian hospital appointments for seniority and increments of pay, notwithstanding that full
pay may not be issued in respect thereof, but it will not count as ‘service’ for retired pay or
any other purpose. The regulations governing the counting of previous service in the
Armed Forces or civilian experience towards ante-date of seniority are given in BR 1950,
Naval Pay Regulations.

8707. Civil Employment

1. Civil employment at or under the Ministry of Defence, or service under any other
department which may be declared by the Ministry of Defence, with the consent of the
Department of the Home Civil Service, to be for this purpose naval service, if it does not
count for or towards civil superannuation, shall count as ‘service’.

8708. Employment under Commonwealth and Foreign Governments

1. An officer who with the consent of the Ministry of Defence may accept and hold
employment under a Commonwealth or foreign government under the rules contained in
BR 1950, Naval Pay Regulations, shall, if his employment appears to the Ministry of
Defence to be of a nature affording practical experience likely to be of public advantage in
the event of his return to employment in Her Majesty’s Navy, count his time in such
employment as ‘service’.

8709. Officers on Personal Staff of a Governor-General or Governor

1. An officer allowed to accept an appointment as Secretary or Aide-de-Camp on the

personal staff of the Governor-General or Governor of a Commonwealth country shall not
receive half pay or other emoluments from naval funds during the tenure of such
appointment; and neither shall he be allowed to count the time in the appointment as
‘service’ for the purposes of retired pay or retirement gratuity, unless there is an officially
established complement to the appointment for a naval, military or air force officer on the
Active List.

2. However, time served in an unestablished or established Secretary, ADC or Extra

ADC post of this kind shall, at the discretion of the Ministry of Defence, count for seniority,
or promotion which normally takes place according to seniority, and for increments of full
and half pay which depend on seniority.

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8710. Service in Acting Rank

1. Subject to the general conditions in sub para 2 below, paid acting and temporary rank
held by officers of the Royal Navy and Royal Marines may reckon for increase of retired
pay as follows:

a. For each complete year (subject to a maximum of three) for which the paid acting
or temporary rank was held, there may be added one-third of the difference
between the retired pay for which the officer is eligible and the retired pay for
which he would have been eligible had his rank for retired pay been one rank
above his substantive rank.

b. Where an officer has failed to complete two years in a substantive rank required
to qualify him for the retired pay of the rank, such service may reckon for retired
pay as if it had been acting or temporary rank.

c. Parts of a year in acting or temporary rank will be calculated proportionately,

provided the acting or temporary rank has been held for a minimum period of one
year.

2.

a. Only paid acting or temporary rank held on or after 3rd September 1939 will count.

b. In no case shall service in an acting or temporary rank earn a rate of retired pay
higher than would have been earned if the acting or temporary rank had been
substantive.

c. The ‘complete years’ referred to in 1 sub para a need not be continuous in time
but may be made up of broken periods.

3. Pension will continue to be based on the length of reckonable service and normally on
the highest paid rating, whether acting or confirmed, held for an aggregate period of two
years or more during the five years preceding discharge to pension. However, where
during his final five years of service a rating has completed a total of at least one year, but
less than two years, in a higher rating or ratings, his pension will be assessed initially on
the highest paid rating held for two years or more to which an addition will be made in
recognition of the service in a higher rating. This addition will be calculated by taking for
the first year of service in a higher rate one-third of the difference between the pension
payable for the rating held for two or more years and the pension of the next higher rating
plus a proportionate amount calculated by days for any period in a higher rating in excess
of one year.

a. Where a rating is permitted to continue to serve beyond 22 years but on the

condition that the extra service is in a lower rating, the pension finally awarded will
be the current rate of pension appropriate to the higher rank in respect of the first
22 years’ pensionable service, plus an addition at the rate of pension appropriate
to the lower rank for the extra period served in the lower rank.

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b. Men who on 1st April 1972 were serving on engagements that could take them
beyond 37 years’ reckonable service will receive an addition to the 37 year rate of
pension equal to 1/37th of the appropriate 37 year rate of pension for each year
of reckonable service beyond 37 years subject to a maximum of five years, i.e. 5/
37th’s of the 37 year rate of pension.

Where the total reckonable service is not in complete years the residual period of less than
a year will be reckonable in calculating the amount of pension awarded.

8711. How Unemployed and Half-Pay Time Counts

1. Periods on unemployed pay or on half pay not following the sentence of a court-
martial, will reckon as service in full up to a maximum of six months in any one period or
two years in all. Service in excess of these limits will reckon as a third, subject to a
maximum of six years, such service reckoning as two years. Any period on half pay
following the sentence of a court-martial will reckon as a third.

8712. Officers Affected

1. The foregoing regulations are applicable to all officers on the Active List of the Royal
Navy and Royal Marines but not officers who have retired or resigned and are
subsequently recalled to service, or voluntarily re-employed, from the Retired or
Emergency Lists.

8713. How Unpaid Leave Counts

1. Special leave without pay will not normally reckon as service for any purpose, but the
Ministry of Defence may, at their discretion and in very exceptional circumstances, allow
such leave to reckon for seniority and increment purposes. A decision on this point will be
communicated when approval is given to the officer’s application. Officers serving on an
initial commission will be required to extend their period of service on the Active List by the
amount of their unpaid leave.

8714 - 8720. Unallocated

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SECTION II - DUTY STATUS

8721. Section 10 of the Crown Proceedings Act 1947 - Guidelines on Duty Status

1. Section 10 of the Crown Proceedings Act 1947 has been repealed by the Crown
Proceedings (Armed Forces) Act 1987. Under the terms of the new Act it is now open to
an injured member of the Armed Forces (or his dependants or his estate if he is killed) to
bring action for damages against the Crown or any other member of the Services if the
injury and death arose from an incident on or after 15th May 1987, when the Service
personnel concerned were on duty. (See Para J.5921.)

2. It should be noted, however, that the Secretary of State for Defence has reserved the
right to reactivate Section 10 of the Crown Proceedings Act 1947 when it appears
necessary or expedient to do so in National emergencies or for the purpose of warlike
activities either in or outside the UK.

3. Categorization of activities is shown in Annex 87A.

4. Service personnel are reminded that their rights to seek compensation from MOD are
not dependent on duty status as such. Compensation is payable for injury or loss resulting
from (for example) MOD negligence. Compensation is not payable simply on the basis that
the injury or loss occurred at a time when the Service person/MOD employee or agent
responsible was on duty. Nor will MOD accept liability for the actions of its employees
simply on the basis that they were on duty when the incident which led to the claim
occurred. The Department as employer is vicariously liable for the actions of its employees
where they are alleged to be responsible (for example) for negligent acts or omissions in
the normal course of their duties or employment. An individual will not be acting within the
normal course of his or her duties or employment if the act or omission complained of was
neither explicitly nor implicitly authorised by an individual’s superiors nor was something
that was necessarily incidental to the duties required of the individual. For example if a
member of the Armed Forces were to attack someone or engage in horseplay leading to
an injury whilst on duty this would not be considered to be in the normal course of his or
her duties or employment. In such circumstances the Department would not normally
accept vicarious liability. Similarly it should not be assumed that MOD will subsume an
employee’s defence within the Department’s own legal representation or provide legal
representation at public expense for the individual concerned.

In the event of any dispute, either over liability or the amount of compensation, Service
personnel and their families have the right to take their case to court.

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