B-130720, APR. 26, 1957

B-130720, APR. 26, 1957

TO STAFF SERGEANT REGINALD E. HOLDEN, USAF:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 12, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT COLLECTED FROM YOU BY REASON OF AN OVERPAYMENT OF STATION PER DIEM ALLOWANCE DURING THE PERIOD APRIL 17, TO MAY 31, 1953, WHILE YOU WERE STATIONED OVERSEAS.

BY PARAGRAPH 13, SPECIAL ORDERS NO. 47, DATED NOVEMBER 17, 1953, YOUR OVERSEAS COMMANDER CONFIRMED VERBAL ORDERS OF APRIL 17, 1953, STATING THAT, IT HAVING BEEN DETERMINED THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE, YOU WERE AUTHORIZED A STATION PER DIEM ALLOWANCE. THE ALLOWANCE WAS PAID FOR THE PERIOD INDICATED ABOVE BASED ON THOSE VERBAL ORDERS. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, HOWEVER, IT WAS DETERMINED THAT MESSING FACILITIES IN FACT WERE AVAILABLE AND THAT YOU HAD BEEN OVERPAID. PARAGRAPH 4303, JOINT TRAVEL REGULATIONS, WAS CITED IN THE NOTICE OF EXCEPTION. IN YOUR REQUEST FOR REVIEW YOU STATE THAT ALTHOUGH THERE WERE GOVERNMENT MESSING FACILITIES ON BASE, THEY WERE NOT AVAILABLE TO YOU IN VIEW OF THE ORDERS AUTHORIZING STATION PER DIEM ALLOWANCE. ALSO, YOU EXPRESS THE OPINION THAT OUR DECISION OF FEBRUARY 19, 1952, 31 COMP. GEN. 399, SHOULD BE MODIFIED TO PERMIT PAYMENT OF STATION PER DIEM ALLOWANCE WITHOUT DEDUCTION IN CASES SUCH AS YOURS.

PARAGRAPH 4303-2, JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES THAT UPON INITIAL ASSIGNMENT TO AN OVERSEAS AREA AND UPON SUBSEQUENT TRANSFER FROM ONE FOREIGN DUTY STATION TO ANOTHER REQUIRING A CHANGE IN RESIDENCE, A MEMBER WHO IS NOT FURNISHED GOVERNMENT QUARTERS AND WHO IS REQUIRED TO SECURE TEMPORARY LODGINGS FOR HIMSELF OR FOR HIMSELF AND DEPENDENT FOR ANY PERIOD DURING THE FIRST 45 DAYS AFTER ARRIVAL THEREAT SHALL BE ENTITLED TO A STATION PER DIEM ALLOWANCE PRESCRIBED FOR THAT AREA, SUBJECT TO THE DEDUCTIONS PRESCRIBED IN PARAGRAPH 4254 WHEN GOVERNMENT MESS IS AVAILABLE. THE LATTER PARAGRAPH PROVIDES FOR A REDUCTION OF 15 PERCENT IN THE PER DIEM ALLOWANCE RATE FOR EACH MEAL FOR WHICH GOVERNMENT MESS WAS AVAILABLE. IN OTHER WORDS, WHERE A STATION PER DIEM ALLOWANCE IS AUTHORIZED AND A GOVERNMENT MESS IS AVAILABLE, WHETHER UTILIZED OR NOT, THE REGULATIONS ARE MANDATORY IN REQUIRING A DEDUCTION IN THE AMOUNT PAID AS A STATION PER DIEM ALLOWANCE. IN THE DECISION OF FEBRUARY 19, 1953, IT WAS HELD THAT A COMMANDING OFFICER MAY NOT, BY DENYING OR PURPORTING TO DENY PERSONNEL PERMISSION TO EAT MEALS AT AN OTHERWISE AVAILABLE GOVERNMENT MESS, CONFER A LEGAL RIGHT TO THE STATION PER DIEM ALLOWANCE. WHILE THAT DECISION WAS BASED ON PRIOR SIMILAR REGULATIONS, IT IS EQUALLY APPLICABLE TO YOUR CASE. SINCE, BY YOUR OWN ADMISSION, THERE WAS A GOVERNMENT MESS AT YOUR STATION, THE COMMANDING OFFICER'S ORDERS (WHETHER VERBAL OR OTHERWISE) DO NOT CONSTITUTE A LEGAL BASIS FOR PAYMENT OF A STATION PER DIEM ALLOWANCE WITHOUT DEDUCTION, CONTRARY TO CONTROLLING REGULATIONS.

THE RECORD SHOWS THAT YOU RECEIVED $1.20 PER DAY AS BASIC ALLOWANCE FOR SUBSISTENCE DURING THE 45-DAY PERIOD COVERED BY YOUR CLAIM. UNDER SECTION 301/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, SUCH ALLOWANCE IS PAYABLE WHEN GOVERNMENT MESS IS AVAILABLE, BUT WHEN THE MEMBER IS GRANTED PERMISSION TO MESS SEPARATELY.' SINCE THE GRANTING OF SUCH "PERMISSION, PRESUPPOSES A REQUEST BY THE MEMBER THAT HE BE PERMITTED TO MESS SEPARATELY, THERE ARISES A STRONG PRESUMPTION THAT YOU REQUESTED AND WERE GRANTED PERMISSION TO EAT YOUR MEALS AWAY FROM YOUR STATION. HENCE, INSOFAR AS PAYMENT OF STATION PER DIEM IS CONCERNED YOU WERE IN THE SAME POSITION AS ANY OTHER MEMBER WHO CHOOSES NOT TO UTILIZE AN AVAILABLE MESS.

PARAGRAPH 4303-2, JOINT TRAVEL REGULATIONS, REQUIRES THE AMOUNT PAID AS BASIC ALLOWANCE FOR SUBSISTENCE BE DEDUCTED FROM THE STATION ALLOWANCE PER DIEM. YOU WERE PAID THE PER DIEM ALLOWANCE ON THAT BASIS, $10.80 PER DAY ($12 LESS $1.20). IN COMPUTING THE AMOUNT OF YOUR INDEBTEDNESS, THE TOTAL PER DIEM ALLOWANCE OF $12 AS REDUCED BY 45 PERCENT (15 PERCENT FOR EACH MEAL) RESULTING IN A PROPER PER DIEM CREDIT OF $6.60. SUCH CREDIT, HOWEVER, ERRONEOUSLY WAS DEDUCTED FROM THE $10.80 RATE, RESULTING IN A STATED OVERPAYMENT OF $4.20 PER DAY OR $189 FOR 45 DAYS. SINCE IT IS CLEAR THAT UNDER THE PROVISIONS OF PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS ANY STATION PER DIEM MUST BE REDUCED BY THE AMOUNT OF ANY BASIC ALLOWANCE FOR SUBSISTENCE RECEIVED, YOU WERE ACTUALLY OVERPAID $5.40 PER DAY ($10.80 PLUS $1.20 LESS $6.60) OR A TOTAL OF $243. THEREFORE, YOU ARE INDEBTED TO THE UNITED STATES IN THE ADDITIONAL SUM OF $54.

IT SHOULD BE NOTED THAT PAYMENT OF THE STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE IS AUTHORIZED WHEN MEMBERS ARE TRANSFERRED TO DUTY AT, OR BETWEEN, OVERSEAS STATIONS AND ARE REQUIRED TO OBTAIN TEMPORARY LODGING FOR THEMSELVES AND THEIR DEPENDENTS, FOR ALL OR PART OF THE FIRST 45 DAYS AFTER ARRIVAL OF THE MEMBER AT HIS STATION. A RIGHT TO THE ALLOWANCE IS CONTINGENT ON THE MEMBER'S INABILITY TO OBTAIN PERMANENT HOUSING WHICH, IN GENERAL, CONTEMPLATES SUITABLE QUARTERS INCLUDING COOKING FACILITIES. IS AN ALLOWANCE FOR THE PERIOD, NOT TO EXCEED 45 DAYS, DURING WHICH TEMPORARY HOUSING IS REQUIRED. AS SOON AS THE MEMBER MOVES INTO PERMANENT TYPE HOUSING A RIGHT TO THE ALLOWANCE CEASES EVEN THOUGH THAT EVENT HAPPENS ON THE FIRST DAY OF THE 45-DAY PERIOD. IN YOUR CASE, THE RECORD SHOWS THAT ON APRIL 15, 1953, TWO DAYS PRIOR TO THE COMMENCEMENT DATE OF YOUR CLAIM, YOU MOVED FROM BACHELOR OFFICER'S QUARTERS INTO A THREE ROOM APARTMENT. YOUR WIFE, ALSO A MEMBER OF THE SAME APARTMENT CONTINUED UNTIL OCTOBER 18, 1954. PAYMENT OF THE PER DIEM ALLOWANCE IS SUPPORTED ONLY BY A STATEMENT THAT OCCUPANCY WAS FIRST ON A TEMPORARY BASIS AND THEN ON A PERMANENT BASIS. THERE IS CONSIDERABLE DOUBT THAT PAYMENT OF STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE WAS AUTHORIZED FOR ANY PORTION OF THE 45 -DAY PERIOD SINCE IT APPEARS THAT THE APARTMENT OCCUPIED MAY HAVE BEEN PERMANENT TYPE HOUSING.

IN ANY EVENT, SINCE IT IS ESTABLISHED THAT YOU WERE OVERPAID $243 AND THAT THE AMOUNT COLLECTED FROM YOU WAS $54 LESS THAN THAT, YOUR REMITTANCE IN THE LATTER AMOUNT IN THE FORM OF CHECK OR MONEY ORDER PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" SHOULD BE MAILED TO: U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :