B-135802, APR. 29, 1958

B-135802, APR. 29, 1958

TO LIEUTENANT COLONEL WILLIAM H. COX:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 27, 1958, CONCERNING THE STATUS OF YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD OCTOBER 5, 1957, TO JULY 14, 1949, WHILE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. THE CLAIM WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF JUNE 27, 1952. YOU MENTION THE CASE AXUP V. UNITED STATES. C.CLS. NO. 56-53, APPARENTLY AS HAVING SOME SIGNIFICANCE IN OUR CONSIDERATION OF THE MATTER.

ALTHOUGH A JUDGMENT REPRESENTING STATION PER DIEM AT TRIESTE WAS GIVEN IN FAVOR OF THE CLAIMANTS IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES, SUCH ACTION WAS IN THE FORM OF AN ORDER BASED ON A STIPULATION OF THE PARTIES AND IS BINDING ONLY UPON THE PARTIES TO THAT ACTION AND NOT UPON THE GENERAL ACCOUNTING OFFICE. HENCE, IT FORMS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

PARAGRAPH 7A, WAR DEPARTMENT CIRCULAR 196, DATED JULY 25, 1947, PROVIDED THAT STATION ALLOWANCES WILL BE PAID ONLY WHEN 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 THIS REGULATION WAS SUPERSEDED BY PARAGRAPH 4A, SPECIAL ARMY REGULATIONS 35-3080-1, DATED MAY 23, 1949, WHICH PROVIDED THAT STATION PER DIEM ALLOWANCE IS AUTHORIZED WHEN GOVERNMENT QUARTERS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 2F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS AMENDED BY DEPARTMENT OF THE ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, DEFINES ,GOVERNMENT MESS" 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 AS 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 ORGANIZATIONAL 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 ORGANIZATIONAL 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 ORGANIZATIONAL MESSES FOR ENLISTED PERSONNEL WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. SEE B- 111431, MACH 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.

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 DURING MOST OF THE PERIOD COVERED BY YOUR CLAIM YOU AND YOUR DEPENDENTS OCCUPIED GOVERNMENT QUARTERS AND THAT FOR THE REMAINDER OF THAT PERIOD BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM. ACCORDINGLY, THE SETTLEMENT OF JUNE 27, 1952, IS SUSTAINED.