B-123707, JUN. 23, 1960

B-123707: Jun 23, 1960

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BAILEY: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 17. REGULATIONS IN FORCE DURING THE PERIOD IN QUESTION DID NOT PERMIT THE PAYMENT OF STATION PER DIEM ALLOWANCES WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. A GOVERNMENT MESS FOR OFFICERS IS DEFINED AS INCLUDING NOT ONLY OFFICERS' MESSES BUT ALSO "ANY ORGANIZATIONAL MESS OPERATED FOR * * * ENLISTED PERSONNEL.'. COMMANDING OFFICERS AT OVERSEAS STATIONS WERE CHARGED WITH A STRICT RESPONSIBILITY OF PROVIDING GOVERNMENT QUARTERS AND MESSES WHEREVER FEASIBLE. IT SEEMS CLEAR THAT DURING THE PERIOD HERE INVOLVED GOVERNMENT MESSES WERE AVAILABLE AT ALL TIMES FOR ALL OFFICERS AND ENLISTED MEN ON DUTY AT TRIESTE. THAT UNDER THE DOCTRINE OF RES JUDICATA THE GOVERNMENT'S CLAIM AGAINST YOU IS BARRED BECAUSE NO COUNTERCLAIM WAS FILED AGAINST YOU AS A PARTY PLAINTIFF IN THE CASE OF ROY W.

B-123707, JUN. 23, 1960

TO MR. LIONEL H. BAILEY:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 17, 1960, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $75 ON ACCOUNT OF ERRONEOUS CREDIT OF STATION SUBSISTENCE PER DIEM ALLOWANCE FOR THE PERIODS MARCH 1 THROUGH 22 AND 29 THROUGH 31, 1951, INCIDENT TO YOUR SERVICE AS AN OFFICER, AUS, IN THE FREE TERRITORY OF TRIESTE.

REGULATIONS IN FORCE DURING THE PERIOD IN QUESTION DID NOT PERMIT THE PAYMENT OF STATION PER DIEM ALLOWANCES WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE. A GOVERNMENT MESS FOR OFFICERS IS DEFINED AS INCLUDING NOT ONLY OFFICERS' MESSES BUT ALSO "ANY ORGANIZATIONAL MESS OPERATED FOR * * * ENLISTED PERSONNEL.' COMMANDING OFFICERS AT OVERSEAS STATIONS WERE CHARGED WITH A STRICT RESPONSIBILITY OF PROVIDING GOVERNMENT QUARTERS AND MESSES WHEREVER FEASIBLE. IT SEEMS CLEAR THAT DURING THE PERIOD HERE INVOLVED GOVERNMENT MESSES WERE AVAILABLE AT ALL TIMES FOR ALL OFFICERS AND ENLISTED MEN ON DUTY AT TRIESTE. YOU URGE, HOWEVER, THAT UNDER THE DOCTRINE OF RES JUDICATA THE GOVERNMENT'S CLAIM AGAINST YOU IS BARRED BECAUSE NO COUNTERCLAIM WAS FILED AGAINST YOU AS A PARTY PLAINTIFF IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES, C.CLS. NO. 56-53, AND THE "JUDGMENT" WHICH WAS ENTERED IN THAT CASE SETTLED ALL CLAIMS AS TO TRIESTE STATION ALLOWANCES.

THE ORDER ISSUED OCTOBER 9, 1957, DISPOSING OF THE AXUP CASE WAS BASED ON A STIPULATION OF THE PARTIES IN WHICH IT WAS STATED THAT AN OFFER WAS SUBMITTED BY THE PLAINTIFFS AND ACCEPTED ON BEHALF OF THE DEFENDANT WHEREBY THE PLAINTIFFS AGREED TO WITHDRAW ALL CLAIMS FOR PER DIEM SUBSISTENCE ALLOWANCES IF DEFENDANT WOULD AGREE TO PAY ALL UNPAID PER DIEM QUARTERS ALLOWANCES IN RESPECT TO THOSE PLAINTIFFS WHO BETWEEN SEPTEMBER 15, 1947, AND MARCH 31, 1951, (A) WERE IN TRIESTE (B) HAD DEPENDENTS IN TRIESTE AND (C) WERE NOT FORMALLY ASSIGNED GOVERNMENT-OWNED QUARTERS IN TRIESTE. ALSO THE PARTIES STIPULATED THAT JUDGMENT BE ENTERED FOR THE PLAINTIFFS NAMED AND IN THE AMOUNTS SHOWN, IN FULL SETTLEMENT AND SATISFACTION OF ALL (PER DIEM QUARTERS ALLOWANCES) CLAIMS ASSERTED IN THE PETITION. IT WAS FURTHER STIPULATED THAT THE CLAIMS OF CERTAIN PLAINTIFFS, INCLUDING YOURS, BE DISMISSED AND THESE CLAIMS WERE DISMISSED WITH PREJUDICE.

REASONABLY, THE CONCLUSION TO BE DRAWN FROM THE DISMISSAL WITH PREJUDICE OF YOUR CLAIM FOR PER DIEM SUBSISTENCE ALLOWANCE, IF ANY IS TO BE DRAWN, IS THAT YOU ARE NOT ENTITLED TO SUCH ALLOWANCE. IF, THEREFORE, THE DOCTRINE OF RES JUDICATA IS FOR APPLICATION IN YOUR CASE, IT AFFORDS NO SUPPORT FOR A CONCLUSION THAT YOU ARE ENTITLED TO THE SUBSISTENCE PAYMENT FOR WHICH AN EXCEPTION WAS TAKEN. HOWEVER, NO JUDGMENT ON THE QUESTION OF PER DIEM SUBSISTENCE ALLOWANCES WAS ENTERED IN FAVOR OF ANY OF THE PLAINTIFFS IN THE AXUP CASE. THE ORDER OF THE COURT WAS BASED ON THE STIPULATION OF THE PARTIES RATHER THAN ON A JUDGMENT ON THE MERITS. HENCE, IN OUR VIEW, THE CLAIM OF THE GOVERNMENT AGAINST YOU FOR THE SUBSISTENCE PAYMENT IS NOT SUBJECT TO THE DOCTRINE OF RES JUDICATA.

ACCORDINGLY, YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $75. YOU ARE REQUESTED TO REFUND THAT AMOUNT BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE.' THE REMITTANCE SHOULD BE ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, ..END :