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B-127625, OCT. 7, 1957

B-127625 Oct 07, 1957
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WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RATE PRESCRIBED FOR SUBSISTENCE ALLOWANCE WHEN RATIONS IN KIND ARE NOT AVAILABLE AND THE RATE PRESCRIBED WHEN PERMISSION TO MESS SEPARATELY IS GRANTED (COMMUTED RATIONS) FOR THE PERIOD JANUARY 1. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT. INASMUCH AS GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU DURING THE PERIOD INVOLVED AND YOU WERE AUTHORIZED AT YOUR REQUEST TO MESS SEPARATELY. TO THE SUBSISTENCE ALLOWANCE PAYABLE WHEN RATIONS IN KIND ARE NOT AVAILABLE. YOU CONTEND THAT: "/1) THE "GENERAL MESS" REFERRED TO IN PARAGRAPH 3 OF YOUR LETTER WAS ESTABLISHED ON FEBRUARY 1. IT IS POINTED OUT THAT THERE WAS NO CHANGE IN OUR SUBSISTENCE RATE BEFORE AND AFTER THE ESTABLISHING OF THIS MESS.

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B-127625, OCT. 7, 1957

TO MR. CLIFFORD F. HENES:

YOUR LETTER OF JUNE 25, 1957, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF MARCH 26, 1957, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RATE PRESCRIBED FOR SUBSISTENCE ALLOWANCE WHEN RATIONS IN KIND ARE NOT AVAILABLE AND THE RATE PRESCRIBED WHEN PERMISSION TO MESS SEPARATELY IS GRANTED (COMMUTED RATIONS) FOR THE PERIOD JANUARY 1, 1950 TO SEPTEMBER 26, 1956, INCIDENT TO YOUR SERVICE AS AN ADMINISTRATIVE ENROLLEE, UNITED STATES MARITIME SERVICE.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT, INASMUCH AS GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU DURING THE PERIOD INVOLVED AND YOU WERE AUTHORIZED AT YOUR REQUEST TO MESS SEPARATELY, YOU WOULD NOT BE ENTITLED, UNDER APPLICABLE LAW (TITLE III, CAREER COMPENSATION ACT OF 1949, 63 STAT. 812) AND REGULATIONS, TO THE SUBSISTENCE ALLOWANCE PAYABLE WHEN RATIONS IN KIND ARE NOT AVAILABLE. YOU CONTEND THAT:

"/1) THE "GENERAL MESS" REFERRED TO IN PARAGRAPH 3 OF YOUR LETTER WAS ESTABLISHED ON FEBRUARY 1, 1950 BY ALL-UNIT LETTER NO. 50-2, DATED 2/1/50, AND NOT ON JANUARY 1, 1950, AS INFERRED FROM THE MARITIME ADMINISTRATOR'S REPORT. IN THIS CONNECTION, IT IS POINTED OUT THAT THERE WAS NO CHANGE IN OUR SUBSISTENCE RATE BEFORE AND AFTER THE ESTABLISHING OF THIS MESS. AGAIN, THIS ,GENERAL MESS" WAS UNAVAILABLE TO THE PERSONNEL FOR ABOUT TWO WEEKS IN AUGUST 1955 AND 1956, AND DURING CHRISTMAS LEAVE. DURING SUCH PERIODS, WE CONTINUED TO RECEIVE THE LOWER SUBSISTENCE RATE.

"/2) THE SAME REPORT MENTIONED IN PARAGRAPH 3 OF YOUR LETTER STATES THAT WE WERE GRANTED PERMISSION TO MESS SEPARATELY UPON OUR WRITTEN REQUEST. ATTACHED IS A COPY OF THIS REQUEST, WHICH STATES THAT WE WERE TO BE PAID THE $1.05 A DAY "IN LIEU OF RATIONS IN KIND.' FROM SUCH PHRASING, WE BELIEVE THAT WE SHOULD HAVE BEEN PLACED IN THE FIRST TYPE OF ALLOWANCE MENTIONED IN PARAGRAPH 2 OF YOUR LETTER. REGARDING THIS ATTACHED FORM, IT MAY BE OF INTEREST TO YOU TO KNOW THAT IT IS NOT EVEN USED AT PRESENT FOR NEW PERSONNEL.

"/3) THE WORDING OF THE FIRST SENTENCE OF PARAGRAPH 2 OF ALL-UNIT LETTER NO. 50-3 EMPHASIZES OUR POINT THAT THE TRUE REQUIREMENTS AND CONDITIONS OF A GENERAL MESS WERE NOT PRESENT.

"/4) WE BELIEVE THAT THE MESS AT THIS ACTIVITY DOES NOT MEET THE STANDARDS OF A TRUE GENERAL MEAN FOR THE FOLLOWING REASONS:

"/A) ON SEPTEMBER 1, 1956, A PRIVATE FOOD CONCERN WAS GIVEN PERMISSION TO OPERATE THE MESS, WORK FORMERLY DONE BY U.S. MARITIME SERVICE PERSONNEL. THIS CONCESSION CHARGES: (1) $12.99 A WEEK, ON A WEEKLY BASIS ONLY, FOR FEEDING ENLISTED PERSONNEL QUARTERED AT THE BASE, WHO RECEIVE NO SUBSISTANCE ALLOWANCE; (2) $12.00 A WEEK FOR FEEDING ANY OTHER ENLISTED PERSONNEL PERMITTED TO EAT AT THE MESS. SUCH PERSONNEL RECEIVE $1.00 A DAY SUBSISTANCE ALLOWANCE, OR $7.00 WEEKLY, OR $5.00 A WEEK LESS THAN THE CATERER MUST RECEIVE FROM THE ACADEMY FOR HIS SERVICES. IN THIS CONNECTION, THE SUBSISTENCE ALLOWANCE KNOWN AS "COMMUTED RATIONS" IS INTENDED TO BE GEARED TO THE COMPARATIVE COST TO THE ACTIVITY OF FEEDING THE PERSONNEL; (3) FROM SEPTEMBER 1, 1956, TO ABOUT A MONTH OR TWO AGO, THE CATERER HAS BEEN CHARGING ENLISTED PERSONNEL HOSPITALIZED AT THE BASE HOSPITAL AT THE RATE OF $12.00 A WEEK.

"/B) PERSONNEL LIVING OFF THE BASE HAVE NOT BEEN PERMITTED TO PARTAKE OF ANY MEALS IN THIS MESS, EXCEPT IN EMERGENCIES, WHEN SPECIAL PERMISSION HAD TO BE OBTAINED.

"/5) AS POINTED OUT IN OUR PREVIOUS LETTER, NAVY ENLISTED PERSONNEL STATIONED AT THIS BASE AND OPERATING UNDER THE SAME SUBSISTENCE REGULATIONS OF THE CAREER COMPENSATION ACT AS U.S. MARITIME SERVICE PERSONNEL, HAVE CONTINUED TO RECEIVE $2.57 A DAY FOR SUBSISTENCE (RAISED FROM $2.25).'

TITLE III OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES THAT THE SUBSISTANCE ALLOWANCE FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ONE OF THREE TYPES, NAMELY: (1) WHEN RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; OR (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. MARITIME ADMINISTRATION REGULATIONS ISSUED DECEMBER 20, 1949, HAD THE EFFECT OF MAKING TITLE III OF THE 1949 ACT APPLICABLE TO ADMINISTRATIVE ENROLLEES DURING THE PERIOD JANUARY 1, 1950 TO APRIL 30, 1952. FROM MAY 1, 1952, TITLE III WAS MADE APPLICABLE TO ADMINISTRATIVE ENROLLEES BY LAW. SEE 33 COMP. GEN. 151. THUS, THE PROVISIONS OF TITLE III OF THE 1949 ACT GOVERN YOUR CLAIM.

UNDER TITLE III OF THE CAREER COMPENSATION ACT OF 1949, AND PERTINENT REGULATIONS, ENLISTED PERSONNEL AT A UNIT WHERE RATIONS IN KIND ARE AVAILABLE WHO ARE AUTHORIZED TO MESS SEPARATELY ARE NOT ENTITLED TO THE SUBSISTENCE ALLOWANCE PRESCRIBED IN THE 1949 ACT WHEN RATIONS IN KIND ARE NOT AVAILABLE.

CONCERNING THE FIRST POINT RAISED BY YOU, ALTHOUGH ALL-UNIT LETTER NO. 50 -2 PURPORTEDLY ESTABLISHED A GENERAL MESS AT THE UNITED STATES MERCHANT MARINE ACADEMY, KINGS POINT, NEW YORK, EFFECTIVE FEBRUARY 1, 1950, WE UNDERSTAND THAT SUCH A MESS WAS, IN FACT, IN EXISTENCE AT KINGS POINT FROM THE TIME THE ACADEMY WAS OPENED, INCLUDING THE MONTH OF JANUARY 1950. THE MARITIME ADMINISTRATION, BY LETTERS DATED MARCH 12, 1957 AND AUGUST 7, 1957, HAS ADVISED US TO THE EFFECT THAT RATIONS IN KIND HAVE BEEN AVAILABLE AT THE ACADEMY FROM JANUARY 1, 1950, TO THE PRESENT DATE. INASMUCH AS RATIONS IN KIND WERE AVAILABLE TO YOU DURING THE MONTH OF JANUARY 1950, YOU ARE NOT ENTITLED, FOR THAT MONTH, TO SUBSISTENCE ALLOWANCE AT THE RATE PRESCRIBED BY TITLE III OF THE CAREER COMPENSATION ACT OF 1949 WHEN RATIONS IN KIND ARE NOT AVAILABLE.

AS TO THE GENERAL MESS BEING UNAVAILABLE FOR TWO WEEKS IN AUGUST 1955 AND 1956 AND DURING CHRISTMAS LEAVE, IT APPEARS YOU WERE NOT ENTITLED TO EAT AT THE GENERAL MESS DURING SUCH PERIODS EVEN IF IT HAD BEEN OPEN, INASMUCH AS YOU HAD BEEN AUTHORIZED, AT YOUR OWN REQUEST, TO MESS SEPARATELY AND WERE PAID SUBSISTENCE ON A COMMUTED RATION BASIS DURING THE PERIOD THE MESS WAS CLOSED. THE CLOSING OF THE GENERAL MESS FOR RELATIVELY SHORT PERIODS OF TIME FOR ADMINISTRATIVE REASONS DURING PERIODS YOU WERE NOT ENTITLED TO EAT AT THAT MESS WOULD NOT ENTITLE YOU TO THE SUBSISTENCE ALLOWANCE PRESCRIBED BY APPLICABLE LAW AND REGULATIONS WHEN RATIONS IN KIND ARE NOT AVAILABLE.

WITH REGARD TO YOUR SECOND POINT, SINCE RATIONS IN KIND WERE AVAILABLE TO YOU AT THE TIME YOU REQUESTED TO BE PAID $1.05 PER DAY IN LIEU OF RATIONS IN KIND, THERE IS NO BASIS FOR YOUR CONTENTION THAT YOU SHOULD HAVE BEEN PLACED IN THAT CATEGORY OF PERSONNEL ENTITLED TO THE SUBSISTENCE ALLOWANCE PRESCRIBED WHEN RATIONS IN KIND ARE NOT AVAILABLE. THERE IS NOTHING IN THE PHRASING THAT YOU REFER TO THAT REQUIRES THE CONCLUSION THAT RATIONS IN KIND WERE NOT AVAILABLE OR THAT YOU SHOULD HAVE BEEN PLACED IN THE ABOVE-REFERRED-TO CATEGORY. ALSO, THE FACT THAT THE FORM YOU REFER TO IS NO LONGER USED WOULD HAVE NO BEARING ON YOUR CLAIM.

CONCERNING POINT THREE, IT IS NOT CLEAR TO US WHAT THERE IS IN THE WORDING OF THE SENTENCE YOU REFER TO WHICH MIGHT BE INTERPRETED TO MEAN THAT RATIONS IN KIND WERE NOT AVAILABLE AT THE ACADEMY DURING THE PERIOD IN QUESTION. THE SENTENCE AUTHORIZES ADMINISTRATIVE ENROLLEES AT UNITS WHERE A GENERAL MESS HAS BEEN ESTABLISHED WHO ARE IN RECEIPT OF COMMUTED RATIONS TO BE SERVED MEALS AT THE GENERAL MESS. WITHOUT SUCH A REGULATION THE ENROLLEES REFERRED TO THEREIN PRESUMABLY WOULD NOT BE ENTITLED TO BE SERVED MEALS AT THE GENERAL MESS. WE ARE ADVISED BY THE MARITIME ADMINISTRATOR THAT THE PURPOSE OF THE PARAGRAPH WAS TO MAKE PROVISION FOR ENROLLEES WHO HAD BEEN GRANTED PERMISSION TO MESS SEPARATELY AND RECEIVE THE $1.05 SUBSISTENCE ALLOWANCE TO BE SERVED MEALS AT THE GENERAL MESS WHEN DUTY ASSIGNMENTS WOULD MAKE IT INCONVENIENT FOR THEM TO OBTAIN MEALS ELSEWHERE. WE ARE FURTHER ADVISED BY THE ADMINISTRATOR THAT THE RATES PRESCRIBED FOR SUCH MEALS IN ARTICLE 911.5 UNITED STATES MARITIME SERVICE PAY AND SUPPLY INSTRUCTIONS (REFERENCE (B) OF ALL-UNIT LETTER NO. 50-3) TOTALED $1.05 PER DAY ON THE FOLLOWING BASIS: BREAKFAST 25 CENTS, DINNER (MONDAY MEAL) 50 CENTS, AND SUPPER 30 CENTS.

AS TO YOUR FOURTH POINT, THE CAREER COMPENSATION ACT OF 1949 DOES NOT DEFINE A GENERAL MESS. UNDER THE 1949 ACT IT APPEARS THAT IF RATIONS IN KIND ARE FURNISHED ENLISTED PERSONNEL BY THE GOVERNMENT THERE IS NO ENTITLEMENT TO THE SUBSISTENCE ALLOWANCE PRESCRIBED BY THE ACT WHEN RATIONS IN KIND ARE NOT AVAILABLE. WHETHER THE GOVERNMENT ITSELF FURNISHES THE RATIONS IN KIND OR CONTRACTS TO HAVE SUCH RATIONS FURNISHED BY A PRIVATE CONCERN WOULD APPEAR IMMATERIAL. NEITHER THE RATE PAID BY THE GOVERNMENT UNDER THE FOOD SERVICE CONTRACT NOR THE MEAL PRICES CHARGED --- BY THE CONTRACTOR--- ADMINISTRATIVE ENROLLEES BELOW OFFICER RANK WHO ARE AUTHORIZED TO MESS SEPARATELY WOULD HAVE ANY BEARING IN DETERMINING THE AVAILABILITY OR NONAVAILABILITY OF RATIONS IN KIND FOR SUBSISTENCE ALLOWANCE PURPOSES. HOWEVER, IN CONNECTION WITH THE MESSING CHARGES WE NOTE THAT THE FOOD SERVICE CONTRACT AS AMENDED BY ADDENDUM NO. 3, DATED DECEMBER 3, 1956, ROVIDES:

"UNDER ITEM NO. 1 - "PRICES PER MEAL FOR OFFICERS AND OTHERS WHERE THE COST IS NOT CHARGEABLE TO THE GOVERNMENT, BUT FOR PAYMENT BY THE INDIVIDUAL," ADD A NEW PARAGRAPH TO READ:

" "PRICES TO BE PAID BY ENROLLEES BELOW OFFICER RANK SHALL BE ESTABLISHED IN ACCORDANCE WITH U.S. COAST GUARD REGULATIONS EXCEPT THAT THE RATE SHALL NOT EXCEED $1.10 PER DAY. THIS RATE IS CURRENTLY ESTABLISHED AT THE MERCHANT MARINE ACADEMY AT $1.05 PER DAY FOR THREE MEALS FOR SUCH ENROLLEES OR ON A PER MEAL BASIS: BREAKFAST 30 CENTS, LUNCH 40 CENTS, DINNER 40 CENTS. PRICES TO BE PAID BY OTHER PERSONNEL OR CASUAL VISITORS WHO HAVE BEEN GIVEN PERMISSION TO HAVE MEALS WITH THE CADET MIDSHIPMEN SHALL BE AT THE RATE OF $2.00 PER DAY PER PERSON, OR FOR INDIVIDUAL MEALS AT THE RATE OF 50 CENTS FOR BREAKFAST; 65 CENTS FOR LUNCH; 85 CENTS FOR DINNER PER PERSON.'"

PRIOR TO THIS AMENDMENT IT APPEARS THAT THE MAXIMUM THE CONTRACTOR COULD CHARGE ANYONE FOR MEALS WAS $1.10 PER DAY. AS TO THE RATE PER WEEK CHARGED HOSPITALIZED ENLISTED PERSONNEL BY THE CONTRACTOR FOR MEALS (PRESUMABLY ENLISTED ENROLLEES AUTHORIZED TO MESS SEPARATELY), THE MARITIME ADMINISTRATION ADVISES THAT IT IS INVESTIGATING THIS MATTER, BUT, AS INDICATED ABOVE, IT WOULD APPEAR IMMATERIAL AS FAR AS YOUR CLAIM IS CONCERNED. ALSO, THE FACT THAT PERSONNEL AUTHORIZED TO MESS SEPARATELY ARE NOT PERMITTED TO PARTAKE OF ANY MEALS IN THE MESS, EXCEPT IN EMERGENCIES WHEN SPECIAL PERMISSION HAS TO BE OBTAINED DOES NOT REQUIRE THE CONCLUSION THAT RATIONS IN KIND ARE OR WERE UNAVAILABLE TO PERSONNEL NOT AUTHORIZED TO MESS SEPARATELY. AS INDICATED ABOVE, IT APPEARS PROVISION WAS MADE FOR PERSONNEL LIVING OFF THE BASE TO BE SERVED MEALS AT THE GENERAL MESS WHEN DUTY ASSIGNMENTS MADE IT DIFFICULT FOR THEM TO OBTAIN MEALS ELSEWHERE.

CONCERNING YOUR LAST POINT, NAVY ENLISTED PERSONNEL STATIONED AT KINGS POINT ARE SUBJECT TO APPLICABLE REGULATIONS OF THE DEPARTMENT OF THE NAVY AND DETERMINATIONS AS TO WHETHER RATIONS IN KIND ARE AVAILABLE TO ITS PERSONNEL ARE PRIMARILY THE RESPONSIBILITY OF THAT DEPARTMENT. IT MAY BE THAT THE DEPARTMENT OF THE NAVY CONSIDERS THE MESS OPERATED BY THE MARITIME SERVICE OR ITS CONTRACTOR UNAVAILABLE TO NAVY PERSONNEL. IN ANY EVENT SINCE THE MARITIME ADMINISTRATOR REPORTS THAT RATIONS IN KIND HAVE BEEN AVAILABLE TO ADMINISTRATIVE ENROLLEES AT THE MERCHANT MARINE ACADEMY, KINGS POINT, NEW YORK, SINCE JANUARY 1, 1950, YOU ARE NOT ENTITLED TO THE SUBSISTENCE ALLOWANCE PRESCRIBED BY THE CAREER COMPENSATION ACT OF 1949 WHEN RATIONS IN KIND ARE NOT AVAILABLE.

IN VIEW OF THE FOREGOING, THE SETTLEMENT OF MARCH 26, 1957, MUST BE AND IS SUSTAINED.

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