B-110962, APR. 27, 1956

B-110962, APR. 27, 1956

TO MAJOR ROBERT M. STUART, INFANTRY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1955, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR STATION PER DIEM ALLOWANCE DURING THE PERIOD OCTOBER 10, 1947, TO JUNE 30, 1948, WHILE YOU WERE ON DUTY IN THE FREE TERRITORY OF TRIESTE, THE DISALLOWANCE OF WHICH WAS SUSTAINED IN A DECISION ADDRESSED TO YOU AUGUST 29, 1952, B 110962.

YOUR CLAIM FOR THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE WAS DISALLOWED FOR REASONS STATED IN A DECISION OF FEBRUARY 19, 1952, 31 COMP. GEN. 399, A PORTION OF WHICH WAS QUOTED IN THE DECISION OF AUGUST 29, 1952. YOU QUESTION THE APPLICABILITY OF THE EARLIER DECISION FOR THE STATED REASON THAT THE DEPENDENTS OF THE CLAIMANT IN THAT CASE WERE NOT PRESENT AT HIS STATION. THE RECORD SHOWS, HOWEVER, THAT THE OFFICER'S DEPENDENT WAS AT HIS STATION, SINCE HIS DEPENDENT (WIFE) ACTUALLY LIVED WITH HIM DURING A PART OF THE PERIOD OF HIS CLAIM. WHILE THE QUOTED PORTION OF THE DECISION OF FEBRUARY 19, 1952, DOES NOT SO SHOW, THE OFFICER'S CLAIM COVERED THE PERIOD FEBRUARY 25, 1948, TO NOVEMBER 24, 1949. HIS DEPENDENT JOINED HIM AT HIS STATION IN APRIL 1948. AS WAS EXPLAINED IN THAT DECISION, AN OFFICER'S RIGHT TO STATION QUARTERS PER DIEM UNDER THE PROVISIONS OF LAW AND REGULATIONS IN EFFECT AT THAT TIME WAS BASED ON THE AVAILABILITY OF GOVERNMENT QUARTERS TO HIM PERSONALLY, WITHOUT REGARD TO WHETHER SUCH QUARTERS ALSO WERE AVAILABLE FOR HIS DEPENDENTS.

WHILE YOU HAVE NOT HERETOFORE TAKEN THAT VIEW, YOU NOW QUESTION THAT A GOVERNMENT MESS WAS AVAILABLE DURING THE PERIOD OF YOUR CLAIM. PARAGRAPH 2F (1), WAR DEPARTMENT CIRCULAR NO. 196-47, AS AMENDED BY THE DEPARTMENT OF THE ARMY CIRCULAR NO. 80-47, PROVIDED WITH RESPECT TO A ,GOVERNMENT MESS" FOR OFFICERS THAT "ANY ORGANIZATIONAL MESS, OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL, WILL BE CONSTRUED AS A "GOVERNMENT MESS" FOR THE PURPOSE OF THIS CIRCULAR.' IT IS WELL ESTABLISHED THAT ORGANIZATIONAL MESSES WERE OPERATED IN TRIESTE DURING THE PERIOD INVOLVED AND IT HAS BEEN CONCLUDED THAT NO RIGHT TO THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE ACCRUED TO OFFICERS IN CONNECTION WITH DUTY PERFORMED IN TRIESTE WHILE SUCH REGULATIONS WERE IN EFFECT. DECISION OF MARCH 17, 1953, B- 111431. ACCORDINGLY, THE DECISION OF AUGUST 29, 1952, IS AFFIRMED.

WITH RESPECT TO YOUR STATEMENT THAT YOU UNDERSTAND THAT A SOMEWHAT SIMILAR CLAIM HAS RECENTLY BEEN ADJUDICATED IN FAVOR OF THE CLAIMANT IN THE UNITED STATES COURT OF CLAIMS, IT IS BELIEVED THAT THE CASE TO WHICH YOU REFER IS AXUP ET AL. V. UNITED STATES, C.CLS. NO. 56-53. THAT CASE IS STILL PENDING BEFORE THE COURT.