B-135286, APR. 2, 1958

B-135286: Apr 2, 1958

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USAF 1542 4306: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 5. WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED JANUARY 31. WAS LOST DUE TO NO FAULT OF YOUR OWN AND THAT THE CERTIFICATES. YOU ALSO STATE THAT A CHECK OF YOUR MILITARY PAY RECORD WILL ALSO VERIFY THE FACT THAT YOU HAVE NOT RECEIVED A RATION ALLOWANCE DURING THE PERIOD CLAIMED. WHICH SETS FORTH THE POLICY AND PROCEDURE FOR AUTHORIZATION OF SEPARATE RATIONS WAS SUBMITTED BY YOU. TYPE 2 OF WHICH IS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.'. 1950) ISSUED UNDER AUTHORITY OF SECTION 301 STATED THAT SUCH PROVISION SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATION OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

B-135286, APR. 2, 1958

TO TECHNICAL SERGEANT GLEN Y. MURPHY, USAF 1542 4306:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 5, 1958, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD NOVEMBER 26, 1956, TO AUGUST 31, 1957, WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED JANUARY 31, 1958.

YOU STATE THAT APPLICATION FOR RATIONS FILED BY YOU ON NOVEMBER 30, 1956, WAS LOST DUE TO NO FAULT OF YOUR OWN AND THAT THE CERTIFICATES, DS FORM 114, DATED OCTOBER 4, 1957, FILED IN SUPPORT OF YOUR CLAIM, WHILE THEY MAY BE IN ERROR AS TO DATE, VERIFY THAT YOU HAD NOT RATIONED AT GOVERNMENT EXPENSE DURING THE PERIOD CLAIMED. YOU ALSO STATE THAT A CHECK OF YOUR MILITARY PAY RECORD WILL ALSO VERIFY THE FACT THAT YOU HAVE NOT RECEIVED A RATION ALLOWANCE DURING THE PERIOD CLAIMED. A COPY OF BASE REGULATIONS NO. 173-2 DATED MARCH 24, 1954, WHICH SETS FORTH THE POLICY AND PROCEDURE FOR AUTHORIZATION OF SEPARATE RATIONS WAS SUBMITTED BY YOU, APPARENTLY IN SUBSTANTIATION OF A CONTENTION THAT ADMINISTRATIVE FAILURE OR OVERSIGHT IN ISSUING APPROPRIATE AUTHORIZATION FOLLOWING YOUR APPLICATION THEREFORE SHOULD NOT OPERATE TO DEPRIVE YOU OF PAYMENT FOR THE THEREFORE SHOULD NOT OPERATE TO DEPRIVE YOU OF PAYMENT FOR THE SUBSISTENCE ALLOWANCE CLAIMED.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 251 (A), 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.' EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, (37 U.S.C. 251; AF BUL. 8, 1950) ISSUED UNDER AUTHORITY OF SECTION 301 STATED THAT SUCH PROVISION SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATION OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH 20104-B, AFM 173-20 PROVIDES THAT:

"/1) AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS AT THE RATES PRESCRIBED IN PARAGRAPH 20101D UNDER CIRCUMSTANCES DESCRIBED BELOW:

"* * * (B) WHEN AUTHORIZED BY THE INSTALLATION COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS.'

PARAGRAPH 20108, AFM 173-20 PROVIDES THAT PAYMENT WILL BE AUTHORIZED FOR-

"B.AIRMEN. AFTER DETERMINATION IS MADE * * *; OR AUTHORIZATION IS GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS * * *. THE DETERMINATION OR AUTHORIZATION OF THE INSTALLATION COMMANDER IS CONCLUSIVE OF THE RIGHTS OF THE AIRMAN * * *.

THUS IT WILL READILY BE SEEN THAT THE ALLOWANCE IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED PERSON WAS AUTHORIZED BY PROPER AUTHORITY PRIOR TO THE PERIOD INVOLVED TO MESS SEPARATELY.

YOUR CLAIM IS SUPPORTED BY CERTIFICATION THAT STATE SEPARATE RATIONS WILL START ON NOVEMBER 29, 1958, AND JANUARY 26, 1957, BUT BOTH CERTIFICATES ARE DATED OCTOBER 4, 1957, AFTER THE DUTY HAS BEEN PERFORMED. SUCH CERTIFICATES MAY NOT BE ACCEPTED AS CONTEMPORANEOUS ORDERS OR AUTHORIZATION TO MESS SEPARATELY. THE LETTER OF OCTOBER 8, 1957, FROM FORBES AIR FORCE BASE, WHICH IS PART OF THE FILE SUBMITTED WITH YOUR CLAIM THROUGH CHANNELS, STATES THAT NO ORGANIZATION FILE COPY OF THE SEPARATE RATIONS REQUEST IS AVAILABLE TO SUPPORT THE CLAIM AND THAT NOTHING, OTHER THAN THE STATEMENTS AVAILABLE, SEEMS TO SUBSTANTIATE WHAT YOU WERE REQUIRED TO TURN IN YOUR MESS PASS AT THE TIME, OR THAT YOUR "LIBERTY PASS" WAS PROPERLY MARKED INDICATING SEPARATE RATIONS. THERE IS NO SHOWING THAT YOU WERE GRANTED AUTHORITY PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM TO MESS SEPARATELY AND, HENCE, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS.

RESPECTING YOUR IMPLIED 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. 606; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES 148 U.S. 573; HART 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.