B-145920, SEPTEMBER 21, 1961, 41 COMP. GEN. 206

B-145920: Sep 21, 1961

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ETC. - EFFECT PERMISSION TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES TO MESS SEPARATELY MAY ONLY BE GRANTED UPON THE EXISTENCE OF CERTAIN REQUIRED FACTS SO THAT WHEN SUCH PERMISSION IS GRANTED THROUGH ADMINISTRATIVE ERROR OR BECAUSE OF THE MEMBER'S MISREPRESENTATIONS. AN ENLISTED MEMBER OF THE UNIFORM SERVICES WHO WAS AUTHORIZED TO MESS SEPARATELY ON THE BASIS OF FALSE INFORMATION IN THAT HIS DEPENDENTS DID NOT RESIDE IN THE VICINITY OF HIS PERMANENT STATION. HAS RECEIVED SUBSISTENCE ALLOWANCE ON THE BASIS OF AN INVALID AUTHORIZATION TO MESS SEPARATELY WHEN RATIONS OR MESSING FACILITIES ARE OTHERWISE AVAILABLE AND. HE IS INDEBTED FOR THE SUBSISTENCE ALLOWANCE PAYMENTS: HOWEVER. SINCE HE IS ENTITLED TO BE SUBSISTED IN KIND AT GOVERNMENT EXPENSE.

B-145920, SEPTEMBER 21, 1961, 41 COMP. GEN. 206

SUBSISTENCE ALLOWANCE - AUTHORIZATION - FALSE INFORMATION, ETC. - EFFECT -- SUBSISTENCE ALLOWANCE - AUTHORIZATION - FALSE INFORMATION, ETC. - RATIONS IN KIND ENTITLEMENT--- SUBSISTENCE ALLOWANCE - AUTHORIZATION - FALSE INFORMATION, ETC. - EFFECT PERMISSION TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES TO MESS SEPARATELY MAY ONLY BE GRANTED UPON THE EXISTENCE OF CERTAIN REQUIRED FACTS SO THAT WHEN SUCH PERMISSION IS GRANTED THROUGH ADMINISTRATIVE ERROR OR BECAUSE OF THE MEMBER'S MISREPRESENTATIONS, IT MUST BE CONSIDERED AS VOID AND WITHOUT EFFECT TO AUTHORIZE PAYMENT OF THE SUBSISTENCE ALLOWANCE. AN ENLISTED MEMBER OF THE UNIFORM SERVICES WHO WAS AUTHORIZED TO MESS SEPARATELY ON THE BASIS OF FALSE INFORMATION IN THAT HIS DEPENDENTS DID NOT RESIDE IN THE VICINITY OF HIS PERMANENT STATION, AS ALLEGED, HAS RECEIVED SUBSISTENCE ALLOWANCE ON THE BASIS OF AN INVALID AUTHORIZATION TO MESS SEPARATELY WHEN RATIONS OR MESSING FACILITIES ARE OTHERWISE AVAILABLE AND, THEREFORE, HE IS INDEBTED FOR THE SUBSISTENCE ALLOWANCE PAYMENTS: HOWEVER, SINCE HE IS ENTITLED TO BE SUBSISTED IN KIND AT GOVERNMENT EXPENSE, THE INDEBTEDNESS MAY BE REDUCED BY THE AMOUNT OF THE COST OF MEALS PURCHASED IN A GOVERNMENT MESS DURING THE PERIOD THAT THE ERRONEOUS SUBSISTENCE ALLOWANCE PAYMENTS WERE RECEIVED. A DETERMINATION THAT THE PERMISSION GIVEN TO AN ENLISTED MEMBER TO MESS SEPARATELY WAS VOID BECAUSE IT WAS BASED ON A FALSE REPRESENTATION BY THE MEMBER WOULD BE NO JUSTIFICATION FOR THE DISBURSING OFFICER TO INVOKE THE FALSE CLAIMS FORFEITURE PROVISIONS OF 28 U.S.C. 2514, TO REFUSE THE MEMBER CREDIT FOR SUBSISTENCE ALLOWANCE IN THE CURRENT PAY ACCOUNT, SINCE THE INVALID AUTHORIZATION DID NOT CREATE ANY RIGHT IN THE ENLISTED MEMBER TO RECEIVE THE SUBSISTENCE ALLOWANCE, AND THE DISBURSING OFFICER WOULD NOT BE AUTHORIZED TO CREDIT THE MEMBER'S PAY ACCOUNT WITH THE ALLOWANCE IN ANY EVENT.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 21, 1961:

REFERENCE IS MADE TO LETTER OF MAY 19, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION AS TO WHETHER AN ENLISTED MEMBER MAY RETAIN AMOUNTS PREVIOUSLY PAID TO HIM FOR SUBSISTENCE ALLOWANCE AT THE RATE PRESCRIBED "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" WHERE IT IS SUBSEQUENTLY DETERMINED THAT THE AUTHORIZATION TO MESS SEPARATELY WAS OBTAINED BY PRESENTATION OF FALSE INFORMATION IN THAT THE DEPENDENTS DID NOT RESIDE IN THE VICINITY OF HIS PERMANENT DUTY STATION AS ALLEGED. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE NEGATIVE, THE ASSISTANT SECRETARY ASKS WHETHER THE ENLISTED MEMBER'S INDEBTEDNESS MAY BE REDUCED BY THE COST OF MEALS PURCHASED IN A GOVERNMENT MESS DURING THE PERIOD INVOLVED. IN THE EVENT A MEMBER'S CURRENT PAY RECORD HAS NOT BEEN CREDITED FOR SUBSISTENCE ALLOWANCE THE ASSISTANT SECRETARY FURTHER ASKS WHETHER THE CIRCUMSTANCES OUTLINED WOULD BE SUFFICIENT JUSTIFICATION FOR THE DISBURSING OFFICER TO REFUSE TO CREDIT SUCH ALLOWANCE TO THE MEMBER'S PAY RECORD UNDER THE FRAUDULENT CLAIMS STATUTE, 28 U.S.C. 2514. DISCUSSION OF THE QUESTION PRESENTED IS CONTAINED IN COMMITTEE ACTION NO. 283 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND IS, IN PART, AS FOLLOWS:

ONE SCHOOL OF THOUGHT IS PREMISED ON THE FACT THAT WHILE AN ENLISTED MEMBER IS IN A PAY STATUS, HE IS ENTITLED TO BE SUBSISTED BY THE GOVERNMENT, AS WELL AS BE FURNISHED QUARTERS AND CLOTHING. IF THESE BENEFITS ARE NOT FURNISHED IN KIND THEN THE ENLISTED MEMBER IS ENTITLED TO AN ALLOWANCE IN LIEU THEREOF. A REVIEW OF THE HEARINGS ON THE CAREER COMPENSATION ACT OF 1949, BEARS THIS OUT. IN THE DISCUSSION ON THE RATES PAYABLE FOR SUBSISTENCE, IT WAS DEFINITELY STATED THAT THE GOVERNMENT IS REQUIRED TO SUBSIST ENLISTED PERSONNEL AND THAT THE AMOUNT AUTHORIZED FOR PAYMENT WHEN PERMISSION TO MESS SEPARATELY IS GRANTED IS THE ACTUAL COST TO THE QUARTERMASTER TO PURCHASE THE FOOD. IT WAS FURTHER INDICATED THAT THE RIGHT TO MESS SEPARATELY IS MERELY A PRIVILEGE AND IS AUTHORIZED FOR THE CONVENIENCE OF THE ENLISTED MEMBER. BASED ON THIS MANNER OF THINKING, THE GOVERNMENT HAS NOT PAID TO THE INDIVIDUAL ANY MORE THAN IT WOULD HAVE SPENT HAD HE BEEN SUBSISTED IN A GOVERNMENT MESS. AN ACTUAL LOSS HAS NOT BEEN SUFFERED. FURTHER, THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, DOES NOT PROVIDE THAT CERTAIN CONDITIONS MUST EXIST BEFORE A MEMBER MAY BE AUTHORIZED TO MESS SEPARATELY. ANY CONDITIONS IMPOSED ARE DONE SO LOCALLY BY THE INDIVIDUAL HAVING AUTHORITY TO ISSUE ORDERS.

THE SECOND SCHOOL OF THOUGHT IS THAT THE FALSE REPRESENTATIONS VITIATED THE AUTHORIZATION TO MESS SEPARATELY. SINCE THE ORIGINAL ORDERS PLACING THE MEMBER ON SEPARATE RATIONS APPEAR TO BE INVALIDATED BY THE LATER FINDING THAT THEY WERE BASED ON FALSE INFORMATION, THE RIGHT TO RETAIN PAYMENTS OF SEPARATE RATIONS IS DOUBTFUL. IT IS CONTENDED THAT THE GOVERNMENT STOOD READY TO DISCHARGE ITS LEGAL RESPONSIBILITY TO SUBSIST THE MAN AND IN THE ABSENCE OF HIS ACTIONS WOULD HAVE DONE SO. HOWEVER, THE MAN DELIBERATELY DEPRIVED HIMSELF OF THIS BENEFIT WHEN HE ELECTED THROUGH FALSE INFORMATION TO GAIN PERMISSION TO MESS SEPARATELY. HIS FAILURE TO ACCEPT RATIONS IN KIND PLACED NO FURTHER RESPONSIBILITY ON THE GOVERNMENT. IN DENYING A CLAIM FOR SUBSISTENCE, THE COMPTROLLER GENERAL IN 8 COMP. GEN. 82 HELD THAT AN ALLOWANCE WAS NOT PAYABLE WHEN THE MAN COULD BE FURNISHED RATIONS--- AND WHETHER RATIONS WERE ACTUALLY RECEIVED WAS IMMATERIAL. IT CAN THEREFORE BE CONTENDED THAT THE FACT THE MEMBER DID NOT EAT IN THE MESS THE VALUE OF THE RATION, IS NOT MATERIAL AS AN ARGUMENT IN SUPPORT OF ALLOWING HIM TO RETAIN THE AMOUNT OF THE CASE (CASH) ALLOWANCE FOR SUBSISTENCE.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (37 U.S.C. 251), PROVIDES A BASIC ALLOWANCE FOR SUBSISTENCE AT VARYING DAILY RATES FOR ENLISTED MEMBERS (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. IT SEEMS CLEAR THAT UNDER THOSE PROVISIONS NO SUBSISTENCE ALLOWANCE ACCRUES IF RATIONS IN KIND OR MESSING FACILITIES ARE AVAILABLE UNLESS PERMISSION TO MESS SEPARATELY IS GRANTED. THE SECTION AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR ITS ADMINISTRATION AND SECTION 2 OF EXECUTIVE ORDER NO. 10119, MARCH 30, 1950, 15 F.R. 1767, AS AMENDED, 18 F.R. 2053, ISSUED PURSUANT TO THAT AUTHORITY, AUTHORIZES THE SECRETARIES CONCERNED TO PRESCRIBE NECESSARY SUPPLEMENTAL REGULATIONS TO GOVERN PAYMENT OF THE SUBSISTENCE ALLOWANCE. IF UNDER THE ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO SUCH AUTHORITY, PERMISSION TO MESS SEPARATELY MAY BE GRANTED ONLY UPON THE EXISTENCE OF CERTAIN FACTS, ANY SUCH PERMISSION NOT PREDICATED UPON THE REQUIRED FACTS MUST, IN OUR VIEW, BE CONSIDERED AS VOID AND WITHOUT EFFECT TO AUTHORIZE PAYMENT OF THE SUBSISTENCE ALLOWANCE. THE RESULT WOULD BE THE SAME REGARDLESS OF WHETHER THE PERMISSION IS GRANTED THROUGH ADMINISTRATIVE ERROR OR BECAUSE OF THE ENLISTED MEMBER'S MISREPRESENTATIONS. COMPARE 39 COMP. GEN. 614. THEREFORE, AN ENLISTED MEMBER WHO HAS BEEN PAID SUBSISTENCE ALLOWANCE ON THE BASIS OF AN INVALID AUTHORIZATION TO MESS SEPARATELY WHEN RATIONS OR MESSING FACILITIES ARE OTHERWISE AVAILABLE TO HIM HAS BEEN OVERPAID TO THE EXTENT OF THE SUBSISTENCE ALLOWANCE PAYMENT WHICH HE HAS RECEIVED AND IS INDEBTED TO THE GOVERNMENT IN THAT AMOUNT. YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

SINCE AN ENLISTED MEMBER IS ENTITLED TO BE SUBSISTED IN KIND AT GOVERNMENT EXPENSE, WE BELIEVE THAT AN ENLISTED MEMBER IN RECEIPT OF ERRONEOUS PAYMENTS OF SUBSISTENCE ALLOWANCE MAY HAVE HIS INDEBTEDNESS ON ACCOUNT OF SUCH ERRONEOUS PAYMENTS REDUCED BY THE AMOUNT OF THE COST OF MEALS PURCHASED IN A GOVERNMENT MESS WHILE HE IS RECEIVING THE ERRONEOUS ALLOWANCE PAYMENTS. YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO YOUR LAST QUESTION, 28 U.S.C. 2514, BY ITS OWN TERMS HAS REFERENCE TO CLAIMS FILED IN THE COURT OF CLAIMS OF THE UNITED STATES; IT HAS NO APPLICATION TO A CLAIM WHICH HAS BEEN SETTLED BY PAYMENT, AND IT DOES NOT AFFECT THE RECOVERY OF MONEYS PAID OUT AS A RESULT OF FRAUD. SEE BLUME V. UNITED STATES, 81 CT.1CL. 210; GLOBE INDEMNITY COMPANY V. UNITED STATES, 84 CT.1CL. 587; GROVO V. UNITED STATES, 100 CT.1CL. 368. THE FACT, HOWEVER, THAT THE FALSE CLAIMS STATUTE RELATES TO CLAIMS BEFORE THE COURT OF CLAIMS AND HAS NO DIRECT APPLICATION IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS DOES NOT MEAN THAT IT WOULD BE PROPER FOR A DISBURSING OFFICER TO PAY OR FOR THIS OFFICE TO ALLOW A CLAIM THOUGHT TO BE FRAUDULENT. IF FRAUD IS SUSPECTED THE CLAIM OBVIOUSLY IS OF DOUBTFUL VALIDITY AND WE BELIEVE THAT PROPERLY IN SUCH CASES THE CLAIMANT SHOULD BE LEFT TO HIS REMEDY IN THE COURT OF CLAIMS. SEE LONGWILL V. UNITED STATES, 17 CT.1CL. 288; CHARLES V. UNITED STATES, 19 CT.1CL. 316.

REGARDLESS OF THE APPLICABILITY OF 28 U.S.C. 2514, HOWEVER, THERE WOULD APPEAR TO BE NO NEED TO INVOKE ITS PROVISIONS TO DENY CREDIT OF SUBSISTENCE ALLOWANCE IN THE CIRCUMSTANCES PRESENTED. SINCE, AS POINTED OUT ABOVE, THE PERMISSION TO MESS SEPARATELY WAS VOID AND CREATED NO RIGHT TO SUBSISTENCE ALLOWANCE, THE DISBURSING OFFICER WOULD NOT BE AUTHORIZED TO CREDIT THE MEMBER'S PAY ACCOUNT WITH SUBSISTENCE ALLOWANCE IN ANY EVENT.