B-145091, APR. 27, 1961

B-145091: Apr 27, 1961

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FIOCCHI: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE EVIDENCE OF RECORD WAS NOT SUFFICIENT TO ESTABLISH THAT YOU HAD BEEN AUTHORIZED TO MESS SEPARATELY FOR ANY PART OF THE PERIOD INVOLVED. AUTHORIZE PAYMENT OF A MONETARY ALLOWANCE FOR SUBSISTENCE TO ENLISTED MEN ON DUTY AT STATIONS WHERE A GOVERNMENT MESS IS AVAILABLE IF PERMISSION TO MESS SEPARATELY IS GRANTED. WE HAVE HELD. THAT RETROACTIVE WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED ONLY IF IT IS SHOWN THAT THEY ARE ISSUED IN CONFIRMATION OF VERBAL ORDERS ISSUED AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED. YOU NOW HAVE FURNISHED IN SUPPORT OF YOUR CLAIM A COPY OF SPECIAL ORDERS NO. 48.

B-145091, APR. 27, 1961

TO MR. JAMES A. FIOCCHI:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 24, 1961, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE RATIONS FOR THE PERIOD FROM MAY 25, 1959, TO MAY 11, 1960, INCIDENT TO YOUR ENLISTED SERVICE IN THE ARMY. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE EVIDENCE OF RECORD WAS NOT SUFFICIENT TO ESTABLISH THAT YOU HAD BEEN AUTHORIZED TO MESS SEPARATELY FOR ANY PART OF THE PERIOD INVOLVED.

WHILE SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AND THE PRESIDENTIAL REGULATIONS ISSUED PURSUANT THERETO, AUTHORIZE PAYMENT OF A MONETARY ALLOWANCE FOR SUBSISTENCE TO ENLISTED MEN ON DUTY AT STATIONS WHERE A GOVERNMENT MESS IS AVAILABLE IF PERMISSION TO MESS SEPARATELY IS GRANTED, WE HAVE HELD, GENERALLY, THAT RETROACTIVE WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED ONLY IF IT IS SHOWN THAT THEY ARE ISSUED IN CONFIRMATION OF VERBAL ORDERS ISSUED AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED.

YOU NOW HAVE FURNISHED IN SUPPORT OF YOUR CLAIM A COPY OF SPECIAL ORDERS NO. 48, HEADQUARTERS PIRMASENS POST, APO 189, DATED JUNE 4, 1959, PARAGRAPH 9 OF WHICH READS IN PERTINENT PART AS FOLLOWS:

"9. PAC AR 37-104 FOL NAMED EM ORG INDIC ARE AUTH TO MESS SEPARATELY A/R $1.15 PER DAY EFF DATE INDICATED:

"PFC E-3 JAMES A FIOCCHI, US55644732, 1ST ORD CO (PROV) 82ND ORD BN, APO 189, EFF 23 MAY 59.'

THERE IS IN THE FILE A WRITTEN STATEMENT OF THE COMMANDING OFFICER, 583RD ORDNANCE COMPANY, APO 189, DATED AUGUST 23, 1960, WHICH READS AS FOLLOWS:

"TO THE BEST OF MY KNOWLEDGE AND THE KNOWLEDGE OF HIS IMMEDIATE SUPERVISORS, JAMES A FIOCCHI, US 55 644 732, DID NOT SUBSIST AT GOVERNMENT EXPENSE DURING THE PERIOD 25 MAY 1959 THRU 11 MAY 1960. PFC FIOCCHI RESIDED ON THE LOCAL ECONOMY WITH HIS WIFE DURING THIS PERIOD OF TIME.'

IT APPEARS FROM AN EXAMINATION OF SPECIAL ORDERS NO. 82, HEADQUARTERS 82ND ORDNANCE BATTALION, APO 872, DATED MAY 12, 1960, WHICH PURPORTED TO AUTHORIZE SEPARATE RATIONS IN YOUR CASE RETROACTIVE TO MAY 25, 1959, THAT YOU WERE SERVING WITH THE 583RD ORDNANCE COMPANY OF THAT BATTALION ON MAY 12, 1960. IN OTHER WORDS, YOU WERE THEN SERVING WITH A DIFFERENT COMPANY BUT WITH THE SAME BATTALION WITH WHICH YOU WERE SERVING ON JUNE 4, 1959. THERE WAS NO SHOWING IN THOSE ORDERS THAT THEY WERE ISSUED IN CONFIRMATION OF PRIOR VERBAL ORDERS. IT FURTHER APPEARS THAT UNDER SUCH ORDERS YOU WERE PAID SEPARATE RATIONS FROM MAY 12, 1960, TO MAY 19, 1960.

THE EVIDENCE NOW OF RECORD IS CONSIDERED SUFFICIENT TO ESTABLISH THAT YOU WERE AUTHORIZED TO MESS SEPARATELY FROM JUNE 4, 1959, TO MAY 11, 1960, AND THAT YOU WERE NOT IN FACT SUBSISTED AT A GOVERNMENT MESS DURING THAT PERIOD. SINCE IT IS NOT SHOWN IN THE ORDERS OF JUNE 4, 1959, THAT SUCH ORDERS WERE ISSUED IN CONFIRMATION OF EARLIER VERBAL ORDERS AUTHORIZING YOU TO MESS SEPARATELY AS OF MAY 23, 1959, SUCH ORDERS MAY NOT BE CONSIDERED AS AUTHORIZING YOU TO MESS SEPARATELY PRIOR TO JUNE 4, 1959.

ACCORDINGLY, A SETTLEMENT WILL BE STATED IN YOUR FAVOR FOR THE AMOUNTS FOUND DUE YOU AS SEPARATE RATIONS, AT THE APPLICABLE RATES, FOR THE PERIODS FROM JUNE 4, 1959, TO APRIL 3, 1960, AND APRIL 23, 1960, TO MAY 11, 1960. SINCE THE RECORDS SHOW THAT YOU WERE PAID LEAVE RATIONS FOR THE PERIOD FROM APRIL 4, 1960, TO APRIL 22, 1960, YOU ARE NOT ENTITLED TO SEPARATE RATIONS FOR THAT PERIOD.