B-135349, MAR. 27, 1958

B-135349, MAR. 27, 1958

TO SERGEANT FIRST CLASS TOLBERT L. STALLINGS:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1957, AND ENCLOSURES, FORWARDED HERE BY THE FINANCE CENTER, INDIANAPOLIS, INDIANA, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 1, 1951, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD NOVEMBER 1, 1949, TO FEBRUARY 28, 1951, WHILE SERVING IN THE FREE TERRITORY OF TRIESTE.

IN SUPPORT OF YOUR CLAIM YOU CERTIFIED UNDER DATE OF APRIL 12, 1951, THAT DURING THE PERIOD INVOLVED GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE, THAT NO AUTHORIZED TRAVEL PER DIEM WAS PAID FOR THE PERIOD, AND THAT NO MONETARY ALLOWANCE OF ANY NATURE HAS BEEN DRAWN FROM THE UNITED NATIONS IN CONNECTION WITH ANY DUTY SUBSEQUENT TO MAY 31, 1948. YOU FURTHER CERTIFIED THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM NOVEMBER 1, 1949, TO THE DATE OF YOUR CLAIM, APRIL 12, 1951.

WAR DEPARTMENT CIRCULAR 196, EFFECTIVE JULY 25, 1947, PRESCRIBED THE REGULATIONS WHICH WOULD GOVERN THE REIMBURSEMENT TO ALL MILITARY PERSONNEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES FOR TRAVEL OR STATION ALLOWANCES. PARAGRAPH 7A OF THAT CIRCULAR PROVIDED THAT STATION ALLOWANCES WOULD BE PAID ONLY WHERE GOVERNMENT QUARTERS AND GOVERNMENT MESSES WERE NOT AVAILABLE. THIS REGULATION WAS SUPERSEDED BY PARAGRAPH 4A, SPECIAL REGULATION 35-3080-1, DATED MAY 23, 1949, WHEREIN IT WAS STATED THAT MILITARY PERSONNEL IN A PAY STATUS PERMANENTLY STATIONED IN A CLASSIFIED COUNTRY OR AREA FOR WHICH STATION PER DIEM ALLOWANCE RATES HAVE BEEN ESTABLISHED--- OF WHICH THE FREE TERRITORY OF TRIESTE WAS ONE--- ARE ENTITLED TO THE PRESCRIBED STATION PER DIEM ALLOWANCE WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT AVAILABLE. "GOVERNMENT MESS" IS DEFINED IN SECTION IV, SUBSECTION 2F (1) OF ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, WHICH RESCINDED PARAGRAPH 2F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS FOLLOWS: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 CONSTRUED 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.'"

SPECIAL REGULATION 35-3080-1 AT PARAGRAPH 2F (1) DEFINES "GOVERNMENT MESS, IN SIMILAR LANGUAGE, THE ONLY DIFFERENCE BEING THAT THE DEFINITIONS THEREIN GIVEN INCLUDES ORGANIZATIONAL MESSES OPERATED FOR AIR FORCE ENLISTED PERSONNEL AND EXCLUDES, AS IN THE CASE OF THE ARMY, A RESTAURANT OR CAFETERIA OPERATED BY THE AIR FORCE FROM CONSIDERATION AS A "GOVERNMENT MESS.'

THE REGULATIONS QUOTED ABOVE 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 ORGANIZATIONAL MESS FOR ENLISTED MEN, WAS IN OPERATION. THE INFORMATION FURNISHED OUR OFFICE FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES AVAILABLE AT TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE, CONSEQUENTLY, AN INVESTIGATION WAS MADE BY OUR REPRESENTATIVES IN AN EFFORT TO LEARN THE ACTUAL FACTS RELATIVE TO THIS MATTER. SUCH INVESTIGATION INCLUDED A REPORT AS TO THE EXISTENCE OF OFFICERS' 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 THEY WERE AVAILABLE. HOWEVER, IT IS CLEAR THAT ORGANIZATIONAL MESSES FOR ENLISTED MEN WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. CONSEQUENTLY, IT WOULD APPEAR THAT A "GOVERNMENT MESS," AS DEFINED IN THE PERTINENT REGULATIONS, WAS AVAILABLE TO YOU AS AN OFFICER DURING THE PERIOD OF YOUR CLAIM, AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE. THEREFORE, AS TO STATION SUBSISTENCE PER DIEM, OUR SETTLEMENT OF AUGUST 1, 1951, IS SUSTAINED.

PRIOR TO THE ENACTMENT OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, THE GOVERNING REGULATIONS, FOUND AT PARAGRAPHS 2E AND 7A OF WAR DEPARTMENT CIRCULAR NO. 196, AND PARAGRAPHS 2E AND 4A, SPECIAL REGULATIONS 35-3080-1, PROVIDED THAT THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY WAS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS TO THEM INDIVIDUALLY AND DEPENDENTS WERE NOT CONSIDERED. HOWEVER, WITH THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, THE SECRETARIES OF THE UNIFORMED SERVICES WERE GIVEN AUTHORITY TO CONSIDER ALL THE ELEMENTS OF THE COST OF LIVING TO MEMBERS "AND THEIR DEPENDENTS" IN FIXING THE RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN COUNTRIES. IT WAS NOT UNTIL JUNE 30, 1950, THAT THE REGULATIONS REQUIRED BY THIS ACT WERE ISSUED. THESE REGULATIONS AMENDED PARAGRAPH 2E, SPECIAL REGULATIONS 35-3080-1, AND PROVIDE IN PERTINENT PART AS FOLLOWS:

"* * * FOR PERSONNEL IN A NON-TRAVEL STATUS WHERE 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.'

ALSO AMENDED WAS PARAGRAPH 4A, SPECIAL REGULATIONS 35-3080-1, TO PROVIDE THAT OFFICERS WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, SHOULD BE ENTITLED, IN ADDITION TO THE RIGHTS VESTED BY THAT ACT, TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS WHICH WOULD BE IN LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS. THIS AMENDMENT FURTHER PROVIDED IN PERTINENT PART:

"* * * THIS ALLOWANCE SHALL NOT BE CREDITED TO MEMBERS WITH DEPENDENTS 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.'

SECTION II, SPECIAL REGULATIONS 35-3080-1, PRESCRIBED A STATION QUARTERS ALLOWANCE OF $1 A DAY FOR OFFICER PERSONNEL ON DUTY IN TRIESTE.

AS 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 FOR THE ALLOWANCE OF YOUR CLAIM FROM NOVEMBER 1, 1949, 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 REFERRED TO ABOVE, ISSUED JUNE 30, 1950, WHICH AMENDED PARAGRAPH 2E SPECIAL REGULATIONS 35-3080-1. THIS PORTION OF YOUR CLAIM HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER CONSIDERATION AND YOU WILL BE ADVISED OF THE ACTION TAKEN.