B-151930, OCT. 8, 1965

B-151930, OCT. 8, 1965

TO SERGEANT MAJOR LESLIE L. D-ARBEAU, RA 32989917:

FURTHER REFERENCE IS MADE TO YOUR LETTER FO JULY 16, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL SUBSISTENCE ALLOWANCE FOR THE PERIOD OF JULY 1, 1963, TO NOVEMBER 7, 1964, INCIDENT TO YOUR DUTY ASSIGNMENT.

IT APPEARS FROM YOUR STATEMENTS THAT WHILE ASSIGNED TO HEADQUARTERS, FIRST U.S. ARMY RECRUITING DISTRICT, 39 WHITEHALL STREET, NEW YORK, NEW YORK, YOU RECEIVED A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY UNTIL JUNE 30, 1963, WHEN, UNDER THE AUTHORITY OF PARAGRAPH 1, SPECIAL ORDERS NO. 112, DATED JUNE 19, 1963, OF THAT ORGANIZATION, THE ALLOWANCE WAS TERMINATED. PARAGRAPH 4 OF THOSE ORDERS AUTHORIZED SEPARATE RATIONS EFFECTIVE JULY 1, 1963, AND, CONSEQUENTLY, FROM THAT DATE UNTIL THE DATE THE BASIC ALLOWANCE FOR SUBSISTANCE WAS REAUTHORIZED, NOVEMBER 8, 1964, YOU RECEIVED PAYMENT OF THE COMMUTED VALUE OF SEPARATE RATIONS AT THE RATE OF $1.03 AND $1.05 PER DAY PLUS ADDITIONAL AMOUNTS COVERING PAYMENTS AT PRESCRIBED RATES FOR CERTAIN MEALS MISSED BECAUSE OF YOUR DUTIES INTERFERED WITH THE USE OF AVAILABLE GOVERNMENT MESS. ON MARCH 17, 1965, YOU PRESENTED A CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FOR $546.60, STATED TO REPRESENT THE DIFFERENCE BETWEEN LISTED MONTHLY PAYMENTS MADE TO YOU AS THE COMMUTED VALUE OF SEPARATE RATIONS PLUS PAYMENT FOR CERTAIN MEALS YOU MISSED BECAUSE OF YOUR DUTY ASSIGNMENTS AND BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 A DAY FOR EACH MONTH OF THE PERIOD OF YOUR CLAIM. THE LOCAL COMMAND AUTHORITY DENIED YOUR CLAIM AND YOUR APPEAL THEREFROM, AS CONTAINED IN YOUR LETTER OF MAY 10, 1965, WAS TRANSMITTED BY THE FINANCE CENTER, U.S. ARMY, TO OUR CLAIMS DIVISION FOR CONSIDERATION. BY SETTLEMENT DATED JULY 14, 1965, THE CLAIMS DIVISION DISALLOWED THE CLAIM ON THE BASIS THAT PARAGRAPH 10403/A/4/A), ARMY REGULATIONS NO. 37-104, PROVIDED THAT EACH COMMANDER WILL DETERMINE WITHIN GUIDELINES WHETHER A GOVERNMENT MESS IS AVAILABLE AND, IF SO, THE PRACTICABILITY OF THE GOVERNMENT FURNISHING SUBSISTENCE IN KIND TO ENLISTED PERSONNEL ASSIGNED TO HIS COMMAND. YOU WERE ADVISED THAT THERE IS NO AUTHORITY FOR PAYMENT OF THE ADDITIONAL SUBSISTENCE ALLOWANCE IN THE ABSENCE OF A DETERMINATION UNDER THAT REGULATION OF YOUR ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY FOR THE PERIOD CLAIMED.

IN YOUR LETTER OF JULY 16, 1965, YOU STATE THAT PARAGRAPH 10403/A/4/A), ARMY REGULATIONS NO. 37-104, HAVING BEEN PUBLISHED IN 1965, IS NOT THE GOVERNING REGULATION, BUT RATHER PARAGRAPH 4-24, ARMY REGULATIONS NO. 37- 104, DATED JUNE 24, 1963, IS FOR APPLICATION. IN THIS CONNECTION, YOU SAY THAT THE WORDING IN THE 1965 REGULATIONS IS QUITE DIFFERENT AND YOU INVITE OUR ATTENTION TO PARAGRAPH 4, COMMENT NO. 4, IN YOUR LETTER OF MAY 10, 1965,TO THE EFFECT THAT FORT JAY, GOVERNORS ISLAND, NEW YORK, WAS DESIGNATED AS THE SUPPORT INSTALLATION FOR THE DETERMINATION AS TO WHETHER RATIONS AND QUARTERS WERE AVAILABLE FOR PERSONNEL OF YOUR ORGANIZATION AND THAT WHILE RATIONS WERE SAID TO BE AVAILABLE AT THAT STATION, IT DID NOT HAVE QUARTERS AVAILABLE FOR SUCH PERSONNEL. ACCORDINGLY, YOU CONTEND THAT THE BASIC ALLOWANCE FOR SUBSISTENCE SHOULD NOT HAVE BEEN TERMINATED ON JUNE 30, 1963, INASMUCH AS THE REQUIREMENTS OF PARAGRAPH 4-24A, ARMY REGULATIONS NO. 37-104, REGARDING AVAILABILITY FO SINGLE QUARTERS AND HOUSING FACILITIES COULD NOT BE MET BY FORT JAY.

THE PERTINENT STATUTE GOVERNING THE PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE, 37 U.S.C. 402, PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATES PRESCRIBED WHEN (1) RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; AND (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO MESSING FACILITIES OF THE UNITED STATES ARE AVAILABLE. PURSUANT TO SUCH AUTHORITY, EXECUTIVE ORDER NO. 10119 WAS PROMULGATED ON MARCH 27, 1950, AND PROVIDED 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 BY THE SECRETARIES THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. A SUBSTANTIALLY SIMILAR PROVISION IS CONTAINED IN THE SUPERSEDING EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964. PERTINENT ARMY REGULATIONS ARE CONTAINED IN/PARAGRAPH 4-24B, CHANGE 74, ARMY REGULATIONS NO. 37-104, DATED FEBRUARY 15, 1963, AND IN MATERIAL PART READ AS FOLLOWS:

"RATIONS IN KIND NOT AVAILABLE. THE RESPONSIBILITY FOR THE DETERMINATION THAT RATIONS IN KIND ARE NOT AVAILABLE FOR AN ENLISTED MEMBER AT HIS STATION RESTS UPON THE INSTALLATION COMMANDER. ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PRESCRIBED WHEN RATIONS IN KIND ARE NOT AVAILABLE IS NOT CONTINGENT ON THE LOCATION OF THE RESIDENCE WITH RELATION TO THE POINT OF DUTY. THE GOVERNING FACTOR IS THE LOCATION OF THE MEMBER'S POST OF DUTY WITH RELATION TO THE NEAREST GOVERNMENT MESSING FACILITY. * * *"

IN OUR DECISION OF APRIL 5, 1963, 42 COMP. GEN. 558, COPY ENCLOSED, WE HELD THAT DEPARTMENTAL REGULATIONS ISSUED TO IMPLEMENT THE STATUTE AND EXECUTIVE ORDER PROVIDE IN GENERAL THAT THE DETERMINATION OF IMPRACTICABILITY OF FURNISHING SUBSISTENCE IN KIND BY THE GOVERNMENT IS THE RESPONSIBILITY OF THE INSTALLATION COMMANDERS AND THAT IT IS CONTEMPLATED THAT THE DETERMINATION WILL BE MADE BY THE INSTALLATION COMMANDER ON THE BASIS OF THE EXISTING FACTS AND CIRCUMSTANCES, WHICH UNDER THE LAW AND REGULATIONS, REASONABLY JUSTIFY A CONCLUSION THAT THE FURNISHING OF SUBSISTENCE IN KIND BY THE GOVERNMENT IS IMPRACTICABLE. NEITHER THE STATUE NOR THE EXECUTIVE ORDER MAKES ANY PROVISION FOR BASING THE DETERMINATION ON THE AVAILABILITY OF GOVERNMENT QUARTERS. ON THE CONTRARY, THE DETERMINATION IS TO BE MADE ON THE BASIS OF THE AVAILABILITY OF GOVERNMENT MESSING FACILITIES IN RELATION TO THE MEMBER'S DUTY ASSIGNMENT AND THE PRACTICABILITY OF UTILIZING SUCH FACILITIES IN THE CIRCUMSTANCES INVOLVED.

THE INSTALLATION COMMANDER, THE COMMANDING OFFICER OF FORT JAY IN YOUR CASE, MADE A DETERMINATION, YOU SAY, UNDER THE ABOVE LAW AND REGULATIONS, THAT RATIONS IN KIND AT FORT JAY WERE AVAILABLE TO ENLISTED MEMBERS ASSIGNED TO DUTY AT 39 WHITEHALL STREET, NEW YORK, NEW YORK. SINCE DETERMINATION WAS MADE BY PROPER AUTHORITY ACTING UNDER THE CONTROLLING LAW AND REGULATIONS THAT RATIONS IN KIND WERE AVAILABLE TO YOU DURING THE PERIOD INVOLVED AND SINCE AN AUTHORIZATION FOR THE PAYMENT TO YOU OF THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY DURING THE PERIOD COVERED BY YOUR CLAIM WAS NOT GRANTED ON THE BASIS THAT RATIONS IN KIND WERE NOT AVAILABLE, NO LEGAL BASIS EXISTS FOR ALLOWANCE OF THE AMOUNT CLAIMED AS THE DIFFERENCE DUE YOU.

CONSEQUENTLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JULY 14, 1965, WAS CORRECT AND, THEREFORE, MUST BE SUSTAINED.