B-124450, DEC. 13, 1955

B-124450: Dec 13, 1955

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A/1C: REFERENCE IS MADE TO YOUR LETTER DATED MAY 2. YOU WERE PLACED ON TEMPORARY DUTY WITH AACS OPERATING LOCATION AT MEDFORD MUNICIPAL AIRPORT. DISCLOSES THAT YOU WERE CREDITED WITH BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY FROM JULY 1 TO DECEMBER 31. YOU WERE CREDITED WITH THE DIFFERENCE BETWEEN $2.57 PER DAY AND $3.42 PER DAY FOR THE PERIOD DECEMBER 22. YOU WERE AUTHORIZED TO BE PAID BASIC ALLOWANCE FOR SUBSISTANCE UNDER EMERGENCY CONDITIONS FOR THE PERIOD JULY 1 THROUGH DECEMBER 21. WAS DISALLOWED BY SETTLEMENT DATED APRIL 1. PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE (1) AT A RATE OF $2.57 PER DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE.

B-124450, DEC. 13, 1955

TO MR. ARTHUR A. PETERSON, A/1C:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 2, 1955, CONCERNING YOUR CLAIM FOR INCREASED SUBSISTENCE ALLOWANCE FOR THE PERIOD JULY 1 TO DECEMBER 21, 1953, WHILE ON DUTY WITH AACS OPERATING LOCATION, MEDFORD MUNICIPAL AIRPORT, OREGON.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 50, DATED MARCH 20, 1953, AIRWAYS AND AIR COMMUNICATIONS SERVICE, 1905TH AACS SQUADRON, MCCHORD AIR FORCE BASE, WASHINGTON, YOU WERE PLACED ON TEMPORARY DUTY WITH AACS OPERATING LOCATION AT MEDFORD MUNICIPAL AIRPORT, OREGON, AND ORDERED TO PROCEED TO SUCH TEMPORARY DUTY STATION ON OR ABOUT MARCH 24, 1953. EXAMINATION OF A PHOTOSTATIC COPY OF YOUR PAY RECORD COVERING THE PERIOD JANUARY 1, 1953, THROUGH JUNE 30, 1954, DISCLOSES THAT YOU WERE CREDITED WITH BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY FROM JULY 1 TO DECEMBER 31, 1953. DURING THE PERIOD JANUARY 1 TO JUNE 30, 1954, YOU WERE CREDITED WITH THE DIFFERENCE BETWEEN $2.57 PER DAY AND $3.42 PER DAY FOR THE PERIOD DECEMBER 22, 1953, THROUGH JANUARY 31, 1954. BY PARAGRAPH 7, SPECIAL ORDERS NO. 122, DATED JULY 6, 1954, 1905TH AIRWAYS AND AIR COMMUNICATIONS SERVICE SQUADRON (MATS), MCCHORD AIR FORCE BASE, TACOMA, WASHINGTON, YOU WERE AUTHORIZED TO BE PAID BASIC ALLOWANCE FOR SUBSISTANCE UNDER EMERGENCY CONDITIONS FOR THE PERIOD JULY 1 THROUGH DECEMBER 21, 1953, WHILE STATIONED AT MEDFORD MUNICIPAL AIRPORT, OREGON. YOUR CLAIM FOR THE DIFFERENCE BETWEEN $2.57 PER DAY AND $3.42 PER DAY FOR THE PERIOD JULY 1 THROUGH DECEMBER 21, 1953, WAS DISALLOWED BY SETTLEMENT DATED APRIL 1, 1955, OF OUR CLAIMS DIVISION FOR THE REASON THAT THE ORDERS OF JULY 6, 1954, COULD NOT BE GIVEN RETROACTIVE EFFECT.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED BY SECTION 1 (D) OF THE ACT OF MAY 19, 1952, 66 STAT. 80, PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE (1) AT A RATE OF $2.57 PER DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE; (2) AT A RATE OF $1.05 PER DAY WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; OR (3) AT A RATE OF NOT TO EXCEED $3.42 PER DAY WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. SINCE THE RATES FOR APPLICATION UNDER CIRCUMSTANCES (1) AND (2) ARE CLEARLY SPECIFIED, IT APPEARS THAT THE CAREER COMPENSATION ACT, AS AMENDED, DOES NOT CONTEMPLATE AN ADMINISTRATIVE AUTHORIZATION AS NECESSARILY A CONDITION PRECEDENT TO THE PAYMENT OF THE ALLOWANCE AT THE RATES APPLICABLE TO THOSE CIRCUMSTANCES. HOWEVER, WITH RESPECT TO MEMBERS ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT FACILITIES ARE AVAILABLE, THE ACT AUTHORIZES PAYMENT OF SUCH ALLOWANCE AT A RATE OF NOT TO EXCEED THE SUM OF $3.42 PER DAY AFTER A DETERMINATION THAT EMERGENCY CONDITIONS EXIST AND THAT NO GOVERNMENT FACILITIES ARE AVAILABLE. THUS, IT IS INDICATED THAT ORDERS AUTHORIZING PAYMENT OF SUCH ALLOWANCE IN AN AMOUNT NOT TO EXCEED $3.42 PER DAY WOULD OPERATE PROSPECTIVELY AFTER A DETERMINATION AS TO THE EMERGENCY CONDITIONS EXISTING AT THE PLACE OF DUTY AND THE PRESCRIBING OF THE RATE TO BE PAID.

ACCORDINGLY, SINCE THE ORDERS OF JULY 6, 1954, WERE NOT ISSUED CONTEMPORANEOUSLY WITH THE PERIOD INVOLVED AND DID NOT PRESCRIBE A DEFINITE RATE OF SUBSISTENCE ALLOWANCE THEY MAY NOT BE VIEWED AS ESTABLISHING YOUR ENTITLEMENT TO THE DIFFERENCE BETWEEN $3.42 PER DAY AND $2.57 PER DAY FOR BASIC ALLOWANCE FOR SUBSISTENCE DURING THE PERIOD JULY 1 TO DECEMBER 21, 1953. THE SETTLEMENT OF APRIL 1, 1955, IS SUSTAINED.