B-140612, OCT. 21, 1959

B-140612: Oct 21, 1959

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USN: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 13. OF OUR CLAIMS DIVISION FOR THE REASON THAT APPLICABLE LAW AND NAVY REGULATIONS PROVIDE FOR SUCH RATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE. WHEN SUCH MEMBERS ARE AUTHORIZED TO MESS SEPARATELY AND WHEN THE MEMBER'S APPLICATION FOR SUCH RATIONS HAS BEEN APPROVED IN ADVANCE IN WRITING BY THE COMMANDING OFFICER. THAT THE EVIDENCE SUBMITTED IN SUPPORT OF YOUR CLAIM FAILED TO SHOW THAT YOU WERE GIVEN PRIOR AUTHORIZATION TO MESS SEPARATELY. OR THAT THERE WAS ANY CONFIRMATION OF VERBAL ORDERS. THERE WAS SUBMITTED IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM A LETTER DATED JUNE 15.

B-140612, OCT. 21, 1959

TO MR. JAMES N. THOMSON, YN3, 489 3898, USN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1959, FORWARDED HERE BY THE DEPARTMENT OF THE NAVY, CONCERNING YOUR CLAIM FOR COMMUTED RATIONS FOR THE PERIOD SEPTEMBER 4, 1957, THROUGH MAY 20, 1958.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 13, 1959, OF OUR CLAIMS DIVISION FOR THE REASON THAT APPLICABLE LAW AND NAVY REGULATIONS PROVIDE FOR SUCH RATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE, WHEN SUCH MEMBERS ARE AUTHORIZED TO MESS SEPARATELY AND WHEN THE MEMBER'S APPLICATION FOR SUCH RATIONS HAS BEEN APPROVED IN ADVANCE IN WRITING BY THE COMMANDING OFFICER, AND THAT THE EVIDENCE SUBMITTED IN SUPPORT OF YOUR CLAIM FAILED TO SHOW THAT YOU WERE GIVEN PRIOR AUTHORIZATION TO MESS SEPARATELY, OR THAT THERE WAS ANY CONFIRMATION OF VERBAL ORDERS, IF ANY, TO MESS SEPARATELY.

THERE WAS SUBMITTED IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM A LETTER DATED JUNE 15, 1959, FROM P. C. STIMSON, CHIEF OF STAFF, COMMANDER, SUBMARINE FORCE, UNITED STATES PACIFIC FLEET, FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA. IN THAT LETTER IT IS STATED THAT YOUR DEPENDENTS WERE QUARTERED ON YOUR STATION DURING THE PERIOD OF YOUR CLAIM; THAT YOU FOLLOWED STANDARD CHECK-IN PROCEDURE WHEN YOU REPORTED FOR DUTY; THAT IN SUCH CASES THE ESTABLISHED PROCEDURE WAS TO ASK REPORTING PERSONNEL WITH DEPENDENTS ON STATION WHETHER COMMUTED RATIONS WERE DESIRED; THAT UPON RECEIPT OF AN AFFIRMATIVE ANSWER A RECOMMENDATION FOR COMMUTED RATIONS WAS FORWARDED TO THE COMMANDING OFFICER, UNITED STATES NAVAL SUBMARINE BASE, PEARL HARBOR, FOR APPROVAL; THAT A GENERAL MESS PASS WAS NOT ISSUED IN SUCH CASES; AND THAT SUCH A PASS WAS NOT ISSUED TO YOU. THE CHIEF OF STAFF FURTHER SAYS THAT IT IS FOUND TO BE A FACT ESTABLISHED TO MORAL CERTAINTY THAT YOU REQUESTED COMMUTED RATIONS AND THAT YOU WERE GRANTED AUTHORITY FOR CREDIT OF SUCH RATIONS ON OR ABOUT SEPTEMBER 4, 1957, BUT THAT THROUGH ADMINISTRATIVE ERROR SUCH AUTHORITY WAS NEVER REFLECTED IN YOUR PAY ACCOUNT.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE OF ONE OF THREE TYPES, TYPE (2) OF WHICH IS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 3 (C) OF EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301 STATES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS RANTED" SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH A-4404, CHANGE NO. 25, BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT ON SEPTEMBER 4, 1957, PROVIDED THAT THE CREDIT OF COMMUTED RATIONS WILL COMMENCE ON THE DATE AND THE HOUR ON WHICH THE MEMBER'S REQUEST IS APPROVED AND THAT THE COMMANDING OFFICER'S APPROVAL OF A REQUEST FOR COMMUTED RATIONS MAY NOT COVER A RETROACTIVE PERIOD PRIOR TO THE DATE AND HOUR THE REQUEST IS SUBMITTED AND THAT NO ENLISTED MEMBER SHALL BE ALLOWED TO COMMUTE HIS RATION FOR SUBSISTING HIMSELF WITHOUT AUTHORITY. SINCE THERE IS NO SHOWING THAT YOU WERE GRANTED AUTHORITY PRIOR TO THE PERIOD OF YOUR CLAIM TO MESS SEPARATELY, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

RESPECTING THE CONTENTION THAT YOUR REQUEST WAS NOT APPROVED DUE TO ADMINISTRATIVE ERROR, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 14 ID. 221, 473, 855; 54 AM. JUR. 608; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES, 148 U.S. 573; HART V. UNITED STATES, 95 U.S. 316; COOKE V. UNITED STATES, 91 U.S. 389, 398.

ACCORDINGLY, THE SETTLEMENT OF MARCH 13, 1959, DISALLOWING YOUR CLAIM, WAS CORRECT, AND IS SUSTAINED.