B-141393, FEB. 19, 1960

B-141393, FEB. 19, 1960

TO MR. GEORGE R. MACKO, MA1, USN, 312-52-20:

REFERENCE IS MADE TO YOUR LETTER RECEIVED IN THIS OFFICE NOVEMBER 12, 1959, IN WHICH YOU REQUEST REVIEW OF THE SETTLEMENT OF MAY 12, 1959, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN SUBSISTENCE ALLOWANCE AND COMMUTED RATIONS DURING THE PERIOD MARCH 15, 1955, TO JUNE 30, 1958, WHILE YOU WERE ON DUTY AT THE UNITED STATES NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY. ENCLOSED WITH YOUR LETTER WERE TWO LETTERS SUBMITTED AS ADDITIONAL EVIDENCE TO SUBSTANTIATE YOUR CLAIM. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 14, 1960.

THE CLAIM WAS DISALLOWED FOR THE REASON THAT APPLICABLE REGULATIONS PROVIDE THAT MEMBERS RECEIVING COMMUTED RATIONS WHOSE DUTIES ARE PERFORMED AT INSTALLATIONS WHICH OPERATE A GENERAL MESS ARE NOT ENTITLED TO A SUPPLEMENTAL SUBSISTENCE ALLOWANCE. IT WAS STATED THAT IN THE ABSENCE OF EVIDENCE THAT A GENERAL MESS WAS NOT OPERATED AT YOUR DUTY STATION DURING THE PERIOD CLAIMED AND IN THE ABSENCE OF PROPER EVIDENCE TO SUBSTANTIATE THE PAYMENT OF SUCH SUPPLEMENTAL ALLOWANCE, THERE WAS NO AUTHORITY TO ALLOW YOUR CLAIM.

THE RECORD SHOWS THAT YOU WERE ON DUTY AT THE NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, FROM MARCH 15, 1955, THROUGH JUNE 30, 1958, AND YOU WERE IN RECEIPT OF COMMUTED RATIONS DURING THAT PERIOD. IT WAS REPORTED THAT A GOVERNMENT MESS WAS AVAILABLE TO ENLISTED PERSONNEL AT THE FACILITY, BUT THAT YOU WERE UNABLE TO USE IT IN VIEW OF YOUR HOURS OF DUTY WHICH WERE FROM 1600 TO 2400. WITH YOUR LETTER RECEIVED HERE ON NOVEMBER 12, 1959, YOU FURNISHED ADDITIONAL INFORMATION SHOWING THE ACTUAL HOURS OF OPERATION OF THE GOVERNMENT MESS EACH DAY, THE PERIOD FOR EACH MEAL COMING WITHIN THE HOURS FROM 0700 TO 1730 DAILY. ALSO, YOU FURNISHED A COPY OF CONTHREE INSTRUCTION 7220.3A, DATED AUGUST 8, 1955, SETTING UP PROCEDURES FOR REQUESTING AUTHORIZATION FOR PAYMENT OF A CASH ALLOWANCE FOR SUBSISTENCE AND/OR QUARTERS FOR ENLISTED PERSONNEL.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES, IN EFFECT, THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, ENLISTED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO BASIC ALLOWANCE FOR SUBSISTENCE, WHICH SHALL BE ONE OF THREE TYPES: (1) WHEN RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; OR (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. UNDER AUTHORITY OF SUBSECTION (D) THEREOF, REGULATIONS GOVERNING BASIC ALLOWANCE FOR SUBSISTENCE WERE PROMULGATED BY EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, 15 F.R. 1767, WHICH CONTAINS, INSOFAR AS IS PERTINENT HERE, A PROVISION THAT THE TERM "WHEN RATIONS IN KIND ARE NOT AVAILABLE" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE IT IS IMPRACTICAL FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.

RESPECTING ENLISTED MEMBERS GRANTED PERMISSION TO MESS SEPARATELY WHOSE DUTIES REQUIRE THEM TO PURCHASE ONE OR MORE MEALS FROM OTHER THAN A GOVERNMENT MESS, SECTION 301 (F) OF THE 1949 ACT, AS ADDED BY THE ACT OF AUGUST 5, 1955, 69 STAT. 538, PROVIDES THAT UNDER SUCH REGULATIONS AND IN SUCH LOCALITIES AS MAY BE PRESCRIBED BY THE SECRETARY OF DEFENSE, SUCH MEMBERS SHALL BE ENTITLED TO NOT TO EXCEED THE PRO RATA ALLOWANCE AUTHORIZED FOR EACH SUCH MEAL FOR ENLISTED MEMBERS WHEN RATIONS IN KIND ARE NOT AVAILABLE. DEPARTMENT OF DEFENSE INSTRUCTION NO. 1338.2, DATED OCTOBER 21, 1955, IMPLEMENTING THE ABOVE SUBSECTION, EFFECTIVE NOVEMBER 1, 1955, PROVIDES THAT AN ENLISTED MEMBER GRANTED PERMISSION TO MESS SEPARATELY IS ENTITLED TO A COMMUTED RATION AT THE PRESCRIBED RATE. FURTHER PROVIDES THAT SUCH A MEMBER, WHEN ASSIGNED DUTY REQUIRING HIM TO PURCHASE ONE OR MORE MEALS FROM OTHER THAN A GOVERNMENT MESS, IS ENTITLED TO THE DIFFERENCE BETWEEN THE PRORATED SHARE (ONE-THIRD FOR EACH MEAL) OF THE COMMUTED RATION, AND THE PRORATED ALLOWANCE CURRENTLY AUTHORIZED FOR THE MEAL CONCERNED WHEN RATIONS IN KIND ARE NOT AVAILABLE. PAYMENT OF SUCH ALLOWANCE IS NOT RESTRICTED TO ANY GEOGRAPHICAL LOCALITY. SUPPLEMENTAL REGULATIONS FOR ENLISTED MEMBERS OF THE NAVY ARE CONTAINED IN ARTICLES A-4403 AND A-4404, BUREAU OF NAVAL PERSONNEL MANUAL (1948 ED.). ARTICLE A-4403 SETS FORTH THE PROCEDURE FOR AUTHORIZING PAYMENT OF A SUBSISTENCE ALLOWANCE WHEN GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE OR THE UTILIZATION OF SUCH FACILITIES WOULD BE IMPRACTICABLE. ARTICLE A- 4404 FURTHER PROVIDES:

"/2) SUBSISTENCE IN KIND NOT AVAILABLE.--- AN ENLISTED MEMBER MAY BE AUTHORIZED A CASH BASIC ALLOWANCE FOR SUBSISTENCE AT THE CURRENTLY AUTHORIZED DAILY RATE WHEN:

"/A) THERE ARE NO RATIONS IN KIND AVAILABLE.

"/B) THERE ARE RATIONS IN KIND AVAILABLE BUT THE NATURE OF THE ASSIGNED DUTIES MAKES IT IMPRACTICABLE FOR THE INDIVIDUAL TO BE FURNISHED SUCH RATION.

"/5) SUPPLEMENTARY ALLOWANCE FOR SUBSISTENCE OF DIFFERENCE BETWEEN COMMUTED RATIONS AND BASIC ALLOWANCE FOR SUBSISTENCE.--- ENLISTED MEMBERS RECEIVING A COMMUTED RATION IN ACCORDANCE WITH PARAGRAPH (6) BELOW MAY BE AUTHORIZED A SUPPLEMENTARY ALLOWANCE FOR SUBSISTENCE EQUAL TO THE DIFFERENCE BETWEEN (A) THE PRORATED SHARE (ONE-THIRD FOR EACH MEAL) OF THE COMMUTED RATION, AND (B) THE PRORATED ALLOWANCE (BASIC ALLOWANCE FOR SUBSISTENCE) CURRENTLY AUTHORIZED FOR THE MEAL CONCERNED WHEN RATIONS IN KIND ARE NOT AVAILABLE, UNDER THE CIRCUMSTANCES OUTLINED BELOW. COMMANDING OFFICERS MAY APPROVE PAYMENT OF THIS SUPPLEMENTARY ALLOWANCE FOR SUBSISTENCE WITHOUT REFERENCE TO THE CHIEF OF NAVAL PERSONNEL:

"/A) AUTHORIZATION TO PAY THIS SUPPLEMENTARY SUBSISTENCE ALLOWANCE ARE SUBJECT TO THE FOLLOWING CONDITIONS:

"1. WHEN ASSIGNED DUTIES REQUIRE THE ENLISTED MEMBER TO PURCHASE ONE OR MORE MEALS FROM OTHER THAN A GOVERNMENT MESS.

"2. THERE ARE NO GEOGRAPHICAL RESTRICTIONS.

"3. CERTIFICATION OF THE COMMANDING OFFICER AS TO SPECIFIC MEALS AND DATES IS REQUIRED ON THE MILITARY PAY ORDER (DD FORM 114) AUTHORIZING PAYMENT. LOCAL VERIFICATION SHOULD BE FURNISHED BY THE OFFICER EXERCISING CLOSE DAILY SUPERVISION OVER THE INDIVIDUAL MEMBER.

"4. MEMBERS RECEIVING A COMMUTED RATION WHOSE DUTIES ARE PERFORMED ON A MILITARY INSTALLATION WHICH OPERATES A GENERAL MESS ARE NOT ELIGIBLE FOR THIS SUPPLEMENTAL SUBSISTENCE ALLOWANCE BUT SHALL BE PERMITTED TO PURCHASE MEALS FROM THE GENERAL MESS IN ACCORDANCE WITH THE PROVISIONS OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME IV. THIS DOES NOT PRECLUDE CREDIT OF THE SUPPLEMENTAL SUBSISTENCE ALLOWANCE TO THOSE MEMBERS WHEN ASSIGNED DUTIES REQUIRING ABSENCE FROM THE MILITARY INSTALLATION DURING A MEAL HOUR AND MEMBER IS UNABLE TO PURCHASE THE MEAL FROM A GOVERNMENT MESS.

"/6) COMMUTED RATIONS.

"/A) ENLISTED PERSONNEL ON DUTY WHERE A GENERAL MESS IS OPERATED AND WHO ARE ASSIGNED TO SUBSIST THEREIN MAY BE AUTHORIZED TO MESS SEPARATELY AND BE PAID A COMMUTED RATION.'

THE RECORD INDICATES THAT DURING THE ENTIRE PERIOD YOU WERE AT THE NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, YOU WERE PAID COMMUTED RATIONS, PRESUMABLY UPON YOUR APPLICATION THEREFOR, APPROVED BY THE COMMANDING OFFICER ON THE BASIS THAT MESSING FACILITIES WERE AVAILABLE TO YOU AT THAT INSTALLATION. THE CERTIFICATE EXECUTED ON MARCH 4, 1959, BY THE COMMANDING OFFICER AT YOUR DUTY STATION IS TO THE EFFECT THAT, SINCE YOU WORKED THE SHIFT FROM 1600 TO 2400 DURING THE PERIOD INVOLVED, YOU WERE UNABLE TO ATTEND THE GOVERNMENT MESS. NO INFORMATION HAS BEEN FURNISHED, HOWEVER, AS TO THE DAYS YOU WORKED SUCH SHIFT, WHETHER YOU COULD HAVE PURCHASED ANY OF YOUR MEALS FROM THE GOVERNMENT MESS WHILE WORKING THAT SHIFT, OR WHETHER YOU COULD HAVE UTILIZED THE GOVERNMENT MESS FOR THE PURCHASE OF YOUR MEALS ON DAYS THAT YOU DID NOT WORK THE ABOVE-MENTIONED SHIFT. ALSO, NO INFORMATION HAS BEEN FURNISHED AS TO THE LOCATION WHERE YOU PERFORMED YOUR DUTY, THAT IS, WHETHER AT OR AWAY FROM THE INSTALLATION WHERE YOU WERE STATIONED.

IT WILL BE NOTED THAT UNDER THE ABOVE-MENTIONED REGULATIONS, ENLISTED PERSONS ON DUTY WHERE A GENERAL MESS IS OPERATED BUT WHO HAVE BEEN AUTHORIZED TO MESS SEPARATELY AND BE PAID COMMUTED RATIONS ARE ENTITLED, COMMENCING NOVEMBER 1, 1955, TO A SUPPLEMENTAL SUBSISTENCE ALLOWANCE ONLY FOR THE MEALS WHICH THEY ARE REQUIRED TO PURCHASE FROM OTHER THAN A GOVERNMENT MESS BECAUSE OF THEIR DUTY ASSIGNMENTS. A PROPER CERTIFICATION IS REQUIRED AS TO THE SPECIFIC DATES AND MEALS INVOLVED. ALSO, IT WILL BE NOTED THAT ARTICLE A-4404 (5) (A) 4 PROVIDES THAT MEMBERS RECEIVING A COMMUTED RATION ALLOWANCE WHOSE DUTIES ARE PERFORMED ON A MILITARY INSTALLATION WHICH OPERATES A GENERAL MESS ARE NOT ELIGIBLE FOR A SUPPLEMENTAL SUBSISTENCE ALLOWANCE BUT SHALL BE PERMITTED TO PURCHASE MEALS FROM THE GENERAL MESS.

THE RECORD BEFORE US DOES NOT PRESENT SUFFICIENT INFORMATION TO PERMIT A DETERMINATION AS TO WHETHER YOU ARE ENTITLED TO A SUBSISTENCE ALLOWANCE RATHER THAN COMMUTED RATIONS FOR THE PERIOD INVOLVED OR ANY PORTION THEREOF. NEITHER IS THERE SUFFICIENT INFORMATION TO DETERMINE WHETHER YOU ARE ENTITLED TO A SUPPLEMENTAL SUBSISTENCE ALLOWANCE FOR ANY OF THE DAYS OR MEALS INVOLVED. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF MAY 12, 1959, IS SUSTAINED.