B-153612, MAY 21, 1964

B-153612, MAY 21, 1964

TO MAJOR HAROLD T. SMITH, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE RATE OF BASIC ALLOWANCE FOR SUBSISTENCE, SEPARATE RATIONS, RECEIVED BY YOU AND THE RATE TO WHICH YOU BELIEVE YOU ARE ENTITLED BASED ON NONAVAILABILITY OF RATIONS FOR THE PERIOD JULY 8, 1961, TO MARCH 31, 1963. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OCTOBER 29, 1963, ON THE GROUND THAT PROPER AUTHORIZATION WAS NOT ISSUED CONTEMPORANEOUSLY WITH THE PERIOD COVERED BY YOUR CLAIM. YOU NOW REQUEST PAYMENT BASED ON PARAGRAPH 20, SPECIAL ORDERS NO. 13 ISSUED BY HEADQUARTERS, UNITED STATES ARMY GARRISON, FORT SHAFTER, HAWAII, UNDER DATE OF JANUARY 20, 1964.

PAYMENT OF SUBSISTENCE ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY 37 U.S.C. 402 AND REGULATIONS PROMULGATED PURSUANT THERETO. PARAGRAPH 4-26, AR 37-104, DATED JUNE 24, 1963, PROVIDES THAT NORMALLY ENLISTED MEN WILL BE SUBSISTED IN KIND, THAT GOVERNMENT MESSES WHEN AVAILABLE WITHIN THE AREA WILL BE USED TO THE FULLEST EXTENT COMPATIBLE WITH ECONOMY AND EFFICIENCY AND THAT A CASH ALLOWANCE WILL BE AUTHORIZED SOLELY IN THE INTEREST OF THE ECONOMY OF THE GOVERNMENT AND NOT TO PROVIDE ADDITIONAL COMPENSATION TO THE MEMBER CONCERNED. SIMILAR PROVISIONS APPEAR IN THE REGULATIONS APPLICABLE DURING THE ENTIRE PERIOD COVERED BY YOUR CLAIM. PARAGRAPH 4-23, AR 37-104, REQUIRES THAT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WHERE RATIONS IN KIND ARE NOT AVAILABLE BE SUPPORTED BY AN AUTHORIZATION ISSUED CONTEMPORANEOUSLY AFTER DETERMINATION BY THE COMMANDING OFFICER THAT RATIONS IN KIND ARE NOT AVAILABLE OR THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.

THE EXTRACT COPY OF PARAGRAPH 20, SPECIAL ORDERS NO. 13 WHICH WAS ENCLOSED WITH YOUR CLAIM PURPORTS TO CONFIRM VERBAL ORDERS ISSUED TO YOU UNDER DATES OF JULY 8, 1961, JANUARY 1, 1962, AND JANUARY 1, 1963, AUTHORIZING PAYMENT OF THE DIFFERENCE BETWEEN $2.57 PER DAY, THE RATE APPLICABLE WHERE RATIONS IN KIND ARE NOT AVAILABLE, AND THE DAILY RATES OF SEPARATE RATIONS ACTUALLY RECEIVED BY YOU, OR $1.47, $1.37 AND $1.42, RESPECTIVELY. THE DATES OF THE VERBAL ORDERS COINCIDE EXACTLY WITH THE EFFECTIVE DATES OF CHANGES IN RATE OF SEPARATE RATIONS. NO REASON WAS GIVEN FOR THE EXCESSIVE DELAYS IN CONFIRMING THESE VERBAL ORDERS.

WE HAVE ACCEPTED VERBAL ORDERS AS AUTHORITY FOR PAYMENT IN INCREASED ALLOWANCES IF CONFIRMED IN WRITING WITHIN A REASONABLE TIME AFTER ISSUANCE. IN VIEW OF THE LENGTH OF TIME WHICH ELAPSED IN THIS CASE, HOWEVER, AFTER EACH OF THE PURPORTED VERBAL ORDERS WAS ISSUED BEFORE CONFIRMATION THEREOF AND THE FACT THAT THE "CONFIRMING" ORDER, ISSUED AFTER YOUR CLAIM HAD BEEN DISALLOWED BY OUR CLAIMS DIVISION, CONTAINS NO EXPLANATION OF THE FACTS OR CIRCUMSTANCES WHICH PREVENTED A PROMPT CONFIRMATION, SUCH VERBAL ORDERS MAY NOT BE ACCEPTED AS AUTHORITY FOR PAYMENT OF THE INCREASED RATE OF SUBSISTENCE ALLOWANCE.

YOUR ORIGINAL CLAIM WAS ACCOMPANIED BY A STATEMENT FROM YOUR COMMANDING OFFICER, MAJOR DAVID CHUNG, DATED JUNE 13, 1963, IN WHICH HE EXPLAINED THAT YOU HAD NOT PREVIOUSLY APPLIED FOR SUBSISTENCE ALLOWANCE AT THE $2.57 RATE FOR THE PERIOD JULY 8, 1961, TO APRIL 1, 1963, BECAUSE OF THE UNSUCCESSFUL ATTEMPTS OF OTHER ENLISTED MEN OF YOUR SECTION TO OBTAIN AN AUTHORIZATION FOR PAYMENT AT THAT RATE. YOU DECIDED, HOWEVER, TO ATTEMPT TO COLLECT RETROACTIVE PAYMENT OF THE HIGHER RATE OF SUBSISTENCE ALLOWANCE PRIOR TO YOUR RETIREMENT FROM THE SERVICE IN OCTOBER 1963. ALTHOUGH THE ORDERS OF JANUARY 20, 1964, ARE WORDED AS CONFIRMING VERBAL ORDERS, IT IS NOT UNDERSTOOD HOW SUCH VERBAL ORDERS COULD HAVE BEEN GIVEN SINCE YOU MADE NO REQUEST FOR PAYMENT AT THE HIGHER RATE PRIOR TO THE DATES OF THE PURPORTED VERBAL ORDERS. IT APPEARS THAT THE ORDERS OF JANUARY 20, 1964, ACTUALLY WERE WRITTEN AND INTENDED AS A RETROACTIVE AUTHORIZATION FOR PAYMENT OF THE HIGHER RATE OF ALLOWANCE FOR THE PERIOD JULY 8, 1961, TO MARCH 31, 1963. SUCH RETROACTIVE AUTHORIZATION DOES NOT MEET THE REQUIREMENTS OF THE REGULATIONS CITED ABOVE, PARAGRAPH 4-23 OF AR 37-104. PARAGRAPH 4-27D, OF SUCH REGULATIONS IS CITED IN THE ORDERS OF JANUARY 20, 1964, AS AUTHORITY FOR RETROACTIVE AUTHORIZATION. THIS PARAGRAPH, WHICH FIRST APPEARED IN ITS PRESENT FORM IN CHANGE 53, DATED JANUARY 26, 1962, PROVIDES THAT AN ENLISTED MEMBER WHO HAS BEEN GRANTED PERMISSION TO MESS SEPARATELY MAY BE PAID AN ADDITIONAL AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE 1/3 SHARE OF SEPARATE RATIONS AND THE PRORATED SHARE OF THE $2.57 RATE AUTHORIZED WHEN RATIONS IN KIND ARE NOT AVAILABLE WHEN HIS ASSIGNED DUTY REQUIRES HIM TO PURCHASE ONE OR MORE MEALS FROM OTHER THAN A GOVERNMENT MESS. THE STATEMENT FURNISHED BY MAJOR CHUNG SHOWING THE MEALS PURCHASED BY YOU--- APPARENTLY AT A GOVERNMENT MESS--- BETWEEN JANUARY 16, 1962, AND MARCH 29, 1963, AS INDICATED BY CASH COLLECTION VOUCHERS MAINTAINED BY THE QUARTERMASTER OFFICE, FORT SHAFTER, DOES NOT ESTABLISH WHICH MEALS, IF ANY, YOUR ASSIGNED DUTY REQUIRED YOU TO PURCHASE FROM OTHER THAN A GOVERNMENT MESS.