B-115682, JUL 14, 1953

B-115682: Jul 14, 1953

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USN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11. WHILE YOU WERE STATIONED AT THE U. I. YOU HAVE SUBMITTED ORDER NO. 7185-52 FROM THE COMMANDING OFFICER OF THE ABOVE-MENTIONED NAVAL STATION. ON THE BASIS THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR YOU AND YOUR DEPENDENTS. WHILE NOTHING IS STATED AS TO WHETHER GOVERNMENT QUARTERS WERE AVAILABLE TO YOU PERSONALLY. IT WILL BE ASSUMED THAT SUCH QUARTERS WERE SO AVAILABLE SINCE NO CERTIFICATION OF NON-AVAILABILITY FROM YOUR COMMANDING OFFICER HAS BEEN SUBMITTED AS REQUIRED BY PARAGRAPH 10(B)(2)(B). IS AS FOLLOWS: "20 OFFICERS AND ENLISTED MEMBERS WHO ARE RECEIVING THE BASIC ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF REFERENCE (A) SHALL BE ENTITLED.

B-115682, JUL 14, 1953

PRECIS-UNAVAILABLE

BARRY C. ABELLA, YNI, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1953, WITH ENCLOSURES, RELATIVE TO THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED AUGUST 25, 1952, WHICH DISALLOWED YOUR CLAIM FOR THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE DURING THE PERIOD FEBRUARY 18, 1950, TO MARCH 31, 1951, WHILE YOU WERE STATIONED AT THE U. S. NAVAL STATION, SANGLEY POINT, P. I.

YOU HAVE SUBMITTED ORDER NO. 7185-52 FROM THE COMMANDING OFFICER OF THE ABOVE-MENTIONED NAVAL STATION, WHICH PURPORTS TO AUTHORIZE PAYMENT OF THE ALLOWANCES CLAIMED UNDER AUTHORITY CONTAINED IN PART G, CHAPTER IV, AND APPENDIX B OF THE JOINT TRAVEL REGULATIONS, ON THE BASIS THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE FOR YOU AND YOUR DEPENDENTS. WHILE NOTHING IS STATED AS TO WHETHER GOVERNMENT QUARTERS WERE AVAILABLE TO YOU PERSONALLY, IT WILL BE ASSUMED THAT SUCH QUARTERS WERE SO AVAILABLE SINCE NO CERTIFICATION OF NON-AVAILABILITY FROM YOUR COMMANDING OFFICER HAS BEEN SUBMITTED AS REQUIRED BY PARAGRAPH 10(B)(2)(B), APPENDIX C, U. S. NAVY TRAVEL INSTRUCTIONS. THE CHIEF OF NAVAL PERSONNEL RECOMMENDED APPROVAL OF YOUR CLAIM UNDER DATE OF MAY 21, 1952, IN ACCORDANCE WITH AMENDMENT 23 TO SECNAV LETTER OF JULY 22, 1947, AS CONTAINED IN SECNAV LETTER OF MARCH 27, 1950, (SECNAV 50 241). PARAGRAPH 20 OF SAID LETTER OF JULY 22, 1947, AS ADDED BY AMENDMENT 22 AND AMENDED BY PARAGRAPH (F) OF SAID AMENDMENT 23, IS AS FOLLOWS:

"20 OFFICERS AND ENLISTED MEMBERS WHO ARE RECEIVING THE BASIC ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF REFERENCE (A) SHALL BE ENTITLED, IN ADDITION THERETO, TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS IN LIEU OF THE STATION ALLOWANCE PROVIDED FOR ENLISTED PERSONNEL, PROVIDED, IN THE CASE OF MEMBERS WITH DEPENDENTS, THAT SUCH DEPENDENTS DO IN FACT RESIDE IN THE VICINITY OF THE MEMBERS' PERMANENT STATION. MILITARY MEMBERS ARE ENTITLED TO THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE WHEN GOVERNMENT MEALS ARE NOT AVAILABLE IN THEIR OWN RIGHT, WITHOUT REGARD TO MARITAL STATUS."

PARAGRAPHS 12 AND 13 OF THE LETTER OF JULY 22, 1947 (PUBLISHED IN APPENDIX C OF THE NAVY TRAVEL INSTRUCTIONS) PROVIDE THAT AUTHORIZATIONS FOR THE PAYMENT OF STATION ALLOWANCES TO NAVAL PERSONNEL SHALL BE MADE EITHER BY THE CHIEF OF NAVAL PERSONNEL OR BY ORDER OF THE COMMANDING OFFICER OF THE ACTIVITY WHERE THE DUTY IS PERFORMED BEARING CERTIFICATION AS TO THE NON-AVAILABILITY OF GOVERNMENT MESS AND QUARTERS. SUCH REGULATIONS HAVE BEEN HELD TO CONTEMPLATE THE PAYMENT OF STATION PER DIEM ALLOWANCES ONLY WHERE SPECIFICALLY AUTHORIZED BY THE BUREAU OF NAVAL PERSONNEL IN ADVANCE OF THE PERIOD OF DUTY INVOLVED OR BY THE COMMANDING OFFICER OF THE ACTIVITY WHERE THE DUTY IS PERFORMED BASED ON HIS CONTEMPORANEOUS DETERMINATION THAT PAYMENT OF THE ALLOWANCES IS WARRANTED BY REASON OF THE CONDITIONS EXISTING AT THAT TIME. AMENDMENT 25 DID NOT CHANGE THE REQUIREMENT OF PARAGRAPHS 12 AND 13 IN ANY WAY. THE COMMANDING OFFICER'S ORDER SUBMITTED BY YOU DOES NOT BEAR A DATE AND SINCE IT REFERRED TO THE JOINT TRAVEL REGULATIONS WHICH BECAME EFFECTIVE APRIL 1, 1951, AND IS NUMBERED 7165 52, IT APPEARS CLEAR THAT IT WAS NOT ISSUED CONTEMPORANEOUSLY WITH THE PERIOD HERE INVOLVED. WHILE YOU STATE THAT THE CONTEMPORANEOUS APPROVAL BY YOUR COMMANDING OFFICER WAS NOT OBTAINED DUE TO MISINTERPRETATION OF APPLICABLE REGULATIONS, THE FACT REMAINS THAT THERE WAS NO COMPLIANCE WITH THE EXPRESS PROVISIONS OF THE REGULATIONS RELATING THERETO AND UNDER SUCH CIRCUMSTANCES NO RIGHT TO THE ALLOWANCE CLAIMED ACCRUED TO YOU.

WHILE PARAGRAPH 13(D) OF THE LETTER OF JULY 22, 1947, PROVIDES THAT WHERE PERSONNEL HAVE LEFT AN OVERSEAS STATION PRIOR TO RECEIPT OF APPLICABLE STATION PER DIEM ALLOWANCES, CLAIM THEREFOR MAY BE SUBMITTED TO THE CHIEF OF NAVAL PERSONNEL FOR APPROVAL FOR PAYMENT, SUCH PROVISIONS HAVE BEEN REGARDED AS BEING APPLICABLE ONLY TO THOSE SITUATIONS WHERE THE OTHER REQUIREMENTS OF PARAGRAPHS 12 AND 13 ARE NOT MET BECAUSE OF THE FACT THAT AN OFFICER OR ENLISTED MAN IS REQUIRED TO DEPART FROM THE FOREIGN STATION DURING THE NORMAL MONTHLY ACCRUAL PERIOD SET FORTH IN THE PROVISIONS OF SAID PARAGRAPHS 13(A) AND (B), OR BEFORE PAYMENT IS EFFECTED FOR THAT PERIOD IN THE NORMAL COURSE OF EVENTS. HENCE, THE ACTION TAKEN BY THE CHIEF OF NAVAL PERSONNEL ON MAY 21, 1952, FURNISHES NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

WITH RESPECT TO THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE, CLAIM FOR WHICH WAS FIRST ASSERTED IN YOUR LETTER OF MAY 11, 1953, YOUR ATTENTION IS INVITED TO THE FACT THAT THE ABOVE-QUOTED REGULATIONS PERMIT PAYMENT OF SUCH ALLOWANCE ON THE BASIS OF AVAILABILITY OF GOVERNMENT MEALS TO THE PERSONS CONCERNED IN HIS OWN RIGHT, WITHOUT REGARD TO HIS MARITAL STATUS OR THE AVAILABILITY OF SUCH MEALS FOR HIS DEPENDENTS. WHILE YOU NOW STATE THAT A GOVERNMENT MESS WAS NOT AVAILABLE, IT IS ASSUMED THAT YOU REFER TO A MESS AVAILABLE TO BOTH YOU AND YOUR DEPENDENTS, SINCE YOU STATED IN ENCLOSURE (C) TO YOUR ORIGINAL CLAIM THAT "A GOVERNMENT MESS WAS AVAILABLE FOR ANY MEAL." THE FACT THAT YOU WERE CREDITED WITH COMMUTED RATIONS DURING THE PERIOD OF YOUR CLAIM, INDICATES THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU PERSONALLY.

AS TO THE STATEMENT THAT YOU WERE PAID THE STATION PER DIEM ALLOWANCE ON AND AFTER APRIL 1, 1951, YOU ARE ADVISED THAT YOUR RIGHT TO SUCH ALLOWANCE WAS CHANGED MATERIALLY BY THE JOINT TRAVEL REGULATIONS WHICH BECAME EFFECTIVE ON THAT DATE. SEE PARAGRAPHS 4501-4 AND 5 THEREOF. UNDER SUCH REGULATIONS A GOVERNMENT MESS WAS NOT REGARDED AS BEING AVAILABLE TO A MEMBER WITH DEPENDENTS WHO RESIDED IN THE VICINITY OF HIS STATION AND GOVERNMENT QUARTERS WERE NOT AVAILABLE UNLESS SUCH QUARTERS WERE OCCUPIED BY THE MEMBER AND HIS DEPENDENTS.

IT APPEARING THAT PAYMENT OF THE ALLOWANCE IN QUESTION WAS NOT AUTHORIZED IN THE MANNER CONTEMPLATED BY APPLICABLE REGULATIONS, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF AUGUST 25, 1952, IS SUSTAINED.