B-111299, OCT 31, 1952

B-111299: Oct 31, 1952

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S. MILITARY ACADEMY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 30. WHILE YOU WERE ON DUTY IN THE FREE TERRITORY OF TRIESTE. A RIGHT TO PER DIEM COULD NOT ACCRUE UNDER SUCH PROVISIONS OF LAW UNTIL SUCH PER DIEM ACTUALLY WAS PRESCRIBED. STATION PER DIEM ALLOWANCES WERE NOT PRESCRIBED FOR OFFICER PERSONNEL ON DUTY IN THE FREE TERRITORY OF TRIESTE UNTIL THAT PLACE WAS ADDED AS ONE OF THE CLASS V LOCALITIES OF WAR DEPARTMENT CIRCULAR NO. 196-47 BY WAR DEPARTMENT CIRCULAR NO. 46. WHILE IT IS STATED IN THE LATTER REGULATIONS THAT SUCH ACTION WAS EFFECTIVE AS OF SEPTEMBER 15. SINCE IT IS WELL ESTABLISHED THAT A PER DIEM ALLOWANCE MAY NOT BE PRESCRIBED RETROACTIVELY. 24 COMP. 1949 - WERE NOT PROMULGATED UNTIL AFTER YOUR RETURN TO THE UNITED STATES IN APRIL 1948.

B-111299, OCT 31, 1952

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL JAMES G. HOLLAND, JR., INFANTRY; U. S. MILITARY ACADEMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1952, RELATIVE TO THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED JUNE 27, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION SUBSISTENCE PER DIEM AT THE RATE OF $3 PER DAY DURING THE PERIOD JULY 1, 1947, TO APRIL 6, 1948, WHILE YOU WERE ON DUTY IN THE FREE TERRITORY OF TRIESTE.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, CONTAINED AUTHORITY TO PRESCRIBE A PER DIEM ALLOWANCE IN LIEU OF ACTUAL EXPENSES FOR MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, WHETHER OR NOT IN A TRAVEL STATUS. HOWEVER, A RIGHT TO PER DIEM COULD NOT ACCRUE UNDER SUCH PROVISIONS OF LAW UNTIL SUCH PER DIEM ACTUALLY WAS PRESCRIBED. STATION PER DIEM ALLOWANCES WERE NOT PRESCRIBED FOR OFFICER PERSONNEL ON DUTY IN THE FREE TERRITORY OF TRIESTE UNTIL THAT PLACE WAS ADDED AS ONE OF THE CLASS V LOCALITIES OF WAR DEPARTMENT CIRCULAR NO. 196-47 BY WAR DEPARTMENT CIRCULAR NO. 46, DATED FEBRUARY 24, 1948, AND WHILE IT IS STATED IN THE LATTER REGULATIONS THAT SUCH ACTION WAS EFFECTIVE AS OF SEPTEMBER 15, 1947, THIS OFFICE HAS REGARDED FEBRUARY 24, 1948, AS THE EFFECTIVE DATE OF SUCH REGULATIONS, SINCE IT IS WELL ESTABLISHED THAT A PER DIEM ALLOWANCE MAY NOT BE PRESCRIBED RETROACTIVELY. 24 COMP. GEN. 362, 364; ID. 439. THE REGULATIONS TO WHICH YOU REFER IN SUBMITTING YOUR CLAIM - SPECIAL REGULATIONS 35-3080-1, MAY 23, 1949 - WERE NOT PROMULGATED UNTIL AFTER YOUR RETURN TO THE UNITED STATES IN APRIL 1948, AND CONSEQUENTLY SUCH REGULATIONS HAVE NO BEARING ON YOUR CLAIM.

PARAGRAPH 7 OF SAID WAR DEPARTMENT CIRCULAR NO. 196 PROVIDES FOR THE PAYMENT OF THE STATION SUBSISTENCE ALLOWANCE PRESCRIBED THEREIN "ONLY WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE." "GOVERNMENT MESS" FOR OFFICERS IS DEFINED IN PARAGRAPH 2F(1) OF THE LAST- MENTIONED CIRCULAR AS AMENDED BY WAR DEPARTMENT CIRCULAR NO. 80 47, AS AN OFFICERS' MESS OR ANY ORGANIZATIONAL MESS OPERATED FOR ENLISTED PERSONNEL. YOU ADMIT THE ARMY MESSES WERE AVAILABLE AT TRIESTE BUT STATE THAT YOU COULD FEED YOUR WIFE AND TWO SMALL CHILDREN AT SUCH MESSES ONLY AT AN INCONVENIENCE AND EXPENSE, INCLUDING TRANSPORTATION TO A FAR DISTANT MESS. YOU FURTHER STATE THAT THE ARMY COMMISSARY AVAILABLE AT YOUR STATION WAS NOT APPOINTED IN A MANNER TO SERVE ALL THE NEEDS OF YOUR FAMILY. YOU ARE ADVISED THAT THE GOVERNMENT WAS NOT REQUIRED TO FEED YOUR FAMILY AT PUBLIC EXPENSE. OFFICERS WERE PAID A SUBSISTENCE ALLOWANCE UNDER THE PROVISIONS OF SECTION 5 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, AND THEY WERE REQUIRED TO SUBSIST THEMSELVES AND THEIR FAMILIES AT PERSONAL EXPENSE. IN THE EVENT THAT THEY WERE ORDERED TO DUTY IN A FOREIGN COUNTRY, THEY WERE ENTITLED TO THE ADDITIONAL STATION SUBSISTENCE ALLOWANCE AS PROVIDED IN SAID CIRCULAR NO. 196, AS AMENDED, ONLY IN THE EVENT THAT A GOVERNMENT MESS WAS NOT AVAILABLE TO THEM, PERSONALLY, AT THE FOREIGN STATION. IT WAS NOT UNTIL THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, WAS ENACTED THAT AUTHORITY WAS GRANTED TO CONSIDER THE COST OF LIVING OF OFFICERS' DEPENDENTS IN FIXING THE RATE OF PER DIEM PAYABLE AT FOREIGN POSTS OF DUTY. SEE SECTION 303(B) THEREOF.

YOUR PURPOSE IN REFERRING TO THE QUARTERS OCCUPIED BY YOU AND YOUR FAMILY AS NOT BEING "TRUE GOVERNMENT QUARTERS" IS NOT CLEAR. YOU HAVE NOT HERETOFORE SUBMITTED A CLAIM FOR THE PORTION OF THE STATION PER DIEM ALLOWANCE AND THE CLAIM HERE BEING CONSIDERED CONTAINS THE UNQUALIFIED STATEMENT THAT GOVERNMENT QUARTERS WERE AVAILABLE DURING THE ENTIRE PERIOD OF YOUR CLAIM.

WITH RESPECT TO YOUR STATEMENT CONCERNING PAYMENT OF STATION SUBSISTENCE PER DIEM TO OFFICERS PERMANENTLY STATIONED IN LONDON, ENGLAND, IN 1951, YOU ARE ADVISED THAT THE REGULATIONS CONCERNING AVAILABILITY OF A GOVERNMENT MESS, ISSUED UNDER AUTHORITY OF SECTION 303(B) OF SAID CAREER COMPENSATION ACT, DIFFER CONSIDERABLY FROM THE REGULATIONS CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 196-47. SEE PARAGRAPH 4301-5, OF THE JOINT TRAVEL REGULATIONS. A RIGHT TO SUCH ALLOWANCE COULD ACCRUE TO AN OFFICER UNDER THE LATTER REGULATIONS UNDER CIRCUMSTANCES NOT CONTEMPLATED BY THE FORMER.

UNDER THE CIRCUMSTANCES DISCLOSED, THERE IS NOT AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JUNE 27, 1952, ..END :