B-137497, DEC 2, 1958

B-137497, DEC 2, 1958

PRECIS-UNAVAILABLE

JOHN C. FRALISH, LT. COLONEL, U.S.A.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 5, 1958, REQUESTING RECONSIDERATION OF CLAIMS DIVISION'S SETTLEMENT OF OCTOBER 25, 1955, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM WHILE STATIONED IN GUATEMALA AS A MEMBER OF THE UNITED STATES ARMY MISSION IN GUATEMALA.

YOU STATE THAT OTHER MEMBERS OF THE SAME ORGANIZATION HAVE BEEN PAID UNDER THE PROVISIONS OF THE AUTHORITY CONTAINED IN SECTION IV, CIRCULAR 225, DEPARTMENT OF THE ARMY, DATED JULY 29, 1948, CITED BY YOU IN YOUR ORIGINAL CLAIM. YOU STATE FURTHER THAT YOU INCURRED EXTRA EXPENSES WHILE AT THE ARMY MISSION, WHICH WERE MORE THAN THE COMPENSATION PAID YOU BY THE HOST GOVERNMENT AND THAT YOU RECEIVED NO PER DIEM OR OTHER ADDITIONAL PAY TO COVER THE EXTRA EXPENSES.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 229, HEADQUARTERS, CARIBBEAN DEFENSE COMMAND, DATED OCTOBER 11, 1947, YOU WERE RELIEVED FROM ASSIGNMENT WITH THE 764TH AAA GUN BATTALION, FORT DAVIS, CANAL ZONE, AND FROM SERVICE UNIT 7404, QUARRY HEIGHTS, CANAL ZONE, AND ASSIGNED TO SERVICE UNIT 7415 (UNITED STATES ARMY MISSION TO GUATEMALA), EFFECTIVE OCTOBER 16, 1947. ORDERS OF MAY 4, 1949, YOU WERE RELIEVED FROM ASSIGNMENT AT GUATEMALA AND ORDERED TO RETURN TO THE UNITED STATES ON OR ABOUT AUGUST 1, 1949. IT WAS REPORTED BY THE OFFICE OF THE UNITED STATES ARMY MISSION TO GUATEMALA THAT YOU OCCUPIED RENTAL QUARTERS, AND WERE PAID COMPENSATION BY THE HOST GOVERNMENT, BASED ON THE THEN EXISTING MISSION CONTRACT, THROUGH JULY 1949.

CLAIMS DIVISION SETTLEMENT, DATED OCTOBER 25, 1955, DISALLOWED YOUR CLAIM FOR PER DIEM FROM OCTOBER 16, 1947, TO AUGUST 1, 1949, FOR THE REASON THAT REGULATIONS PROVIDE THAT MEMBERS OF MILITARY MISSIONS RECEIVING ADDITIONAL PAY, ALLOWANCES, OR QUARTERS FROM FOREIGN GOVERNMENTS WILL NOT RECEIVE STATION PER DIEM ALLOWANCES EXCEPT AS SPECIFICALLY AUTHORIZED BY THE SECRETARY OF WAR (SECRETARY OF THE ARMY), AND THERE IS NO RECORD OF A SPECIFIC AUTHORIZATION BEING MADE BY THE SECRETARY, TO ENTITLE YOU TO PAYMENT OF PER DIEM.

WAR DEPARTMENT CIRCULAR NO. 196, DATED JULY 25, 1947, SET FORTH THE REGULATIONS, EFFECTIVE JULY 1, 1947, COVERING TRAVEL AND STATION ALLOWANCES FOR MILITARY PERSONNEL TRAVELING OR ON DUTY OUTSIDE CONTINENTAL LIMITS OF THE UNITED STATES. THE REGULATIONS ESTABLISHED RATES FOR TRAVEL AND STATION ALLOWANCES FOR VARIOUS COUNTRIES AND AREAS IN ACCORDANCE WITH DETERMINATIONS MADE BY THE SECRETARY OF WAR AND PROVIDED THAT THEREAFTER MILITARY PERSONNEL ENTITLED TO SUCH ALLOWANCES WOULD BE PAID IN ACCORDANCE WITH THE REGULATIONS AS SET FORTH.

PARAGRAPH 10(B) OF THE ABOVE MENTIONED REGULATIONS, PROVIDES AS FOLLOWS:

"B. MEMBERS OF MILITARY MISSIONS OR OTHER MILITARY PERSONNEL, RECEIVING ADDITIONAL PAY, ALLOWANCES OR QUARTERS FROM FOREIGN GOVERNMENTS OR AGENCIES OF THE UNITED STATES OTHER THAN THE WAR DEPARTMENT WILL NO RECEIVE THE ALLOWANCES SPECIFIED HEREIN EXCEPT AS SPECIFICALLY AUTHORIZED BY THE SECRETARY OF WAR."

THIS PROVISION REMAINED IN EFFECT WITH LITTLE CHANGE, DURING THE PERIOD OF YOUR CLAIM. SECTION IV, CIRCULAR 225, DEPARTMENT OF THE ARMY, DATED JULY 29, 1948, WHICH YOU CITED AS AUTHORITY FOR PAYMENT OF STATION ALLOWANCES, AMENDED WAR DEPARTMENT CIRCULAR 196, BY PROVIDING, AMONG OTHER THINGS, THAT EFFECTIVE OCTOBER 1, 1947, THE DAILY STATION RATES FOR OFFICERS AT GUATEMALA, COVERING SUBSISTENCE AND QUARTERS, WAS $3.75. DID NOT CHANGE THE PROVISION IN PARAGRAPH 10B QUOTED ABOVE, AND PROVIDED NO OTHER AUTHORITY FOR PAYMENT OF MEMBERS COMING WITHIN THE PURVIEW OF THAT PARAGRAPH.

THERE IS NO EVIDENCE THAT A SPECIFIC AUTHORIZATION WAS MADE BY THE SECRETARY OF WAR (SECRETARY OF THE ARMY) AS REQUIRED BY PARAGRAPH 10B AND, IN THE ABSENCE OF SUCH AUTHORIZATION, THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE DISALLOWANCE IS SUSTAINED.

AS TO YOUR STATEMENT THAT OTHER OFFICERS OF THE ARMY MISSION HAVE BEEN PAID, WE HAVE NO INFORMATION IN THE MATTER. IT MAY BE SAID, HOWEVER, THAT IF THEY HAD BEEN COMPENSATED BY THE HOST GOVERNMENT, PAYMENT WOULD NOT BE AUTHORIZED UNLESS THEY HAD OBTAINED SPECIFIC AUTHORIZATION FROM THE SECRETARY OF THE ARMY. IN ANY EVENT, SUCH PAYMENTS MAY NOT BE CONSIDERED AS AUTHORIZING SIMILAR PAYMENTS TO YOU.