B-149967, NOV. 28, 1962

B-149967: Nov 28, 1962

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SIMON: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12. STATED THAT THE ORIGINAL NONPAYMENT OF SUCH ALLOWANCE IN YOUR CASE TO A LARGE EXTENT WAS DUE TO AN ADMINISTRATIVE ERROR ON THE PART OF THE COMMAND AND NOT TO NEGLIGENCE ON YOUR PART. YOU WERE MARRIED ON MAY 6. COMMENCING FROM THAT DATE YOU HAVE RESIDED IN CIVILIAN OFF-STATION HOUSING. APPARENTLY ERRONEOUSLY UNDERSTANDING AT THAT TIME THAT NO FURTHER ACTION WAS REQUIRED TO INITIATE THE PAYMENT OF COMMUTED RATIONS. AS A RESULT YOU WERE NOT PAID COMMUTED RATIONS FROM MAY 6. THAT YOU HAD ASCERTAINED THAT YOU WERE NOT BEING PAID COMMUTED RATIONS AND CLAIMING PAYMENT THEREFOR FROM MAY 6. WAS REFERRED TO OUR CLAIMS DIVISION AND BY SETTLEMENT DATED AUGUST 3.

B-149967, NOV. 28, 1962

TO MR. CHARLES R. SIMON:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1962, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD MAY 6, 1961, THROUGH MARCH 21, 1962, INCIDENT TO YOUR SERVICE AS AE3, UNITED STATES NAVY, AND TO YOUR LETTER OF OCTOBER 18, 1962, ADVISING THAT THE COMMANDING OFFICER, ATTACK SQUADRON FORTY-FOUR, UNITED STATES NAVAL AIR STATION, JACKSONVILLE, FLORIDA, IN FIRST ENDORSEMENT OF SEPTEMBER 12, 1962, ON YOUR LETTER OF SEPTEMBER 12, 1962, STATED THAT THE ORIGINAL NONPAYMENT OF SUCH ALLOWANCE IN YOUR CASE TO A LARGE EXTENT WAS DUE TO AN ADMINISTRATIVE ERROR ON THE PART OF THE COMMAND AND NOT TO NEGLIGENCE ON YOUR PART.

THE RECORD SHOWS THAT WHILE ON DUTY WITH ATTACK SQUADRON FORTY-FOUR, YOU WERE MARRIED ON MAY 6, 1961, AND COMMENCING FROM THAT DATE YOU HAVE RESIDED IN CIVILIAN OFF-STATION HOUSING. ON MAY 17, 1961, YOU NOTIFIED THE SQUADRON PERSONNEL OFFICE OF YOUR MARITAL STATUS AND SUBMITTED AN ,APPLICATION FOR DEPENDENTS ALLOWANCE" (NAVPERS 668, REV. 2-51) AND AN "APPLICATION FOR UNIFORMED SERVICES IDENTIFICATION AND PRIVILEGES CARD" (DD FORM 1172) AND TURNED IN YOUR MESS PASS. APPARENTLY ERRONEOUSLY UNDERSTANDING AT THAT TIME THAT NO FURTHER ACTION WAS REQUIRED TO INITIATE THE PAYMENT OF COMMUTED RATIONS, YOU FAILED TO APPLY FOR OR SUBMIT A "COMMUTED RATIONS PAYMENT REQUEST" (NAV S AND A FORM 1105). AS A RESULT YOU WERE NOT PAID COMMUTED RATIONS FROM MAY 6, 1961, UNTIL MARCH 21, 1962, WHEN YOU ADDRESSED A LETTER TO THE CHIEF OF NAVAL PERSONNEL, WASHINGTON, D.C., ADVISING, AMONG OTHER THINGS, THAT YOU HAD ASCERTAINED THAT YOU WERE NOT BEING PAID COMMUTED RATIONS AND CLAIMING PAYMENT THEREFOR FROM MAY 6, 1961. ON THE BASIS OF THAT LETTER PAYMENT OF COMMUTED RATIONS TO YOU COMMENCED AS OF MARCH 21, 1962. THE CLAIM COVERING THE PERIOD PRIOR TO MARCH 21, 1962, WAS REFERRED TO OUR CLAIMS DIVISION AND BY SETTLEMENT DATED AUGUST 3, 1962, THAT CLAIM WAS DISALLOWED FOR THE REASON THAT PAYMENT FOR THE COMMUTED RATIONS COULD NOT BE MADE IN THE ABSENCE OF ORDERS ISSUED PRIOR TO OR CONTEMPORANEOUSLY WITH THE PERIOD CLAIMED AUTHORIZING YOU TO RATION SEPARATELY OR OTHER PROPERLY AUTHENTICATED EVIDENCE SHOWING THAT SUCH PERMISSION WAS GRANTED.

THE COMMANDING OFFICER OF ATTACK SQUADRON FORTY-FOUR IN A LETTER OF AUGUST 23, 1962, IN SUPPORT OF A REQUEST FOR RECONSIDERATION OF YOUR CLAIM, HAS EXPRESSED THE VIEW THAT THE NONPAYMENT OF THE COMMUTED RATIONS IN YOUR CASE WAS DUE TO AN ADMINISTRATIVE ERROR ON THE PART OF THE SQUADRON PERSONNEL OFFICE IN THAT YOU WERE NOT REQUIRED TO COMPLETE ALL THE FORMS NECESSARY WHEN A MEMBER CHANGES HIS MARITAL STATUS AND THAT SUCH NONPAYMENT WAS OVERLOOKED DURING THE ANNUAL VERIFICATION OF ENLISTED PERSONNEL SERVICE, PAY, AND HEALTH RECORDS. HE POINTED OUT IN THAT LETTER THAT PERMISSION TO MESS SEPARATELY WAS GRANTED TO YOU EFFECTIVE MAY 6, 1961 (APPARENTLY RETROACTIVE TO MAY 6, 1961).

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 21, 1949, CH. 681, 63 STAT. 251, AS AMENDED, 37 U.S.C. 251, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE ,WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 3 (C) OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301, STATES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBMIT THEMSELVES INDEPENDENTLY. ALSO, SUBPARAGRAPH A-4404 (6) (C) OF BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT DURING THE INVOLVED PERIOD, PROVIDES AS FOLLOWS:

"THE CREDIT OF COMMUTED RATIONS WILL COMMENCE ON THE DATE AND HOUR FROM WHICH THE MEMBER'S REQUEST IS APPROVED. 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.'

IT IS CLEAR THAT UNDER THE ABOVE LAW AND IMPLEMENTING REGULATIONS THAT THE SEPARATE RATION ALLOWANCE IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED MEMBER WAS IN FACT AUTHORIZED TO MESS SEPARATELY BY PROPER AUTHORITY PRIOR TO THE PERIOD INVOLVED. WHILE YOUR REQUEST OF MARCH 21, 1962, FOR PAYMENT OF COMMUTED RATIONS FROM MAY 6, 1961, WAS APPROVED SOMETIME IN APRIL 1962 BY YOUR SQUADRON COMMANDER AND YOUR ENTITLEMENT TO SUCH RATIONS WAS THEN ESTABLISHED EFFECTIVE MARCH 21, 1962, SUCH APPROVAL IS INEFFECTIVE TO RETROACTIVELY ESTABLISH YOUR ENTITLEMENT FOR THE INTERIM PERIOD COMMENCING MAY 6, 1961. WE HAVE HELD, GENERALLY, THAT RETROACTIVE WRITTEN ORDERS OR OTHER AUTHORITY MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED, BUT ONLY IF IT IS SHOWN THAT SUCH WRITTEN ORDERS WERE ISSUED IN CONFIRMATION OF SPECIFIC VERBAL ORDERS ISSUED AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, AND ONLY IF THEY WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF THE VERBAL ORDERS.

IT IS OUR PRACTICE TO RECOGNIZE SUCH RETROACTIVE WRITTEN ORDERS ONLY WHERE THERE HAS BEEN A FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE VERBAL ORDERS; IN OTHER WORDS, THERE MUST BE EVIDENCE OTHER THAN BELATED CONFIRMATORY ORDERS THEMSELVES TO ESTABLISH THAT VERBAL ORDERS WERE ACTUALLY ISSUED. SINCE THERE IS NO SHOWING IN THE PRESENT RECORD THAT YOU WERE GRANTED AUTHORITY TO MESS SEPARATELY PRIOR TO THE PERIOD OF YOUR CLAIM, YOU HAVE NOT MET THE REQUIREMENTS OF THE CITED LAW AND REGULATIONS AND, THEREFORE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

REGARDING THE CONTENTION THAT THE NONPAYMENT TO YOU OF THE COMMUTED RATIONS FOR THE INVOLVED PERIOD WAS THE RESULT OF AN ADMINISTRATIVE ERROR, YOU ARE ADVISED THAT EVEN IF WE WERE TO CONCLUDE THAT THE ACTION OR INACTION ON THE PART OF THE SQUADRON PERSONNEL OFFICE CONSTITUTED AN ADMINISTRATIVE ERROR, SUCH CONCLUSION WOULD NOT FURNISH A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 3, 1962, WAS CORRECT AND IS SUSTAINED.