B-136213, JUN. 4, 1958

B-136213, JUN. 4, 1958

TO MR. NORMAN J. SEITZ:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 26, 1958, REQUESTING REVIEW OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN ADVISING YOU THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $149.38 ARISING FROM OVERPAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WHILE SERVING AS AN ENLISTED MAN, UNITED STATES AIR FORCE.

SECTION 301 (E) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 251 (E), AUTHORIZES PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED PERSONS AT A GREATER RATE WHEN DUTY IS PERFORMED "UNDER EMERGENCY CONDITIONS" THAN WHEN DUTY IS PERFORMED UNDER NORMAL CONDITIONS IN PLACES WHERE GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE. SECTION 3 (D), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER AUTHORITY CONTAINED IN SECTION 301, DEFINES SUCH EMERGENCY CONDITIONS AS "CONDITIONS REQUIRING EXTRAORDINARY EXPENSES FOR SUBSISTENCE" AS DETERMINED IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED. APPLICABLE AIR FORCE REGULATIONS CONTAINED IN PARAGRAPH 20104-B (4), AIR FORCE MANUAL 173-20, JULY 1, 1952, PROVIDED THAT DETERMINATIONS AS TO WHETHER "EMERGENCY CONDITIONS" EXIST IN A PARTICULAR LOCALITY WOULD BE MADE BY HEADQUARTERS, UNITED STATES AIR FORCE.

IN THE PRESENT CASE, MILITARY PAY ORDER NO. 4, DETACHMENT 8, 3933D, RADAR BOMB SCORING SQUADRON, CHELI AIR FORCE SPECIAL DEPOT, MAYWOOD, CALIFORNIA, DATED JULY 22, 1952, SHOWS THAT YOU AND OTHER AIRMEN AT THAT LOCATION WERE AUTHORIZED AN INCREASE IN BASIC ALLOWANCE FOR SUBSISTENCE FROM $2.25 TO $3 PER DAY EFFECTIVE IN YOUR CASE ON JUNE 27, 1952, BY 12TH INDORSEMENT, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS UNITED STATES AIR FORCE, DATED JUNE 25, 1952. LINE 40 OF YOUR PAY RECORD SHOWS YOU WERE AUTHORIZED EMERGENCY BASIC ALLOWANCE FOR SUBSISTENCE AS PROVIDED IN PARAGRAPH 6C, AIR FORCE REGULATIONS 173 124, DATED MARCH 13, 1951, PURSUANT TO THE 12TH INDORSEMENT MENTIONED ABOVE. THE RATE SPECIFIED IN THAT REGULATION WAS $3 PER DAY. THE RECORD SHOWS, HOWEVER, THAT YOU WERE PAID AT THE RATE OF $3.42 PER DAY FOR THE PERIOD JUNE 27, 1952, TO JUNE 30, 1953, RESULTING IN AN OVERPAYMENT OF $154.84, REDUCED TO $149.38 BY COLLECTION WHILE YOU WERE IN THE SERVICE.

IN YOUR PRESENT LETTER YOU PLACE RELIANCE ON THE ACT OF MAY 19, 1952, 66 STAT. 80, AS AUTHORITY FOR PAYMENT OF THE HIGHER RATE. WHILE THE ACT OF MAY 19, 1952, PERMITTED THE PAYMENT OF AN INCREASED RATE EFFECTIVE MAY 1, 1952, IT DID NOT AUTOMATICALLY INCREASE THE RATE TO $3.42, AND THE PROMULGATION OF PARAGRAPH 20101-D, AIR FORCE MANUAL 173 20, JULY 1, 1952, WHICH AUTHORIZED PAYMENT IN THE LANGUAGE OF THE STATUTE AT "NOT TO EXCEED" $3.42 PER DAY, DID NOT ACCOMPLISH THAT RESULT, SINCE NEITHER WAS SELF- EXECUTING. AN ADMINISTRATIVE DETERMINATION AND AUTHORIZATION WAS NECESSARY TO PUT THE RATE IN EFFECT IN A PARTICULAR LOCALITY. SINCE THE AUTHORIZATION OF JUNE 25, 1952, WAS FOR PAYMENT OF THE SUBSISTENCE ALLOWANCE AT THE RATE OF $3 PER DAY IT SEEMS CLEAR THAT PAYMENT AT A HIGHER RATE WAS ERRONEOUS.

ACCORDINGLY, THE ACTION TAKEN IN YOUR CASE IS SUSTAINED. YOUR REMITTANCE IN THE FORM OF CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" SHOULD BE FORWARDED TO:

U.S. GENERAL ACCOUNTING OFFICE ..END :