B-135856, MAY 27, 1958

B-135856, MAY 27, 1958

TO MAJOR MARTIN MARDEN:

YOUR LETTER DATED APRIL 7, 1958, REQUESTS REVIEW OF OUR SETTLEMENT DATED APRIL 1, 1958, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM BELIEVED TO BE DUE YOU FOR THE PERIOD JANUARY 7 TO MAY 5, 1955, INCIDENT TO TEMPORARY DUTY PERFORMED WHILE ATTENDING A COURSE OF INSTRUCTION AT FORT BENNING, GEORGIA, UNDER ORDERS DATED NOVEMBER 24, 1954.

UNDER THOSE ORDERS YOU WERE ASSIGNED TO DUTY AT FORT JACKSON, SOUTH CAROLINA, WITH TEMPORARY DUTY EN ROUTE AT THE 1ST STUDENT REGIMENT, THE INFANTRY SCHOOL, FORT BENNING, GEORGIA, FOR THE PURPOSE OF ATTENDING ASSOCIATE INFANTRY OFFICER ADVANCE COURSE FOR A PERIOD OF APPROXIMATELY 15 WEEKS, REPORTING NOT LATER THAN JANUARY 12, 1955. YOU WERE PAID A PER DIEM OF $1.65 FOR THE PERIOD WHILE AT THE INFANTRY SCHOOL AT FORT BENNING, GEORGIA, THE RATE AUTHORIZED FOR OFFICERS UNDERGOING INSTRUCTION AT A TEMPORARY STATION WITH GOVERNMENT QUARTERS AND MESS AVAILABLE.

YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE $1.65 RATE PAID FOR THE PERIOD INVOLVED AND THE $5 RATE AUTHORIZED FOR SUCH DUTY WHERE MESSING FACILITIES ARE NOT AVAILABLE WAS DISALLOWED BY SETTLEMENT DATED APRIL 1, 1958, ON THE BASIS THAT THE REQUIREMENTS OF A GOVERNMENT MESS WERE MET BY THE STUDENT OFFICERS' OPEN MESS AND/OR MAIN OFFICERS' OPEN MESS AT THE INFANTRY SCHOOL. IN YOUR LETTER OF APRIL 7, 1958, YOU CONTEND THAT THE STUDENT MESS WAS, IN FACT, A RESTAURANT AND CAFETERIA OPERATING AS A BRANCH OF THE OFFICERS' OPEN MESS AND NOT A GOVERNMENT MESS UNDER THE PROVISIONS OF PARAGRAPH 1150-4, JOINT TRAVEL REGULATIONS, AND THAT, THEREFORE, YOU ARE ENTITLED TO THE ADDITIONAL PER DIEM AS CLAIMED.

PARAGRAPH 4451, JOINT TRAVEL REGULATIONS, PROVIDES THAT CLAIMS OF OFFICERS FOR PER DIEM FOR PERIODS WHILE UNDERGOING COURSES OF INSTRUCTION AT AN INSTALLATION OF THE UNIFORMED SERVICES SHALL BE SUPPORTED BY A CERTIFICATE OF THE INSTALLATION COMMANDER OR COMMANDING OFFICER (OR HIS DESIGNATED REPRESENTATIVE) AS TO THE AVAILABILITY OF GOVERNMENT MESS. THE PURPOSE OF SUCH REQUIREMENT IS TO PROVIDE EVIDENCE CONTEMPORANEOUSLY OBTAINED FROM AN OFFICIAL WHOSE KNOWLEDGE OF SURROUNDING FACTS AND PHYSICAL PRESENCE AT THE STATION PARTICULARLY QUALIFY HIM FOR MAKING A DETERMINATION. NO SUCH CERTIFICATE HAS BEEN FURNISHED IN YOUR CASE. THE CONTRARY, THE COMMANDING OFFICER, THE SCHOOL BRIGADE, FORT BENNING, GEORGIA, BY SECOND INDORSEMENT OF JULY 5, 1957, ADVISED THE COMMANDING GENERAL, U.S. ARMY INFANTRY CENTER, FORT BENNING, GEORGIA, IN SUBSTANCE, THAT A FIELD RATION MESS FOR OFFICERS WAS NOT ESTABLISHED SINCE SUCH A MESS WAS NOT CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT DUE TO THE FACILITIES ALREADY AVAILABLE, BUT THAT A CERTIFICATE OF NONAVAILABILITY OF MESSING FACILITIES WAS DENIED IN YOUR CASE, AND SIMILAR CASES, BECAUSE IT HAD BEEN DETERMINED THAT THE REQUIREMENTS OF PARAGRAPH 1150.4, JOINT TRAVEL REGULATIONS, FOR GOVERNMENT MESS ARE MET BY A STUDENT OFFICERS' OPEN MESS, THE MENUS AND PRICES OF WHICH COMPARE FAVORABLY WITH WHAT AN OFFICER COULD EXPECT IN A FIELD RATION MESS. IN AN EARLIER CASE THE SAME SOURCE REPORTED THAT THIS MESS WAS ORGANIZED EXPRESSLY FOR STUDENT OFFICERS TO PROVIDE REASONABLY PRICED MEALS AND A SELECTION OF MENUS BETTER SUITED TO THEIR TASTES THAN OFFERED BY A FIELD RATION, AND THAT $1.60 WAS APPROXIMATELY THE DAILY COST OF SUBSISTING AT THIS MESS.

IN VIEW OF THE NOMINAL CHARGES FOR MEALS, AND OTHER CIRCUMSTANCES REPORTED CONCERNING THE ESTABLISHMENT AND OPERATION OF THE STUDENT OFFICERS' OPEN MESS AT THE INFANTRY SCHOOL, FORT BENNING, GEORGIA, WE FIND NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT THE REQUIREMENTS OF PARAGRAPH 1150.4 OF THE JOINT TRAVEL REGULATIONS WERE MET BY THIS MESS, AND OTHER MESSING FACILITIES AVAILABLE TO STUDENT OFFICERS AT FORT BENNING, THE EFFECT OF WHICH IS TO LIMIT THE PER DIEM PAYABLE TO SUCH OFFICERS TO THE MINIMUM AUTHORIZED RATE. B-131624, JUNE 18, 1957.