B-127063, SEP. 20, 1956

B-127063, SEP. 20, 1956

TO MR. WALTER C. MILOSEVICH, ETC, UNITED STATES NAVY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 28, 1956, WITH ENCLOSURES, FORWARDED HERE BY THE DEPARTMENT OF THE NAVY CONCERNING YOUR CLAIM FOR COMMUTED RATIONS FOR THE PERIOD FEBRUARY 17, 1953, TO MAY 16, 1955, INCIDENT TO YOUR SERVICE AS CHIEF ELECTRONICS TECHNICIAN, UNITED STATES NAVY.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 20, 1956, OF OUR CLAIMS DIVISION FOR THE REASON THAT YOU FAILED TO SECURE ADVANCE OR CONTEMPERANEOUS APPROVAL, IN WRITING, BY YOUR COMMANDING OFFICER OF YOUR APPLICATION FOR SUCH RATION ALLOWANCE AS REQUIRED BY NAVY DEPARTMENT REGULATIONS. YOU WERE ALSO ADVISED THAT THE REQUEST OF MAY 16, 1955, BY YOUR COMMANDING OFFICER THAT YOU BE PAID SUCH AN ALLOWANCE FOR THE PERIOD INVOLVED MAY NOT BE GIVEN RETROACTIVE EFFECT. YOU URGE THAT YOUR CLAIM BE ALLOWED ON THE BASIS THAT WHEN YOU SUBMITTED A REQUEST FOR COMMUTED RATIONS ON FEBRUARY 16, 1953, YOU WERE REQUIRED TO SURRENDER YOUR GENERAL MESS PASS AND THAT YOUR REQUEST WAS NOT APPROVED DUE TO AN ADMINISTRATIVE ERROR.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE OF ONE OF THREE TYPES, TYPE (2) OF WHICH IS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 3 (C) OF EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301 STATES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS RANTED" SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH A-4404, CHANGE NO. 4, BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT AT THE TIME OF YOUR REQUEST FOR PAYMENT OF COMMUTED RATIONS, PROVIDED THAT THE COMMANDING OFFICER'S APPROVAL OF REQUESTS FOR COMMUTATION OF RATIONS WAS NOT TO BE MADE RETROACTIVELY, AND THAT PAYMENT OF COMMUTED RATIONS SHOULD COMMENCE ON THE DATE FOLLOWING THE DATE OF THE COMMANDING OFFICER'S APPROVAL. SINCE THERE IS NO SHOWING THAT YOU WERE GRANTED AUTHORITY PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM TO MESS SEPARATELY, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

RESPECTING YOUR CONTENTION THAT YOUR REQUEST WAS NOT APPROVED DUE TO ADMINISTRATIVE ERROR--- NEGLIGENCE OF YOUR COMMANDING OFFICER--- IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 14 ID. 221, 473, 855; 54 AM.JUR. 608; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES, 148 U.S. 573; BART V. UNITED STATES, 95 U.S. 316; COOKE V. UNITED STATES, 91 U.S. 389, 398.

ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1956, DISALLOWING YOUR CLAIM, WAS CORRECT AND IS SUSTAINED.