B-147787, FEB. 13, 1962

B-147787, FEB. 13, 1962

TO CHARLES J. BARAT, T/SGT., AF 35577252:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 22, 1961, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 3, 1960, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN BASIC ALLOWANCE IN LIEU OF SUBSISTENCE, AT THE RATE OF $2.57 PER DAY, AND THE AMOUNTS RECEIVED AS SEPARATE RATIONS FOR THE PERIOD FROM MARCH 25, 1955, THROUGH DECEMBER 19, 1957, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES AIR FORCE. YOUR CLAIM WAS DISALLOWED FOR THE REASON, IN SUBSTANCE, THAT YOU HAD FAILED TO ESTABLISH THAT PROPER DETERMINATIONS HAD BEEN MADE BY COMPETENT AUTHORITY FOR THE ADDITIONAL PAYMENTS.

IN SUPPORT OF YOUR CLAIM, YOU HAVE SUBMITTED (1) A COPY OF LETTER ORDER N -57-445, HEADQUARTERS, CENTRAL AIR MATERIEL AREA, EUROPE (AMC), UNITED STATES AIR FORCE, DATED JULY 8, 1957, AUTHORIZING YOU TO PROCEED FROM "BOAC LTD, TREFOREST, WALES, TO BURTONWOOD RAF STA. NR. WARRINGTON, LANCS, ENGLAND," FOR TEMPORARY DUTY OF APPROXIMATELY 3 DAYS, IN WHICH IT IS STATED THAT A GOVERNMENT MESS WAS NOT AVAILABLE AT YOUR PERMANENT DUTY STATION, AND (2) A COPY OF A MILITARY PAY RECORD, DD FORM 113, EVIDENCING AUTHORITY FOR BASIC ALLOWANCE IN LIEU OF SUBSISTENCE, AT THE RATE OF $2.57 PER DAY, GOVERNMENT MESSING FACILITIES NOT BEING AVAILABLE TO YOU AT YOUR PERMANENT DUTY STATION, FROM DECEMBER 20, 1957. IN ADDITION, THERE IS ON FILE A CERTIFICATE BY THE DEPUTY CHIEF, LONDON AIR LOGISTIC OFFICE, DATED DECEMBER 3, 1958, TO THE EFFECT THAT GOVERNMENT MESSING FACILITIES WERE NOT AVAILABLE TO YOU AT YOUR PERMANENT DUTY STATION IN SOUTH WALES, A SUBSIDIARY OF THE LONDON OFFICE,"FOR THE PERIOD 1 FEBRUARY 1957 THRU 1 JANUARY 1958.'

SECTION 301 OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 251, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PRESCRIBED WHEN RATIONS IN KIND ARE NOT AVAILABLE. A LESSER RATE IS PRESCRIBED FOR ENLISTED MEN GRANTED PERMISSION TO MESS SEPARATELY. SECTION 301 (D) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SECTION 3 (B) OF EXECUTIVE ORDER NO. 10199, DATED MARCH 27, 1950, PROVIDES 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 DETERMINED IN ACCORDANCE WITH REGULATIONS PRESCRIBED PURSUANT TO SECTION 2 THEREOF THAT "IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.' SECTION 2 PROVIDES THAT THE DEPARTMENT CONCERNED MAY ISSUE APPROPRIATE REGULATIONS.

APPLICABLE AIR FORCE REGULATIONS CONTAINED IN PARAGRAPH 20101-D, AIR FORCE MANUAL 173-20, PROVIDE THAT AIRMEN ARE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE. PARAGRAPH 20104-B (1) (A) OF THE MANUAL PROVIDES THAT AIRMEN ARE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE WHEN RATIONS IN KIND ARE NOT AVAILABLE, INCLUDING THOSE CIRCUMSTANCES WHERE IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT, EVEN THOUGH AVAILABLE. IT IS FURTHER PROVIDED THAT THE INSTALLATION COMMANDER CONCERNED IS RESPONSIBLE FOR DETERMINING THAT RATIONS IN KIND ARE NOT AVAILABLE.

IT IS CLEAR THAT THE FOREGOING STATUTE AND REGULATIONS AUTHORIZE THE PAYMENT TO ENLISTED MEMBERS OF THE AIR FORCE OF A BASIC ALLOWANCE FOR SUBSISTENCE, AT THE RATE OF $2.57 PER DAY ONLY WHEN RATIONS IN KIND ARE NOT AVAILABLE OR IT IS PROPERLY DETERMINED BY THE INSTALLATION COMMAND THAT IT IS IMPRACTICABLE FOR THE GOVERNMENT TO FURNISH SUBSISTENCE IN KIND. IT APPEARS THAT IT NOW MAY BE HELD THAT RATIONS IN KIND WERE NOT AVAILABLE TO YOU FROM THE DATE OF YOUR REPORTING FOR DUTY AT TREFOREST, WALES, UNDER SPECIAL ORDERS NO. 34, DATED FEBRUARY 18, 1957, AND A SETTLEMENT WILL BE ISSUED FOR THE AMOUNT FOUND DUE FOR THAT PORTION OF THIS PERIOD FOR WHICH ENTITLEMENT OTHERWISE EXISTS. HOWEVER, THE INFORMATION FURNISHED DOES NOT INCLUDE A PROPER ADMINISTRATIVE DETERMINATION FOR ANY ADDITIONAL PERIOD. ACCORDINGLY, THE DISALLOWANCE OF THAT PORTION OF YOUR CLAIM IS SUSTAINED.