B-137983, DEC 16, 1958

B-137983: Dec 16, 1958

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DECKLIN: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF JULY 11. ALTHOUGH A JUDGMENT REPRESENTING PAYMENT OF STATION QUARTERS PER DIEM ALLOWANCE IN CONNECTION WITH DUTY PERFORMED AT TRIESTE WAS ENTERED IN FAVOR OF SOME OF THE PLAINTIFFS. 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. F (1) PROVIDED AS FOLLOWS: "(1) FOR OFFICERS - 'GOVERNMENT MESS' IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THESE REGULATIONS.

B-137983, DEC 16, 1958

PRECIS-UNAVAILABLE

CAPTAIN PAUL H. DECKLIN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1958, REGARDING YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD AUGUST 17, 1949, TO FEBRUARY 28, 1951, WHILE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF JULY 11, 1952. YOU REQUEST RECONSIDERATION OF THE SETTLEMENT IN VIEW OF THE ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASE OF AXUP V. UNITED STATES, C. CLS. NO. 56- 53, ON OCTOBER 9, 1957.

ALTHOUGH A JUDGMENT REPRESENTING PAYMENT OF STATION QUARTERS PER DIEM ALLOWANCE IN CONNECTION WITH DUTY PERFORMED AT TRIESTE WAS ENTERED IN FAVOR OF SOME OF THE PLAINTIFFS, IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES, THE COURT DECIDED NONE OF THE LEGAL QUESTIONS INVOLVED. 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.

SPECIAL REGULATIONS 35-3080-1, DATED MAY 23, 1949, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, GOVERNED THE PAYMENT OF TRAVEL AND STATION PER DIEM TO MILITARY PERSONNEL ON DUTY OUTSIDE THE UNITED STATES. PARAGRAPH 2, F (1) PROVIDED AS FOLLOWS:

"(1) 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, AIR FORCE, OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A 'GOVERNMENT MESS' FOR THE PURPOSE OF THESE REGULATIONS. A RESTAURANT OR CAFETERIA OPERATED BY ARMY OR AIR FORCE EXCHANGES OR OFFICERS' CLUBS IS NOT CONSIDERED TO BE A 'GOVERNMENT MESS.'"

PARAGRAPH 4A PROVIDED THAT STATION PER DIEM ALLOWANCES WERE AUTHORIZED WHERE GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS WERE NOT AVAILABLE.

THESE REGULATIONS DID 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 ORIGINALLY FURNISHED FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES AVAILABLE AT TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE. SUBSEQUENT INVESTIGATION BY REPRESENTATIVES OF THIS OFFICE INDICATED THAT WHILE SOME OFFICERS' MESSES WERE IN OPERATION AT ONE TIME, IT WAS NOT 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. THEREFORE, AS TO STATION SUBSISTENCE PER DIEM, THE SETTLEMENT OF JULY 11, 1952, IS SUSTAINED.

PRIOR TO THE ENACTMENT OF SECTION 303(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY WAS GOVERNED BY THE AVAILABILITY OF GOVERNMENT QUARTERS TO THE MILITARY PERSONNEL THEMSELVES 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 BY THE SECRETARY OF THE ARMY. SUCH REGULATIONS AMENDED PARAGRAPH 2E, SPECIAL REGULATIONS 35-3080-1, TO PROVIDE IN PERTINENT PART AS FOLLOWS:

"*** FOR PERSONNEL IN A NON-TRAVEL STATUS WHOSE 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."

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

AS AVAILABLE INFORMATION SHOWS 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 FOR STATION QUARTERS PER DIEM FROM AUGUST 17, 1949 TO JUNE 29, 1950. ALSO, SINCE THE RECORD SHOWS THAT QUARTERS WERE ASSIGNED TO YOU AND YOUR DEPENDENTS EFFECTIVE JULY 16, 1950, NO STATION QUARTERS PER DIEM IS DUE FROM JULY 16, 1950, TO FEBRUARY 28, 1951. INASMUCH AS YOU INDICATE THAT YOUR WIFE ARRIVED IN TRIESTE WITH YOU AUGUST 17, 1949, YOU ARE ENTITLED TO STATION QUARTERS PER DIEM AT $1 PER DAY FROM JUNE 30 THORUGH JULY 15, 1950. THAT PORTION OF YOUR CLAIM HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER CONSIDERATION AND YOU WILL BE ADVISED AS TO THE ACTION TAKEN.