B-111431, MAR 17, 1953

B-111431: Mar 17, 1953

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INFANTRY: REFERENCE IS MADE TO YOUR LETTER OF JULY 30. 1951 - LESS 18 DAYS FOR WHICH SUCH ALLOWANCE IS NOT CLAIMED - WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. PROVIDES THAT STATION PER DIEM ALLOWANCES WILL BE PAID "ONLY WHERE GOVERNMENT MESS AND/OR GOVERNMENT QUARTERS ARE NOT AVAILABLE.". A GOVERNMENT MESS IS DEFINED IN PARAGRAPH 2F(1). AS FOLLOWS: "FOR OFFICERS. - 'GOVERNMENT MESS' IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THESE REGULATIONS. A RESTAURANT OR CAFETERIA OPERATED BY ARMY OR AIR FORCE EXCHANGES OR OFFICERS' CLUBS IS NOT CONSIDERED TO BE A 'GOVERNMENT MESS.'" THE FOREGOING REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS INSTALLATION.

B-111431, MAR 17, 1953

PRECIS-UNAVAILABLE

CAPTAIN FLOYD R. STANFIELD, INFANTRY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1952, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JUNE 27, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION SUBSISTENCE PER DIEM DURING THE PERIOD JUNE 9, 1949, TO FEBRUARY 28, 1951 - LESS 18 DAYS FOR WHICH SUCH ALLOWANCE IS NOT CLAIMED - WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE.

PARAGRAPH 3A, ARMY REGULATIONS 35-3080, PROVIDES THAT STATION PER DIEM ALLOWANCES WILL BE PAID "ONLY WHERE GOVERNMENT MESS AND/OR GOVERNMENT QUARTERS ARE NOT AVAILABLE." A GOVERNMENT MESS IS DEFINED IN PARAGRAPH 2F(1), SPECIAL REGULATIONS 35-3080-1, 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, AIR FORCE, OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THESE REGULATIONS. A RESTAURANT OR CAFETERIA OPERATED BY ARMY OR AIR FORCE EXCHANGES OR OFFICERS' CLUBS IS NOT CONSIDERED TO BE A 'GOVERNMENT MESS.'"

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 OFFICERS' 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. AS TO THE NUMBER OF OFFICERS WHO ATE THEIR MEALS IN ORGANIZATIONAL MESSES, THE EVIDENCE IS CONFLICTING. HOWEVER, IT WOULD SEEM THAT AT LEAST AT ONE TIME LARGE NUMBERS OF OFFICERS ATE THEIR MEALS AT SUCH MESSES SINCE BRIGADIER GENERAL PAUL W. CARRAWAY, COMMANDING OFFICER OF THE 351ST INFANTRY REGIMENT AT TRIESTE FROM AUGUST 1949 TO OCTOBER 1951, STATED IN A RECENT INTERVIEW THAT AT THE TIME OF HIS ARRIVAL IN TRIESTE, HE FOUND MANY OF THE OFFICERS WERE EATING IN THE ENLISTED MEN'S ORGANIZATIONAL MESSES AND THAT HE CONSIDERED THE PRACTICE TO BE GENERAL THROUGHOUT TRIESTE AT THAT TIME. ACCURATE INFORMATION APPEARS TO BE AVAILABLE AS TO THE EXACT COST OF MEALS IN THE VARIOUS MESSES AND OFFICERS' CLUBS AS COMPARED WITH THE COST AT ORGANIZATIONAL MESSES. HOWEVER, THE RECORD CONTAINS STATEMENTS INDICATING THAT THE PRICES CHARGED FOR THE MEALS AT SUCH PLACES WERE "REASONABLE."

WHILE SOME IMMATERIAL FACTUAL DIFFERENCES MAY EXIST, THE BASIC SITUATION HERE INVOLVED IS NOT UNLIKE THAT WHICH EXISTED AT ELMENDORF AIR FORCE BASE, FORT RICHARDSON, ALASKA, PRIOR TO OCTOBER 12, 1950, AND WHICH WAS CONSIDERED IN DECISIONS OF THIS OFFICE DATED FEBRUARY 19, 1952, 31 COMP. GEN. 399, AND FEBRUARY 2, 1953, B-103602. AS TO THE QUESTION OF THE INTENT OF THE REGULATIONS WITH RESPECT TO PAYMENT OF STATION SUBSISTENCE PER DIEM TO OFFICERS AT OVERSEAS INSTALLATIONS WHERE ORGANIZATIONAL MESSES WERE OPERATED FOR ENLISTED PERSONNEL, IT WAS STATED IN THE LATTER DECISION:

"*** SUCH REGULATIONS (PARAGRAPH 2F(1), WAR DEPARTMENT CIRCULAR NO. 196- 1947, AS AMENDED, THE PROVISIONS OF WHICH ARE PRACTICALLY IDENTICAL WITH THOSE OF PARAGRAPH 2F(1), SPECIAL REGULATIONS 35-3080-1) 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 (IMMEDIATELY AFTER THE TERM "NAVY ENLISTED PERSONNEL") 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. ***"

REFERENCE HAS BEEN MADE TO A POLICY OF HEADQUARTERS, TRIESTE UNITED STATES TROOPS, AGAINST OFFICERS EATING AT ENLISTED MESSES. SEE SECTION IV A, MEMORANDUM NO. 84, SEPTEMBER 8, 1950, AND PARAGRAPH 18(2), SECTION VI, MEMORANDUM NO. 116, NOVEMBER 16, 1950, HEADQUARTERS, TRIESTE UNITED STATES TROOPS. THIS OFFICE HAS NOT BEEN ADVISED AS TO THE REASONS FOR THE ESTABLISHMENT OF SUCH POLICY, BUT IT APPEARS PROBABLE THAT SUCH ACTION WAS INFLUENCED LARGELY BY THE FACT THAT DEPENDENTS OF OFFICERS WERE NOT PERMITTED TO UTILIZE ORGANIZATIONAL MESSES AND THAT OTHER SATISFACTORY FACILITIES WERE AVAILABLE AT WHICH OFFICERS AND THEIR DEPENDENTS COULD SECURE THEIR MEALS. CONCERNING THE QUESTION OF THE EXTENT TO WHICH A POLICY AGAINST OFFICERS EATING AT ENLISTED MESSES MAY AFFECT THEIR RIGHT TO STATION SUBSISTENCE PER DIEM, IT WAS STATED IN THE DECISION OF FEBRUARY 2, 1953:

"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."

UNDER THE CIRCUMSTANCES DISCLOSED, THE CONCLUSION APPEARS REQUIRED THAT A "GOVERNMENT MESS" WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM, WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE GOVERNING REGULATIONS AND THAT UNDER SUCH CIRCUMSTANCES, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JUNE 27, 1952, IS SUSTAINED.

WITH RESPECT TO YOUR STATEMENT THAT OTHER OFFICERS WHO WERE STATIONED WITH YOU AT TRIESTE DURING THE PERIOD OF YOUR CLAIM HAVE BEEN PAID RETROACTIVE STATION SUBSISTENCE PER DIEM ALLOWANCE, YOU ARE ADVISED THAT THIS OFFICE IS AWARE OF SUCH PAYMENTS. THEY ARE BEING EXAMINED AND IF FOUND TO BE ERRONEOUS, APPROPRIATE STEPS WILL BE INITIATED TO COLLECT THE AMOUNTS THEREOF. IF, AS ALLEGED, THE ALLOWANCE WAS PAID TO YOU FOR THE MONTH OF MARCH 1951, SUCH PAYMENT WAS ERRONEOUS AND AN EXCEPTION WILL BE STATED AGAINST SUCH PAYMENT BY THE DIVISION OF AUDITS OF THIS OFFICE.

CONCERNING THE STATION SUBSISTENCE PER DIEM ALLOWANCE STATED TO HAVE BEEN PAID TO YOU ON AND AFTER APRIL 1, 1951, YOU ARE ADVISED THAT THE RIGHT OF OFFICERS TO SUCH ALLOWANCE WAS CHANGED MATERIALLY BY THE REGULATIONS ISSUED UNDER SECTION 303(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AUTHORITY BEING CONTAINED THEREIN TO CONSIDER THE COST OF LIVING OF DEPENDENTS IN FIXING THE RATE OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES, A FACTOR NOT FOR CONSIDERATION UNDER PRIOR LEGISLATION. SEE PARAGRAPH 4301-5 OF THE JOINT TRAVEL REGULATIONS, EFFECTIVE APRIL 1, 1951.