B-103602, FEB 2, 1953

B-103602, FEB 2, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTERS OF AUGUST 1, 1952, AND NOVEMBER 6, 1952, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, IN WHICH IT IS REQUESTED THAT THIS OFFICE RECONSIDER ITS DECISION OF FEBRUARY 19, 1952, TO COLONEL ARTHUR T. CAMERON, USAF, AND REPORT TO THE CONGRESS, DATED MARCH 6, 1952, B-103602, RELATIVE TO THE PAYMENT OF STATION SUBSISTENCE PER DIEM ALLOWANCE TO OFFICER PERSONNEL ASSIGNED TO PERMANENT DUTY AT ELMENDORF AIR FORCE BASE AND FORT RICHARDSON, ALASKA, DURING THE PERIOD FEBRUARY 1, 1949, TO OCTOBER 12, 1950.

THE SAID LETTERS CONTAIN SEVERAL STATEMENTS POINTING OUT THE DIFFERENCES BETWEEN THE CONCLUSIONS REACHED IN THE ABOVE-MENTIONED DECISION AND REPORT AND THE VIEWS OF THE DEPARTMENT OF THE AIR FORCE. FIRST IT IS URGED THAT THE NOTICES POSTED AT FORT RICHARDSON DATED AUGUST 29, 1947, FEBRUARY 1, 1949, AUGUST 1, 1949, APRIL 17, 1950, AND SEPTEMBER 1, 1950, STATING THAT GOVERNMENT QUARTERS AND MESS WERE AVAILABLE FOR OFFICERS AND ENLISTED PERSONNEL THEREAT, DID NOT MEAN, "NOR DOES IT APPEAR THAT THEY WERE UNDERSTOOD AT THE TIME TO MEAN," THAT A GOVERNMENT MESS WAS AVAILABLE TO ALL OFFICERS, IT BEING INTENDED ONLY TO ADVISE THAT A GOVERNMENT MESS WAS AVAILABLE TO TRANSIENT OFFICERS. IN SUPPORT OF SUCH CONCLUSION REFERENCE IS MADE TO SUBSEQUENT STATEMENTS BY COMMANDING OFFICERS WHO SIGNED MOST OF THE ABOVE-MENTIONED NOTICES, TO THE EFFECT THAT A GOVERNMENT MESS AS TECHNICALLY DEFINED IN PARAGRAPH 2F(1), WAR DEPARTMENT CIRCULAR NO. 196, 1947, AND PARAGRAPH 2F(1), AIR FORCE REGULATION 173-30, WAS NOT OPERATED FOR ALL OFFICER PERSONNEL ON DUTY AT THAT PLACE DURING THE PERIOD FEBRUARY 1, 1949, TO OCTOBER 12, 1950. COLONEL T.L. MOSLEY, THE COMMANDING OFFICER AT THAT PLACE DURING THE PERIOD SEPTEMBER 1946 THROUGH SEPTEMBER 1948, HAS EXPRESSED A SIMILAR OPINION AND HAS FURNISHED THE ADDITIONAL INFORMATION THAT IN ACCORDANCE WITH A POLICY ESTABLISHED BY THE ALASKAN AIR COMMAND, OFFICERS WERE FORBIDDEN TO UTILIZE ENLISTED MESS HALLS BECAUSE OF THE CROWDED CONDITIONS PREVAILING IN SUCH MESS HALLS. WHILE THE STATEMENTS MENTIONED ARE PERSUASIVE, THEY APPEAR TO BE IN CONFLICT WITH THE EXPRESS PROVISIONS OF SUCH NOTICES AND THE APPARENT INTERPRETATION PLACED ON SUCH NOTICES BY ALL PERSONNEL AT THE TIME THEY WERE POSTED. IF THE LANGUAGE USED IN PARAGRAPH 1 OF SUCH NOTICES IS TO BE GIVEN ITS ORDINARY MEANING, IT APPEARS CLEAR THAT SUCH NOTICES STATED THAT INSOFAR AS PAYMENT OF STATION PER DIEM ALLOWANCES WERE CONCERNED, GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO ALL OFFICERS AND ENLISTED PERSONNEL LOCATED AT FORT RICHARDSON AT THAT TIME, WITHOUT EXCEPTION. PARAGRAPH 2 OF SUCH NOTICES MERELY CONTAINED THE ADDITIONAL INFORMATION THAT A FIELD RATION MESS WAS AVAILABLE THEREAT FOR TRANSIENT OFFICERS WHO PREFERRED THAT TYPE OF MESS. IF IT WAS INTENDED TO ADVISE THAT A GOVERNMENT MESS WAS AVAILABLE ONLY TO TRANSIENT OFFICERS, IT IS DIFFICULT TO UNDERSTAND WHY CLAIMS FOR SUCH PER DIEM WERE NOT SUBMITTED AND PAID CONCURRENTLY AT THAT TIME. LARGE NUMBERS OF OFFICERS APPEAR TO HAVE SERVED AT FORT RICHARDSON AND ELMENDORF AIR FORCE BASE BETWEEN AUGUST 29, 1947, DATE OF THE FIRST NOTICE AND OCTOBER 12, 1950. YET, AS FAR AS THE RECORD SHOWS, CLAIMS FOR SUCH ALLOWANCES WERE NOT EVEN SUBMITTED FOR A PERIOD OF OVER 3 YEARS AND APPARENTLY NONE WERE PAID UNTIL MONTHS AFTER THE LATTER DATE. SUCH ACTION APPEARS CONCLUSIVE AS TO THE CONTEMPORANEOUS INTERPRETATION PLACED ON THE NOTICES AT THAT TIME BY ALL CONCERNED, INCLUDING THE COMMANDING OFFICERS WHO CAUSED THEM TO BE POSTED. OF INTEREST IN THIS CONNECTION IS A STATEMENT OF COLONEL A.N. LAGRIPPO IN LETTER OF MARCH 14, 1951, THAT "I PERSONALLY FEEL THAT THERE IS NO REASON OR SUBSTANTIATION FOR A CLAIM AGAINST THE GOVERNMENT FOR STATION SUBSISTENCE ALLOWANCES IN THE AMOUNT OF $3.75 PER DIEM." ALONG THE SAME LINE IS A STATEMENT FROM COLONEL JAMES T. POSEY, THE COMMANDING OFFICER WHO APPEARS TO HAVE BEEN RESPONSIBLE FOR THE ESTABLISHMENT OF THE FIELD RATION MESS FOR OFFICERS IN BUILDING T-290, ON OCTOBER 13, 1950, IN THIRD INDORSEMENT OF DECEMBER 15, 1950, TO THE ACCOUNTING AND DISBURSING OFFICER, 57TH FIGHTER-INTERCEPTOR WING THAT "GOVERNMENT QUARTERS AND GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO THE OFFICER (COLONEL CAMERON) IN HIS OWN RIGHT."

THE CLAIMS WHICH HAVE BEEN PAID ADMINISTRATIVELY APPEAR TO HAVE BEEN MADE ON THE BASIS OF THE CERTIFICATE SIGNED BY BRIGADIER GENERAL WALTER R. AGEE ON APRIL 11, 1951, CONCERNING THE NONAVAILABILITY OF A "CENTRALIZED GOVERNMENT MESS," WHICH APPARENTLY HAS BEEN REGARDED AS ESTABLISHING, RETROACTIVELY, THE NONEXISTENCE OF ANY GOVERNMENT MESS, DESPITE THE PUBLIC NOTICES TO THE CONTRARY WHICH WERE CAUSED TO BE POSTED BY HIS PREDECESSORS IN OFFICE WHILE THEY WERE SERVING AT ELMENDORF AIR FORCE BASE. IT IS NOT UNDERSTOOD HOW THE LATTER COMMANDING OFFICERS COULD HAVE ACTED OTHERWISE, IF THEY WERE TO COMPLY WITH APPLICABLE REGULATIONS. SUCH REGULATIONS SPECIFICALLY STATED THAT "ANY ORGANIZATIONAL MESS, OPERATED FOR ARMY AND NAVY ENLISTED PERSONNEL, WILL BE CONSTRUED AS A 'GOVERNMENT MESS.'" SUCH LANGUAGE IS CLEAR AND UNAMBIGUOUS AND THERE APPEARS TO BE NO QUESTION BUT THAT ORGANIZATIONAL MESSES WERE OPERATED FOR ALL ENLISTED PERSONNEL AT THAT PLACE. ANY SUGGESTION THAT SUCH REGULATIONS REQUIRED THAT MEALS ACTUALLY BE FURNISHED OFFICERS AT AN ORGANIZATIONAL MESS, IN ORDER FOR SUCH MESS TO BE REGARDED AS A GOVERNMENT MESS FOR OFFICERS, APPEARS TO BE SET AT REST WHEN IT IS REMEMBERED THAT THE WORDS "WHICH FURNISHES MEALS TO OFFICERS" APPEARING IN PARAGRAPH 2F(1), WAR DEPARTMENT CIRCULAR NO. 196- 47, WERE DELETED THEREFROM BY DEPARTMENT OF THE ARMY CIRCULAR NO. 80-47. THE REGULATIONS APPARENTLY CONTEMPLATED THAT ORGANIZATIONAL MESSES WOULD BE MADE AVAILABLE TO OFFICERS, AT LEAST IN THE ABSENCE OF OTHER GOVERNMENT FACILITIES, AND THE EXISTENCE OF CROWDED CONDITIONS WOULD NOT TAKE SUCH MESSES OUT FROM UNDER SUCH REGULATIONS. THAT THE ORGANIZATION MESSES ACTUALLY WERE USED BY AN UNDETERMINED NUMBER OF OFFICERS AT ELMENDORF AND FORT RICHARDSON DURING THE PERIOD IN QUESTION IS SHOWN BY THE FOLLOWING STATEMENT BY COLONEL HARRY W. GENEROUS IN HIS LETTER OF FEBRUARY 28, 1951, TO GENERAL WALTER R. AGEE:

"*** OF COURSE THERE WAS ALWAYS SOME OFFICERS EATING IN THEIR UNIT MESS, THIS WAS TRUE OF THE FIGHTER SQUADRONS, THE TROOP CARRIER SQUADRON, THE 925TH AVIATION ENGINEERS AND OTHERS. UNLESS THEY PAID FOR THEIR MEALS BY PAYROLL DEDUCTIONS IT WOULD BE EXTREMELY DIFFICULT TO SAY WHO USED THE UNIT MESS FACILITIES."

NOT QUESTIONING THAT THE CROWDED CONDITIONS WERE PROPERLY FOR CONSIDERATION BY COMMANDING OFFICERS CHARGED WITH THE RESPONSIBILITY OF ESTABLISHING GOVERNMENT MESSES WHEREVER FEASIBLE (SEE PARAGRAPH 7, WAR DEPARTMENT CIRCULAR 196-47 AND AMENDATORY REGULATIONS), IN DECIDING WHETHER OR NOT THE ORGANIZATIONAL MESSES SHOULD BE ENLARGED TO ACCOMMODATE ALL OFFICERS, WHETHER SEPARATE OFFICERS MESSES SHOULD BE SET UP, OR WHETHER A POLICY OF RESTRICTING THE USE OF ORGANIZATIONAL MESSES BY OFFICERS MIGHT BE FOLLOWED IN VIEW OF THE EXISTENCE OF OTHER FACILITIES, IT MAY NOT BE ADMITTED THAT THE DEPARTMENTAL REGULATION CONTEMPLATED A FURTHER ALTERNATIVE OF PAYING OFFICERS A SPECIAL SUBSISTENCE ALLOWANCE IN LIEU OF PERMITTING THEM TO EAT AT OTHERWISE AVAILABLE ORGANIZATION MESSES OR ESTABLISHING OFFICERS MESSES FOR THEM. APPARENTLY THE FAILURE TO ESTABLISH OFFICERS MESSES WAS LARGELY INFLUENCED BY THE FACT THAT OTHER MESSING FACILITIES (OFFICERS' CLUBS) WERE AVAILABLE FOR OFFICERS AT SUBSTANTIALLY THE SAME COST AS COULD HAVE BEEN PROVIDED AT AN ESTABLISHED OFFICERS' MESS USING THE SAME FACILITIES, AND THAT THE OFFICERS CLUB MESSES WERE PREFERRED BY OFFICERS GENERALLY AND ACTUALLY RESULTED IN A FINANCIAL ADVANTAGE TO OFFICERS WITH DEPENDENTS SINCE DEPENDENTS WERE NOT PERMITTED TO EAT AT GOVERNMENT MESSES. COLONEL GENEROUS STATED IN HIS LETTER TO GENERAL AGEE THAT "ACTUALLY THERE WAS NO DEMAND FOR AN OFFICERS' GOVERNMENT MESS." UNDER SUCH CONDITIONS IT WOULD SEEM CLEAR THAT BOTH THE LETTER OF THE REGULATIONS (ACTUAL EXISTENCE OF ORGANIZATIONAL MESSES) AND THE SPIRIT OF THE LAW ON WHICH THE REGULATIONS WERE BASED (PER DIEM TO COVER SUBSTANTIAL INCREASED LIVING COSTS OF THE PERSONNEL CONCERNED) WILL BE GIVEN PROPER EFFECT IF THE ABOVE-MENTIONED ORIGINAL CONTEMPORARY POSTED NOTICES OF AVAILABILITY OF GOVERNMENT MESS ARE TREATED AS CONCLUSIVE OF THE OFFICERS' RIGHTS IN THAT RESPECT.

IT WAS STATED IN THE DECISION OF FEBRUARY 19, 1952, THAT IT WAS UNCONSCIONABLE AND BEYOND THE CONTEMPLATION OF THE STATUTE THAT PAYMENT OF A SUBSISTENCE ALLOWANCE OF $3.75 PER DAY BE MADE TO AN OFFICER, IF HIS MEALS ACTUALLY COST HIM ONLY SLIGHTLY MORE THAN HE WOULD HAVE HAD TO PAY AT A REGULAR OFFICERS' MESS. THE FACTUAL BASIS FOR SUCH STATEMENT HAS BEEN QUESTIONED UPON THE ALLEGATION THAT THE MENU PRICES AT THE OFFICERS' CLUBS DID NOT REPRESENT THE ACTUAL COST TO MEMBERS OF MEALS SOLD IN THE DINING ROOMS. THE ARGUMENTS ADDUCED IN SUPPORT OF THAT VIEW HAVE BEEN CAREFULLY CONSIDERED BUT THEY ARE NOT REGARDED AS SUFFICIENT TO REQUIRE ANY CHANGE IN THE ABOVE-MENTIONED STATEMENT. WITH RESPECT TO THE VIEW EXPRESSED THAT SUCH STATEMENT DISREGARDS THE "BROAD DISCRETIONARY AUTHORITY" GRANTED TO THE PRESIDENT BY THE CONGRESS IN FIXING THE RATES OF PER DIEM FOR DUTY OUTSIDE THE UNITED STATES, IN THAT DUE CONSIDERATION WAS NOT GIVEN TO THE AUTHORITY TO CONSIDER "OTHER NECESSARY INCIDENTAL EXPENSES," IT APPEARS SUFFICIENT TO DIRECT ATTENTION TO THE FACT THAT IF OTHER INCIDENTAL EXPENSES WERE CONSIDERED BY THE DEPARTMENTS IN FIXING THE RATES PRESCRIBED IN THE REGULATIONS, IT APPEARS CLEAR THAT IT WAS THOUGHT THAT SUCH EXPENSES WOULD NOT BE INCURRED BY AN OFFICER FOR WHOM BOTH GOVERNMENT QUARTERS AND MESS WERE AVAILABLE, SINCE NO PER DIEM WAS PRESCRIBED IN SUCH REGULATIONS FOR DUTY AT STATIONS WHERE SUCH CONDITIONS PREVAILED. THERE IS NOTHING IN THE RECORD WHICH EVEN HINTS THAT ANY INCIDENTAL EXPENSES WHICH MIGHT HAVE BEEN INCURRED BY AN OFFICER ON DUTY AT ELMENDORF AIR FORCE BASE WOULD HAVE BEEN ANY LESS IF A SEPARATE OFFICERS' MESS HAD BEEN IN OPERATION. BUT HOWEVER THAT MAY BE, THE FACT REMAINS THAT THERE WERE ORGANIZATIONAL MESSES AT THE STATION AND THAT APPEARS CONCLUSIVE UNDER THE GOVERNING REGULATION.

FOR SUCH REASONS, THIS OFFICE FINDS NO SUFFICIENT BASIS TO MODIFY THE CONCLUSIONS PREVIOUSLY REACHED THAT THE ALLOWANCE OF CLAIMS SIMILAR TO THAT OF COLONEL CAMERON WOULD RESULT IN EXPENDITURES OF PUBLIC FUNDS NOT CONTEMPLATED BY LAW. AT LEAST, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO ALLOW SUCH CLAIMS OR TO APPROVE ADMINISTRATIVE PAYMENTS MADE ON SIMILAR CLAIMS. HAD THE DISBURSING OFFICER'S REQUEST FOR AN ADVANCE DECISION AS TO THE LEGALITY OF SUCH QUESTIONABLE RETROACTIVE CLAIMS BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION, AS CONTEMPLATED BY LAW (SEE 31 U.S.C. 74), INSTEAD OF BEING RETURNED WITH AN ADMINISTRATIVE OPINION THAT SUCH CLAIMS MIGHT BE PAID, THE RESULTING DIFFICULTIES OF COLLECTING BACK THE LARGE AMOUNT OF ERRONEOUS PAYMENTS WOULD HAVE BEEN AVOIDED.