B-134928, MAR. 4, 1958

B-134928, MAR. 4, 1958

TO MR. JAMES G. MACNEIL, ASN O-326301:

REFERENCE IS MADE TO YOUR LETTER, POSTMARKED JANUARY 3, 1958, REQUESTING A REVIEW, ON THE BASIS OF THE CASE OF AXUP V. UNITED STATES, C.CLS. NO. 56-53, OF OUR SETTLEMENT OF JULY 11, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD AUGUST 14, 1948, TO FEBRUARY 28, 1951, WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE.

ALTHOUGH, AS STATED IN YOUR LETTER, A JUDGMENT WAS GIVEN IN FAVOR OF THE CLAIMANTS IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES, C.CLS. NO. 56-53, SUCH ACTION IN THE FORM OF AN ORDER BASED ON A STIPULATION OF THE PARTIES IS BINDING ONLY UPON THE PARTIES TO THAT ACTION AND NOT UPON THE UNITED STATES GENERAL ACCOUNTING OFFICE. HENCE, IT FORMS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

IN YOUR COMMUNICATION OF APRIL 12, 1951, YOU CERTIFIED THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE DURING THE PERIOD OF YOUR CLAIM EXCEPT FOR THE PERIODS AUGUST 19, 1948, TO MAY 31, 1949; NOVEMBER 28, 1949, TO DECEMBER 1, 1949, AND DECEMBER 11, 1950, TO DECEMBER 15, 1950, AND THAT NO GOVERNMENT MESS WAS AVAILABLE EXCEPT DURING CERTAIN BRIEF PERIODS OF HOSPITALIZATION. YOU CERTIFIED ALSO THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM JUNE 2, 1949, TO THE DATE OF YOUR CLAIM, APRIL 12, 1951.

PARAGRAPH 7A WAR DEPARTMENT CIRCULAR 196, DATED JULY 25, 1947, PROVIDED THAT STATION ALLOWANCES WILL BE PAID ONLY WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE. THIS REGULATION WAS SUPERSEDED BY PARAGRAPH 4A SPECIAL ARMY REGULATIONS 35-3080-1, DATED MAY 23, 1949, WHICH PROVIDED THAT STATION PER DIEM ALLOWANCE IS AUTHORIZED WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT AVAILABLE. PARAGRAPH 2 F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS AMENDED BY DEPARTMENT OF THE ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, DEFINES "GOVERNMENT ESS" AS FOLLOWS:

"FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. ANY ORGANIZATIONAL MESS OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUCTED AS A "GOVERNMENT MESS, FOR THE PURPOSE OF THIS CIRCULAR. RESTAURANTS AND CAFETERIAS OPERATED BY ARMY EXCHANGES OR OFFICERS' CLUBS ARE NOT CONSIDERED TO BE "GOVERNMENT MESS.'"

PARAGRAPH 2F (1), SPECIAL ARMY REGULATIONS 35-3080-1 DEFINES "GOVERNMENT MESS" IN SIMILAR LANGUAGE, THE DIFFERENCE BEING THAT THE DEFINITION INCLUDES ORGANIZATION MESSES OPERATED FOR AIR FORCE ENLISTED PERSONNEL.

THE FOREGOING REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS INSTALLATION, IF EITHER AN OFFICERS' MESS OR ORGANIZATION MESS FOR ENLISTED PERSONNEL WAS OPERATED THEREAT. THE INFORMATION FURNISHED FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES WHICH WERE AVAILABLE AT TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE AND HENCE, AN INVESTIGATION WAS CONDUCTED BY REPRESENTATIVES OF THIS OFFICE IN AN ATTEMPT TO LEARN THE FACTS WITH RESPECT THERETO. SUCH INVESTIGATION INCLUDED A REPORT AS TO THE EXISTENCE OF OFFICERS' MESS OR MESSES, AND WHILE IT IS INDICATED THAT SOME OFFICERS' MESSES WERE IN OPERATION AT ONE TIME, IT IS NOT NOW POSSIBLE TO DETERMINE WITH ANY DEGREE OF ACCURACY WHEN AND FOR WHAT OFFICERS SUCH MESSES WERE AVAILABLE. IT IS CLEAR, HOWEVER, THAT ORGANIZATION MESSES FOR ENLISTED PERSONNEL WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. SEE B-111431 DATED MARCH 17, 1953. UNDER THESE CIRCUMSTANCES, IT WOULD APPEAR THAT A "GOVERNMENT MESS," AS DEFINED IN THE GOVERNING REGULATIONS, WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE. ACCORDINGLY, AS TO STATION SUBSISTENCE PER DIEM THE SETTLEMENT OF JULY 11, 1952, IS SUSTAINED.

THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY, PRIOR TO THE ENACTMENT OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 815, WAS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS TO THEM INDIVIDUALLY AND DEPENDENTS WERE NOT CONSIDERED. SEE PARAGRAPHS 2E AND 7A, WAR DEPARTMENT CIRCULAR NO. 196, AND PARAGRAPHS 2E AND 4A, SPECIAL REGULATIONS 35-3080-1. INFORMATION FURNISHED THIS OFFICE INDICATES THAT BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949 PERMITTED CONSIDERATION BY THE SECRETARIES CONCERNED OF ALL ELEMENTS OF COST OF LIVING TO MEMBERS "AND THEIR DEPENDENTS" IN FIXING RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES. ON JUNE 30, 1950, REGULATIONS REQUIRED BY SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 815, FIRST WERE ISSUED. THE REGULATIONS AMENDED PARAGRAPH 2E, SPECIAL ARMY REGULATIONS 35-3080-1, AND PROVIDED THAT FOR PERSONNEL IN A NON-TRAVEL STATUS WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF THEIR PERMANENT STATION,"GOVERNMENT QUARTERS" SHALL INCLUDE ANY GOVERNMENT QUARTERS ADEQUATE FOR ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS, OR GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT OCCUPIED BY THE MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS. PARAGRAPH 4A OF SPECIAL ARMY REGULATIONS 35-3080-1 WAS ALSO AMENDED AND PROVIDED IN PART THAT OFFICERS WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, SHALL BE ENTITLED, IN ADDITION THERETO, TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS WHICH WILL BE IN LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS. IT FURTHER PROVIDED IN PART THAT THIS ALLOWANCE SHALL NOT BE CREDITED TO MEMBERS WHEN THEIR DEPENDENTS ARE NOT RESIDING IN THE VICINITY OF THEIR PERMANENT STATION UNLESS GOVERNMENT QUARTERS ARE NOT AVAILABLE TO THEM AT THEIR PERMANENT STATION AS MEMBERS WITHOUT DEPENDENTS. THE STATION QUARTERS RATE PRESCRIBED FOR OFFICERS ON DUTY AT TRIESTE WAS $1 A DAY. SEE SECTION II, SPECIAL ARMY REGULATIONS 35 -3080-1.

SINCE THERE IS INFORMATION AVAILABLE TO US THAT BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM, THERE IS NO PROPER BASIS, UNDER THE REGULATIONS GOVERNING STATION QUARTERS ALLOWANCE, FOR THE ALLOWANCE OF YOUR CLAIM FOR THE PERIODS AUGUST 14, 1948, TO JUNE 29, 1950. YOUR CLAIM FOR STATION QUARTERS ALLOWANCE FOR THE PERIOD JUNE 30, 1950, TO FEBRUARY 28, 1951, IS GOVERNED BY THE REGULATIONS ISSUED JUNE 30, 1950, WHICH AMENDED PARAGRAPH 2E SPECIAL ARMY REGULATIONS 35-3080-1. SEE THE PROVISIONS OF THIS REGULATION THAT ARE REFERRED TO ABOVE. THIS PORTION OF YOUR CLAIM HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER ..END :