B-147965, FEB. 15, 1962

B-147965, FEB. 15, 1962

TO MAJOR COY M. CONAWAY, 01 685 637:

REFERENCE IS MADE TO YOUR CLAIM DATED OCTOBER 27, 1961, FOR STATION PER DIEM ALLOWANCES BELIEVED TO BE DUE FOR THE PERIOD SEPTEMBER 20, 1949, TO FEBRUARY 28, 1951, WHILE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. SINCE YOUR CLAIM IS A DUPLICATE OF THE CLAIM WHICH WAS DISALLOWED BY SETTLEMENT DATED JULY 8, 1952, IT WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

YOU WERE ASSIGNED TO DUTY AT TRIESTE BY PARAGRAPH 24, SPECIAL ORDERS NO. 133, DATED JULY 12, 1949. BY LETTER ORDER 3-75, DATED MARCH 27, 1951, YOU AND OTHER OFFICERS WERE AUTHORIZED TO BE PAID A STATION PER DIEM ALLOWANCE EFFECTIVE FROM DATE OF ARRIVAL IN TRIESTE. THE DATE OF ARRIVAL SHOWN IN YOUR CASE WAS SEPTEMBER 20, 1949. YOU WERE PAID THE ALLOWANCE FOR THE PERIOD MARCH 1, 1951, TO MAY 17, 1952. NO PAYMENT, HOWEVER, WAS MADE FOR THE PERIOD PRIOR TO MARCH 1, 1951. YOU CERTIFIED THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE EXCEPT FROM SEPTEMBER 20, 1949, TO SEPTEMBER 10, 1950; THAT GOVERNMENT MESS WAS NOT AVAILABLE EXCEPT FOR 250 MEALS DURING THE PERIOD SEPTEMBER 20, 1949, TO FEBRUARY 28, 1951, AND THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM SEPTEMBER 10, 1950, THROUGH THE PERIOD OF YOUR CLAIM. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT FOR THE REASONS STATED THEREIN. IN REOPENING YOUR CLAIM YOU SAY YOU UNDERSTAND OTHER CLAIMANTS HAVE BEEN PAID FOR THE SAME PERIOD.

PARAGRAPH 7A, WAR DEPARTMENT CIRCULAR 196, DATED JULY 25, 1947, PROVIDED THAT STATION ALLOWANCES WILL BE PAID ONLY WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE. THIS REGULATION WAS SUPERSEDED BY PARAGRAPH 4A, SPECIAL REGULATIONS 35-3080-1, DATED MAY 23, 1949, WHICH PROVIDE THAT STATION PER DIEM ALLOWANCE IS AUTHORIZED WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT AVAILABLE. PARAGRAPH 2F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS AMENDED BY SECTION IV, DEPARTMENT OF THE ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, DEFINES "GOVERNMENT MESS" AS FOLLOWS:

"FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. ANY ORGANIZATIONAL MESS OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A "GOVERNMENT MESS" FOR THE PURPOSE OF THIS CIRCULAR. RESTAURANTS AND CAFETERIAS OPERATED BY ARMY EXCHANGES OR OFFICERS' CLUBS ARE NOT CONSIDERED TO BE "GOVERNMENT MESS.'"

PARAGRAPH 2F (1), SPECIAL REGULATIONS 35-3080-1, DEFINES "GOVERNMENT MESS" IN SIMILAR LANGUAGE, THE DIFFERENCE BEING THAT THE DEFINITION INCLUDES ORGANIZATIONAL MESSES OPERATED FOR AIR FORCE ENLISTED PERSONNEL.

THE FOREGOING REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS INSTALLATION, IF EITHER AN OFFICERS' MESS OR ORGANIZATION FURNISHED FROM OFFICIAL SOURCES IN CASES SIMILAR TO YOURS AS TO THE MESSING FACILITIES WHICH WERE AVAILABLE IN TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE AND HENCE, AN INVESTIGATION WAS CONDUCTED BY REPRESENTATIVES OF THIS OFFICE IN AN ATTEMPT TO LEARN THE FACTS. SUCH INVESTIGATION INVOLVED A REPORT AS TO THE EXISTENCE OF OFFICERS' MESS OR MESSES, AND WHILE IT IS INDICATED THAT SOME OFFICERS' MESSES WERE IN OPERATION AT ONE TIME, IT IS NOT NOW POSSIBLE TO DETERMINE WITH ANY DEGREE OF ACCURACY WHEN AND FOR WHAT OFFICER SUCH MESSES WERE AVAILABLE. IT IS CLEAR, HOWEVER, THAT ORGANIZATIONAL MESSES FOR ENLISTED PERSONNEL WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. SEE B-111431, DATED MARCH 17, 1953, COPY ENCLOSED, WHICH ALSO DEALS WITH OTHER OFFICERS WHO ERRONEOUSLY WERE PAID THE ALLOWANCE FOR THE SAME PERIOD. UNDER THESE CIRCUMSTANCES, IT WOULD APPEAR THAT A GOVERNMENT MESS AS DEFINED IN THE GOVERNING REGULATIONS, WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE. ACCORDINGLY, AS TO THE SUBSISTENCE PORTION OF YOUR CLAIM, THE SETTLEMENT OF JULY 8, 1952, IS SUSTAINED.

AS TO THE QUARTERS PORTION OF YOUR CLAIM, SINCE THERE IS INFORMATION AVAILABLE TO US THAT BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM AND SINCE IT APPEARS YOU WERE FURNISHED QUARTERS FOR THE PERIOD SEPTEMBER 20, 1949, TO SEPTEMBER 10, 1950, YOU WERE NOT ENTITLED TO STATION QUARTERS PER DIEM FOR THAT PERIOD. AS TO THE PERIOD SEPTEMBER 10, 1950, TO FEBRUARY 28, 1951, SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PERMITTED CONSIDERATION BY THE SECRETARIES CONCERNED OF ALL ELEMENTS OF COST OF LIVING TO MEMBERS "AND THEIR DEPENDENTS" IN FIXING RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES. ON JUNE 30, 1950, REGULATIONS REQUIRED BY SECTION 303 (H) OF THAT ACT, 63 STAT. 815, FIRST WERE ISSUED. THE REGULATIONS AMENDED PARAGRAPH 2E, SPECIAL REGULATIONS 35-3080-1, AND PROVIDED THAT FOR PERSONNEL IN A NONTRAVEL STATUS WHOSE DEPENDENTS WERE RESIDING IN THE VICINITY OF THEIR PERMANENT STATION,"GOVERNMENT QUARTERS" SHALL INCLUDE ANY GOVERNMENT QUARTERS ADEQUATE FOR ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS, OR GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT OCCUPIED BY MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS. PARAGRAPH 4A OF SPECIAL REGULATIONS 35-3080-1 WAS ALSO AMENDED AND PROVIDED IN PART THAT OFFICERS WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, SHALL BE ENTITLED, IN ADDITION THERETO, TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS WHICH WILL BE IN LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS. THE STATION QUARTERS RATE PRESCRIBED FOR OFFICERS ON DUTY AT TRIESTE WAS $1 PER DAY. SEE SECTION II, SPECIAL REGULATIONS 35 3080-1.

IT IS NOT CLEAR FROM THE PRESENT RECORD, HOWEVER, WHETHER YOU WERE RECEIVING A BASIC ALLOWANCE FOR QUARTERS AFTER SEPTEMBER 10, 1950, AND ACCORDINGLY, THE PORTION OF YOUR CLAIM RELATING TO THE QUARTERS PORTION OF THE STATION PER DIEM FOR THE PERIOD SEPTEMBER 10, 1950, TO FEBRUARY 28, 1951, HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER DEVELOPMENT AND APPROPRIATE ACTION. YOU WILL BE ADVISED OF THE ACTION TAKEN.