B-117059, DECEMBER 30, 1953, 33 COMP. GEN. 283

B-117059, DECEMBER 30, 1953, 33 COMP. GEN. 283

PER DIEM STATION ALLOWANCE - MILITARY, NAVAL, ETC., PERSONNEL PERFORMING DUTY OUTSIDE CONTINENTAL UNITED STATES - CERTIFICATE OF NON AVAILABILITY OF GOVERNMENT MESS SECTION 203 OF THE ACT OF AUGUST 2, 1946, WHICH PERMITTED HEADS OF THE MILITARY DEPARTMENTS TO PRESCRIBE OVERSEAS STATION SUBSISTENCE ALLOWANCES, DID NOT CONTEMPLATE THE PROMULGATION OF REGULATIONS CONCERNING THE ACCEPTANCE OF OFFICERS CERTIFICATES AS TO THE AVAILABILITY OF GOVERNMENT MESS AND THEREFORE, WAR DEPARTMENT CIRCULAR NO. 196-47 (5C), WHICH PROVIDES THAT AN OFFICER'S CERTIFICATE SHALL BE CONSIDERED AS FINAL WITH RESPECT TO THE QUESTION OF AVAILABILITY OF GOVERNMENT MESS AND QUARTERS, MAY NOT BE CONSIDERED SUFFICIENT BASIS FOR ACCEPTANCE OF AN OFFICER'S CERTIFICATE RELATIVE TO AVAILABILITY OF GOVERNMENT MESS AND QUARTERS. UNDER THE ACT OF OCTOBER 26, 1942, OFFICERS' CERTIFICATES IN SUPPORT OF PAYMENTS ATTESTING TO THE EXISTENCE OF CERTAIN FACTS RELATING TO PAY AND ALLOWANCE MATTERS MAY BE ACCEPTED ONLY IF AUTHORIZED BY THE SECRETARIES OF WAR AND THE NAVY, AND THEREFORE OFFICERS' CERTIFICATES ATTESTING TO AVAILABILITY OF GOVERNMENT QUARTERS AND MESS ARE NOT ACCEPTABLE IN SUPPORT OF PAYMENT IN ABSENCE OF SPECIFIC AUTHORITY BY THE SECRETARY OF THE DEPARTMENT CONCERNED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL A. H. MITCHELL, DECEMBER 30, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1953, REQUESTING REVIEW OF THE AUDIT ACTION TAKEN IN ISSUING NOTICE OF EXCEPTION AGAINST PAYMENT OF STATION SUBSISTENCE PER DIEM ON VOUCHER NO. 2583, FEBRUARY 1948 ACCOUNTS OF COLONEL GEORGE VAN STUDDIFORD, TO MAJOR CLIFFORD M. HATHAWAY, ORDNANCE, IN THE AMOUNT OF $461.25 FOR THE PERIOD JULY 1 TO OCTOBER 31, 1947, WHILE HE WAS STATIONED AT HEADQUARTERS, AMERICAN GRAVES REGISTRATION COMMAND, PARIS, FRANCE. YOU STATE THAT YOUR OFFICE IS NOW ACTING IN THE CAPACITY OF CUSTODIAN OF THE ACCOUNTS OF COLONEL VAN STUDDIFORD.

IT APPEARS THAT PAYMENT WAS MADE ON THE BASIS OF A CERTIFICATION BY THE PAYEE STATING THAT A GOVERNMENT MESS WAS NOT AVAILABLE TO HIM DURING THE PERIOD INVOLVED. APPARENTLY YOU REGARD THE PROVISIONS OF PARAGRAPH 5C, WAR DEPARTMENT CIRCULAR NO. 196-47, AS A SUFFICIENT BASIS FOR ACCEPTANCE OF THE SAID CERTIFICATE TO SUPPORT THE PAYMENT MADE. SAID PARAGRAPH IS AS FOLLOWS: " AN OFFICER'S CERTIFICATE SHALL BE CONSIDERED AS FINAL WITH RESPECT TO THE QUESTION OF THE AVAILABILITY OF GOVERNMENT QUARTERS AND OF GOVERNMENT MESS.'

THE SAID CIRCULAR NO. 196 APPARENTLY WAS ISSUED UNDER AUTHORITY CONTAINED IN SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, WHICH PERMITTED THE PRESCRIBING OF PER DIEM ALLOWANCES FOR DUTY IN FOREIGN COUNTRIES. HOWEVER, THAT STATUTORY PROVISION DOES NOT INCLUDE AUTHORITY WHICH COULD BE CONSTRUED AS AUTHORIZING THE PROMULGATION OF REGULATIONS CONCERNING THE ACCEPTANCE OF CERTIFICATES SUCH AS ARE CONTAINED IN SAID PARAGRAPH 5C. THE TEMPORARY PROVISIONS OF THE ACT OF OCTOBER 26, 1942, 56 STAT. 987, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDED THAT CERTIFICATES OF MILITARY OFFICERS ATTESTING TO THE EXISTENCE OF CERTAIN FACTS RELATING TO MATTERS INVOLVING PAY AND ALLOWANCES "SHALL BE ACCEPTED AS SUPPORTING SUCH PAYMENTS SO FAR AS SAID FACTS ARE CONCERNED WITHOUT THE NECESSITY OF ANY OTHER SUPPORTING EVIDENCE OR CERTIFICATES," AND THE SECRETARIES OF WAR AND THE NAVY WERE GIVEN AUTHORITY TO PRESCRIBE THE PLACES WHERE AND THE CLASSES OF PAY AND ALLOWANCE ACCOUNTS TO WHICH SUCH CERTIFICATES WOULD APPLY. THE CIRCUMSTANCES UNDER WHICH THE ABOVE-MENTIONED CERTIFICATES MAY BE USED, ARE STATED IN PARAGRAPH 9B2, ARMY REGULATIONS 35-1360, JANUARY 31, 1947. NO MENTION IS MADE THEREIN OF A CERTIFICATION AS TO THE EXISTENCE OF A GOVERNMENT MESS IN CONNECTION WITH A CLAIM FOR STATION PER DIEM FOR DUTY IN A FOREIGN COUNTRY. UNDER SUCH CIRCUMSTANCES, THE PAYEE'S CERTIFICATE TO THE EFFECT THAT A GOVERNMENT MESS WAS NOT AVAILABLE, FURNISHES NO BASIS FOR REMOVING THE AUDIT EXCEPTION TO THE PAYMENT MADE ON SAID VOUCHER NO. 2583, IF A GOVERNMENT MESS WAS AVAILABLE WITHIN THE MEANING OF THE GOVERNING REGULATIONS.

INFORMATION RECEIVED IN OTHER CASES INVOLVING PERSONNEL ON DUTY WITH THE AMERICAN GRAVES REGISTRATION COMMAND IN PARIS SHOWS THE EXISTENCE OF A "CONSOLIDATED MESS TO BE USED BY THE DEPARTMENT OF THE ARMY CIVILIANS, ENLISTED MEN, OFFICERS AND DEPENDENTS.' IT APPEARS THAT BRIGADIER GENERAL H. L. PECKHAM, THE COMMANDING OFFICER THEREAT, ISSUED A STATEMENT ON NOVEMBER 19, 1947, DECLARING SUCH MESS INADEQUATE AND UNAVAILABLE TO OFFICER PERSONNEL EXCEPT WHILE ON DUTY WITH TROOPS AND STATING THAT SUCH CONDITION EXISTED PRIOR TO APRIL 15, 1947. WHILE IT MAY BE THAT SUCH MESS WAS CROWDED, IT MAY NOT BE CONCLUDED AS A MATTER OF LAW THAT SUCH CONDITION RENDERED THE MESS UNAVAILABLE TO ALL OFFICER PERSONNEL PRIOR TO NOVEMBER 19, 1947, WITHIN THE MEANING OF THE REGULATIONS DEFINING A GOVERNMENT MESS. SEE PARAGRAPH 2F (1) OF SAID CIRCULAR NO. 196. ALSO, IN A LETTER TO MAJOR GENERAL E. M. FOSTER, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 26, 1950, GENERAL PECKHAM STATED THAT AN OFFICERS' MESS WAS OPERATED IN THE CELTIC HOTEL IN PARIS. SEE 31 COMP. GEN. 399.

IN VIEW OF THE FOREGOING THE PRESENT RECORD FURNISHES NO PROPER BASIS FOR PASSING TO CREDIT THE PAYMENT MADE ON SAID VOUCHER NO. 2583.