B-123769, JUL. 18, 1955

B-123769: Jul 18, 1955

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 15. IT IS STATED THAT DOUBT AS TO WHETHER PAYMENT MAY BE MADE RETROACTIVELY TO NOVEMBER 3. IT IS STATED FURTHER THAT UPON INQUIRY AS TO CAUSE OF DELAY IN ISSUANCE OF ORDERS. INFORMATION WAS FURNISHED INFORMALLY THAT CLAIMANT HAD MADE APPLICATION FOR AUTHORITY TO RATION SEPARATELY AND THAT APPROVAL HAD BEEN GIVEN ON NOVEMBER 3. EACH MEMBER OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATES AND IN THE CIRCUMSTANCES THERE PROVIDED WHEN RATIONS IN KIND ARE NOT AVAILABLE. WHEN PERMISSION TO MESS SEPARATELY IS GRANTED. OR WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE.

B-123769, JUL. 18, 1955

TO LIEUTENANT COLONEL T. ELLERBE, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1955, FORWARDED BY SECOND INDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REQUESTING DECISION AS TO WHETHER PAYMENT MAY PROPERLY BE MADE ON THE BASIS OF A SUBMITTED MILITARY PAY ORDER STATED IN FAVOR OF SERGEANT FIRST CLASS FRANK A. MOUNTFORD FOR SEPARATE RATIONS FROM NOVEMBER 3, 1954, PURSUANT TO SPECIAL ORDERS NO. 27, HEADQUARTERS, HEADQUARTERS TROOPS, FORT EUSTIS, VIRGINIA, DATED FEBRUARY 25, 1955. IT IS STATED THAT DOUBT AS TO WHETHER PAYMENT MAY BE MADE RETROACTIVELY TO NOVEMBER 3, 1954, ARISES BECAUSE OF THE EXTREMELY LONG PERIOD BETWEEN THE PURPORTED VERBAL ORDERS AND THE ISSUANCE OF WRITTEN ORDERS, A LAPSE OF SOME 3 MONTHS AND 23 DAYS. IT IS STATED FURTHER THAT UPON INQUIRY AS TO CAUSE OF DELAY IN ISSUANCE OF ORDERS, INFORMATION WAS FURNISHED INFORMALLY THAT CLAIMANT HAD MADE APPLICATION FOR AUTHORITY TO RATION SEPARATELY AND THAT APPROVAL HAD BEEN GIVEN ON NOVEMBER 3, 1954, BUT THAT NO DOCUMENTARY EVIDENCE CAN BE PRODUCED TO SUBSTANTIATE THE STATEMENT.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, EACH MEMBER OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATES AND IN THE CIRCUMSTANCES THERE PROVIDED WHEN RATIONS IN KIND ARE NOT AVAILABLE, WHEN PERMISSION TO MESS SEPARATELY IS GRANTED, OR WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. THAT SECTION FURTHER PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE SECTION. SUCH REGULATIONS, PROMULGATED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, PROVIDE, AMONG OTHER THINGS, THAT THE TERM,"WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH 13, SPECIAL REGULATIONS NO. 35 1465-5, PROVIDES THAT AUTHORIZATION FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE IS REQUIRED BEFORE SUCH PAYMENT MAY BE MADE; THAT SUCH AUTHORIZATION WILL BE ISSUED CONTEMPORANEOUSLY AFTER DETERMINATION IS MADE THAT RATIONS IN KIND ARE NOT AVAILABLE OR THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT; AND THAT THE DETERMINATION OF THE COMMANDING OFFICER IS CONCLUSIVE OF THE RIGHTS OF THE PERSON.

THESE REGULATIONS ARE CONSISTENT WITH THE VIEW TAKEN OF PRIOR LEGISLATION UNDER WHICH IT WAS HELD THAT MONETARY ALLOWANCE FOR SUBSISTENCE WAS DEPENDENT ON AN AUTHORIZATION BY THE DEPARTMENT CONCERNED, ISSUED CONTEMPORANEOUSLY (8 COMP. GEN. 82). HOWEVER, UNDER THE CAREER COMPENSATION ACT OF 1949 AND THE EXECUTIVE REGULATIONS, A MONETARY ALLOWANCE FOR SUBSISTENCE IS AUTHORIZED IF PERMISSION TO MESS SEPARATELY IS GRANTED. WHILE A CONTEMPORANEOUS AUTHORIZATION WOULD USUALLY BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT A PREREQUISITE TO PAYMENT WHERE THE FACTS ARE OTHERWISE SUFFICIENTLY AND SATISFACTORILY ESTABLISHED.

ON THE BASIS OF THE FACTS SHOWN, TOGETHER WITH THE ORDERS OF FEBRUARY 25, 1955, APPARENTLY ISSUED FOR THE PURPOSE OF CLARIFYING THE RECORD AND CONFIRMING VERBAL PERMISSION GRANTED ON NOVEMBER 3, 1954, IT IS CONCLUDED THAT SERGEANT MOUNTFORD WAS AUTHORIZED TO RATION SEPARATELY EFFECTIVE NOVEMBER 3, 1954. ACCORDINGLY, PAYMENT ON MILITARY PAY ORDER NO. 316, MARCH 3, 1955, RETURNED HEREWITH, IS AUTHORIZED TO BE MADE FOR THE PERIOD BEGINNING NOVEMBER 3, 1954.