B-111379, APR. 22, 1958

B-111379, APR. 22, 1958

TO LIEUTENANT COLONEL PHILIP B. HENSHAW, JR.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1958, IN EFFECT REQUESTING A REVIEW, ON THE BASIS OF THE CASE OF AXUP V. UNITED STATES, C.CLS. NO. 56-53, OF OUR SETTLEMENT OF JUNE 27, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD OCTOBER 5, 1947, TO JUNE 11, 1949, WHILE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE.

ALTHOUGH AS STATED IN YOUR LETTER, A JUDGMENT WAS GIVEN IN FAVOR OF THE CLAIMANTS IN THE CASE OF ROY W. AXUP, ET AL V. UNITED STATES, C.CLS. NO. 56-53, SUCH ACTION IN THE FORM OF AN ORDER BASED ON A STIPULATION OF THE PARTIES IS BINDING ONLY UPON THE PARTIES TO THAT ACTION AND NOT UPON THE GENERAL ACCOUNTING OFFICE. HENCE, IT FORMS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

IN YOUR COMMUNICATION OF JULY 6, 1951, YOU CERTIFIED THAT NEITHER GOVERNMENT QUARTERS NOR GOVERNMENT MESS WAS AVAILABLE DURING THE PERIOD OF YOUR CLAIM. YOU CERTIFIED ALSO THAT YOU DEPENDENTS RESIDED IN TRIESTE DURING THE PERIOD OF YOUR CLAIM.

PARAGRAPH 7A, WAR DEPARTMENT CIRCULAR 196, DATED JULY 25, 1947, PROVIDED THAT STATION ALLOWANCES WILL BE PAID ONLY WHEN GOVERNMENT QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE. THIS REGULATION WAS SUPERSEDED BY PARAGRAPH 4A SPECIAL ARMY REGULATIONS 35-3080-1, DATED MAY 23, 1949, WHICH PROVIDED THAT STATION PER DIEM ALLOWANCE IS AUTHORIZED WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT AVAILABLE. PARAGRAPH 2F/1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS AMENDED BY DEPARTMENT OF THE ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, DEFINES "GOVERNMENT MESS" AS FOLLOWS:

"FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS MESS. ANY ORGANIZATIONAL MESS OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A "GOVERNMENT MESS" FOR THE PURPOSE OF THIS CIRCULAR. RESTAURANTS AND CAFETERIAS OPERATED BY ARMY EXCHANGES AS OFFICERS' CLUBS ARE NOT CONSIDERED TO BE ,GOVERNMENT MESS".'

PARAGRAPH 2F/1), SPECIAL ARMY REGULATIONS 35-3080-1 DEFINES "GOVERNMENT MESS" IN SIMILAR LANGUAGE, THE DIFFERENCE BEING THAT THE DEFINITION INCLUDES ORGANIZATIONAL MESSES OPERATED FOR AIR FORCE ENLISTED PERSONNEL.

THE FOREGOING REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS INSTALLATION, IF EITHER AN OFFICER'S MESS OR ORGANIZATIONAL MESS FOR ENLISTED PERSONNEL WAS OPERATED THEREAT. THE INFORMATION FURNISHED

FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES WHICH WERE AVAILABLE AT TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE AND HENCE, AN INVESTIGATION WAS CONDUCTED BY REPRESENTATIVES OF THIS OFFICE IN AN ATTEMPT TO LEARN THE FACTS WITH RESPECT THERETO. SUCH INVESTIGATION INCLUDED A REPORT AS TO THE EXISTENCE OF OFFICERS' MESS OR MESSES, AND WHILE IT IS INDICATED THAT SOME OFFICERS MESSES WERE IN OPERATION AT ONE TIME, IT IS NOT NOW POSSIBLE TO DETERMINE WITH ANY DEGREE OF ACCURACY WHEN AND FOR WHAT OFFICERS SUCH MESSES WERE AVAILABLE. IT IS CLEAR, HOWEVER, THAT ORGANIZATIONAL MESSES FOR ENLISTED PERSONNEL WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. SEE B-111431 DATED MARCH 17, 1953. UNDER THESE CIRCUMSTANCES, IT WOULD APPEAR THAT A "GOVERNMENT MESS," AS DEFINED IN THE GOVERNING REGULATIONS, WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM.

THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY PRIOR TO THE ENACTMENT OF SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 815, WAS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS TO THEM INDIVIDUALLY AND DEPENDENTS WERE NOT CONSIDERED. SEE PARAGRAPHS 2E AND 7A, WAS DEPARTMENT CIRCULAR NO. 196, AND PARAGRAPHS 2E AND 4A, SPECIAL REGULATIONS 35-3080-1. INFORMATION FURNISHED THIS OFFICE INDICATES THAT BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FORALL OFFICERS WHO WISHED TO OCCUPY THEM.