B-119551, JUL 26, 1954

B-119551: Jul 26, 1954

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USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. WHILE YOU WERE ON DUTY IN THE FREE TERRITORY OF TRIESTE. YOUR CLAIM IS NOT PAYABLE IF A "GOVERNMENT MESS" WAS "AVAILABLE" TO YOU WITHIN THE MEANING OF WAR DEPARTMENT CIRCULAR NO. 196-47. YOU ADMIT THAT YOU COULD HAVE SECURED YOUR MEALS AT A "FIELD MESS OPERATED IN THE DEPOT BOQ. " BUT YOU APPEAR TO BASE YOUR CLAIM UPON THE PROPOSITION THAT SUCH GOVERNMENT MESS WAS NOT AVAILABLE TO YOU BECAUSE YOU DID NOT ALWAYS LIVE WITHIN WALKING DISTANCE FROM SUCH MESS. THAT YOUR LIVING QUARTERS WERE LOCATED "APPROXIMATELY 2 TO 3 MILES" FROM THE MESS DURING THE REMAINDER OF YOUR STAY IN TRIESTE. ALL SIMILAR CLAIMS OF OFFICERS ON DUTY IN TRIESTE DURING THE PERIOD OF YOUR CLAIM WHICH HAVE BEEN SUBMITTED TO THIS OFFICE HAVE BEEN DISALLOWED AND.

B-119551, JUL 26, 1954

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL CHARLES W. KAY, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1954, REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 7, 1953, WHICH DISALLOWED YOUR CLAIM FOR STATION SUBSISTENCE PER DIEM DURING THE PERIOD JULY 1, 1947, TO AUGUST 19, 1949, WHILE YOU WERE ON DUTY IN THE FREE TERRITORY OF TRIESTE.

YOUR CLAIM IS NOT PAYABLE IF A "GOVERNMENT MESS" WAS "AVAILABLE" TO YOU WITHIN THE MEANING OF WAR DEPARTMENT CIRCULAR NO. 196-47, AS AMENDED. YOU ADMIT THAT YOU COULD HAVE SECURED YOUR MEALS AT A "FIELD MESS OPERATED IN THE DEPOT BOQ," BUT YOU APPEAR TO BASE YOUR CLAIM UPON THE PROPOSITION THAT SUCH GOVERNMENT MESS WAS NOT AVAILABLE TO YOU BECAUSE YOU DID NOT ALWAYS LIVE WITHIN WALKING DISTANCE FROM SUCH MESS. YOU STATE THAT YOU AND YOUR DEPENDENTS OCCUPIED QUARTERS IN THE CENTRAL HOTEL, LOCATED "FROM ONE TO TWO MILES" FROM SUCH FIELD MESS, FROM JULY TO APPROXIMATELY OCTOBER 1947; THAT YOU LIVED NEAR SUCH MESS FROM OCTOBER 1947 TO ABOUT JUNE 1948; AND THAT YOUR LIVING QUARTERS WERE LOCATED "APPROXIMATELY 2 TO 3 MILES" FROM THE MESS DURING THE REMAINDER OF YOUR STAY IN TRIESTE.

THE FACT THAT AN OFFICER DOES NOT SECURE QUARTERS IN THE IMMEDIATE VICINITY OF A GOVERNMENT MESS OTHERWISE AVAILABLE TO HIM DOES NOT, ALONE, MAKE SUCH MESS UNAVAILABLE TO HIM. THIS OFFICE MAY NOT CONCLUDE AS A MATTER OF LAW THAT OCCUPANCY OF THE QUARTERS UTILIZED BY YOU MADE SUCH MESS UNAVAILABLE TO YOU WITHIN THE MEANING OF THE GOVERNING REGULATIONS.

FOR YOUR INFORMATION, ALL SIMILAR CLAIMS OF OFFICERS ON DUTY IN TRIESTE DURING THE PERIOD OF YOUR CLAIM WHICH HAVE BEEN SUBMITTED TO THIS OFFICE HAVE BEEN DISALLOWED AND, IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS, EXCEPTIONS HAVE BEEN ISSUED AGAINST ADMINISTRATIVE PAYMENTS OF SUCH STATION SUBSISTENCE PER DIEM ALLOWANCES FOR DUTY IN TRIESTE DURING THAT PERIOD. SEE IN THIS CONNECTION DECISION OF MARCH 17, 1953, B-111431, COPY ENCLOSED. ALSO, IT MAY BE STATED THAT THE QUESTION OF WHETHER OR NOT PAYMENT OF STATION PER DIEM IS AUTHORIZED FOR CERTAIN DUTY IN TRIESTE IS NOW BEFORE THE UNITED STATES COURT OF CLAIMS, ROY W. AXUP, ET AL. V. THE UNITED STATES, C. CLS. NO. 56-53.

THE SETTLEMENT OF DECEMBER 7, 1953, IS SUSTAINED.