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B-132833, OCT. 7, 1957

B-132833 Oct 07, 1957
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ECKERT: REFERENCE IS MADE TO YOUR LETTER OF JULY 27. YOU WERE ADVISED THAT THE DEPARTMENT OF THE ARMY HAS BEEN UNABLE TO LOCATE ANY ORDERS AUTHORIZING PAYMENT OF STATION PER DIEM ALLOWANCE DURING THE PERIOD IN QUESTION TO YOU. CERTIFICATES AND STATEMENTS BY CERTAIN OFFICERS AND ENLISTED PERSONNEL THAT YOU WERE AUTHORIZED OR ENTITLED TO STATION PER DIEM ALLOWANCE PRIOR TO JULY 1. AFTER DETERMINATION THAT MESSING FACILITIES OR QUARTERS ARE NOT AVAILABLE. SUCH ALLOWANCES ARE PAYABLE ONLY WHEN THE DUTY ASSIGNMENT OF THE PERSON MAKES IMPRACTICABLE THE FURNISHING OF THE RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED. THE DETERMINATION BY THE COMMANDING OFFICER CONCERNED THAT RATIONS OR QUARTERS ARE AVAILABLE.

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B-132833, OCT. 7, 1957

TO SERGEANT FIRST CLASS ARTHUR H. ECKERT:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1957, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR STATION PER DIEM ALLOWANCE INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES ARMY, FOR THE PERIOD FROM JULY 1, 1948, TO JUNE 30, 1949.

IN OUR SETTLEMENT DATED OCTOBER 23, 1956, YOU WERE ADVISED THAT THE DEPARTMENT OF THE ARMY HAS BEEN UNABLE TO LOCATE ANY ORDERS AUTHORIZING PAYMENT OF STATION PER DIEM ALLOWANCE DURING THE PERIOD IN QUESTION TO YOU; THAT, IN THE ABSENCE OF SUCH ORDERS, NO SUCH PAYMENT COULD BE MADE IN YOUR CASE. WITH YOUR LETTER DATED MARCH 29, 1956, YOU SUBMITTED A COPY OF SPECIAL ORDERS NO. 25, DATED MARCH 5, 1948, HEADQUARTERS, THIRD ZONE, AMERICAN GRAVES REGISTRATION COMMAND, EUROPEAN AREA, NANCY, FRANCE, AUTHORIZING SEPARATE RATION ALLOWANCE FOR YOU, EFFECTIVE JANUARY 1, 1948, AND CERTIFICATES AND STATEMENTS BY CERTAIN OFFICERS AND ENLISTED PERSONNEL THAT YOU WERE AUTHORIZED OR ENTITLED TO STATION PER DIEM ALLOWANCE PRIOR TO JULY 1, 1949.

ARMY REGULATIONS 35-4520, DATED DECEMBER 3, 1946, AND ARMY REGULATIONS 35 -4520, AFR 179-9, DATED JANUARY 28, 1949, GOVERNING THE PAYMENT OF MONETARY ALLOWANCES FOR QUARTERS AND SUBSISTENCE FOR ENLISTED PERSONNEL IN A NONTRAVEL STATUS, PROVIDED IN PERTINENT PART AS FOLLOWS:

"7. LIMITATION.--- MONETARY ALLOWANCE FOR QUARTERS OR SUBSISTENCE MAY NOT BE PAID IN THE ABSENCE OF AN AUTHORIZATION FOR SUCH PAYMENT, ISSUED CONTEMPORANEOUSLY, AFTER DETERMINATION THAT MESSING FACILITIES OR QUARTERS ARE NOT AVAILABLE. SUCH ALLOWANCES ARE PAYABLE ONLY WHEN THE DUTY ASSIGNMENT OF THE PERSON MAKES IMPRACTICABLE THE FURNISHING OF THE RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED, AND THE DETERMINATION BY THE COMMANDING OFFICER CONCERNED THAT RATIONS OR QUARTERS ARE AVAILABLE, IS CONCLUSIVE OF THE RIGHTS OF THE PERSON.

"9. SEPARATE RATIONS.--- ENLISTED PERSONNEL WHO ARE AUTHORIZED BY COMPETENT AUTHORITY TO MESS SEPARATELY ARE ENTITLED TO THE COMMUTATION VALUE OF THE RATION, AS ANNOUNCED IN CURRENT DEPARTMENT OF THE ARMY CIRCULARS, * * *"

IT APPEARS THAT BUT FOR YOUR MARRIAGE QUARTERS AND SUBSISTENCE WOULD HAVE BEEN FURNISHED YOU AT YOUR POST OF DUTY AND THAT YOU WERE AUTHORIZED BY PARAGRAPH 7 OF SPECIAL ORDERS NO 25, DATED MARCH 5, 1948, TO RATION SEPARATELY FROM YOUR ORGANIZATION AND RECEIVE A SEPARATE RATION ALLOWANCE FOR PERSONAL REASONS. BY SPECIAL ORDERS NO. 43, DATED JUNE 29, 1949, EFFECTIVE JULY 1, 1949, YOU WERE AUTHORIZED STATION PER DIEM ALLOWANCE FOR QUARTERS AND SUBSISTENCE. HENCE, SO FAR AS THE RECORD BEFORE US SHOWS, YOUR ORDERS INVOLVED MERELY PERMITTED YOU TO MESS SEPARATELY FROM YOUR ORGANIZATION AND CONTEMPLATED THE PAYMENT TO YOU OF ONLY THE COMMUTED VALUE OF RATIONS PRIOR TO JULY 1, 1949.

WAR DEPARTMENT CIRCULAR NO. 196, DATED JULY 25, 1947, AUTHORIZING TRAVEL AND STATION ALLOWANCES FOR MILITARY PERSONNEL TRAVELING OR ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, REFERRED TO IN YOUR LETTER, PROVIDED IN PERTINENT PART AS FOLLOWS:

"1--- REGULATIONS AND RATES. * * *

"7. STATION ALLOWANCES FOR OFFICERS.--- A. STATION ALLOWANCES AS ESTABLISHED IN THIS CIRCULAR WILL BE PAID ONLY WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE. THE WAR DEPARTMENT POLICY IS THAT GOVERNMENT QUARTERS AND GOVERNMENT MESS BE PROVIDED WHEREVER FEASIBLE. COMMANDING OFFICERS ARE DIRECTLY RESPONSIBLE THAT THIS POLICY IS STRICTLY ENFORCED. FURTHERMORE, THE JOINT ARMY-NAVY POLICY IS THAT, WHENEVER POSSIBLE, AVAILABLE QUARTERS OR MESSING FACILITIES OF EITHER DEPARTMENT BE SHARED BY OFFICERS OF BOTH SERVICES AT ANY LOCALITY WHERE ONE OR THE OTHER DEPARTMENT DOES NOT HAVE INDEPENDENT FACILITIES. ALL REQUESTS FOR ESTABLISHMENT OF STATION ALLOWANCES WILL STATE WHY GOVERNMENT QUARTERS AND GOVERNMENT MESS ARE NOT AVAILABLE.

"9. TRAVEL AND STATION ALLOWANCES FOR ENLISTED PERSONNEL. * * *

"B. THE POLICIES SET FORTH IN PARAGRAPH 7 ARE APPLICABLE TO ENLISTED PERSONNEL.'

AS INDICATED ABOVE, DURING THE PERIOD COVERED BY YOUR CLAIM A RIGHT TO PAYMENT OF MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE ACCRUED TO ENLISTED MEMBERS OF THE UNIFORMED FORCES ONLY IN THE EVENT THAT PAYMENT OF SUCH ALLOWANCES WAS SPECIFICALLY AUTHORIZED BY PROPER ORDERS ISSUED CONTEMPORANEOUSLY WITH THE PERIOD INVOLVED. SEE 8 COMP. GEN. 82. FOLLOWS THAT IN THE ABSENCE OF SUCH ORDERS AND A SHOWING THAT GOVERNMENT QUARTERS AND GOVERNMENT MESS WERE NOT AVAILABLE, NO SUCH PAYMENT MAY BE MADE IN YOUR CASE FOR THE PERIOD PRIOR TO JULY 1, 1949. ACCORDINGLY, OUR SETTLEMENT OF OCTOBER 23, 1956, MUST BE AND IS SUSTAINED.

IT IS UNFORTUNATE THAT CERTAIN OF YOUR RECORDS APPARENTLY DID NOT REFLECT THE TRUE STATUS OF YOUR CASE AT THE TIME THE ORIGINAL PAYMENTS INVOLVED WERE MADE TO YOU; HOWEVER, THE UNITED STATES IS NOT BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM BUT ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THEM. SEE 29 COMP. GEN. 520 AND THE COURT CASES CITED IN THAT DECISION. HENCE, THE AMOUNT PAID IN YOUR CASE WAS PROPERLY RECOVERED BY THE ADMINISTRATIVE OFFICIALS.

REGARDING THE STATEMENT IN THE FINAL PARAGRAPH OF YOUR LETTER DATED JULY 27, 1957, IT APPEARS THAT THE TIME NOW HAS EXPIRED FOR THE FILING OF A COMPLAINT OR PETITION IN THE COURTS IN CONNECTION WITH THE MATTER. SEE 28 U.S.C. 2401 AND 2501.

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