B-154008, OCT. 6, 1964

B-154008, OCT. 6, 1964

TO STAFF SERGEANT MANUEL MUNIZ, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO MR. STUART A. SORENSON'S LETTER OF AUGUST 20, 1964 (WHICH WAS ACKNOWLEDGED BY OUR LETTER OF AUGUST 31,1964, TO YOU), IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 31, 1964, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD FROM JUNE 24, 1960, TO JUNE 30, 1963, WHILE YOU WERE SERVING AS A MEMBER OF 11TH AIR REFUELING SQUADRON (SAC), DOVER AIR FORCE BASE, DELAWARE. MR. SORENSON SAYS THAT OFFICERS OF THE AIR FORCE HAVE "ISSUED SPECIAL ORDERS CONFIRMING THE FACT THAT THE SERVICEMAN WAS AUTHORIZED SEPARATE RATIONS AND THAT THE ORDERS WERE LOST IN TRANSIT.' SUCH BASIS, HE SAYS THAT IT IS UNFAIR TO PENALIZE YOU FOR WHAT HE CONSIDERS TO BE THE FAULT OF YOUR SUPERIOR OFFICERS.

THERE IS IN YOUR CLAIM FILE A COPY OF YOUR APPLICATION TO RATION SEPARATELY (EASTAF FORM 148) DATED JUNE 24, 1960, AND IT IS SHOWN ON SUCH APPLICATION THAT IT WAS TO BE FORWARDED THROUGH THE COMMANDER, 11TH AIR REFUELING SQUADRON (SAC), TO THE COMMANDER, 1607 AIR BASE GROUP, WHO WAS EVIDENTLY THE "INSTALLATION COMMANDER" AT DOVER AIR FORCE BASE. IT IS STATED THAT ALTHOUGH THE ORIGINAL APPLICATION WAS APPROVED ON JUNE 24, 1960, BY CAPTAIN JOEL KIEM, USAF, PERSONNEL OFFICER, ACTING FOR THE SQUADRON COMMANDER, IT WAS THEREAFTER LOST IN TRANSIT--- APPARENTLY TO THE COMMANDING OFFICER OF DOVER AIR FORCE BASE--- AND THAT ORDERS WERE NEVER PUBLISHED. IN EXPLAINING WHY IT WAS NOT UNTIL MARCH 26, 1963, THAT YOU BECAME AWARE THAT YOU WERE NOT BEING CREDITED WITH SEPARATE RATIONS, IT IS STATED THAT YOU WERE RECEIVING FLIGHT PAY AND THAT YOUR PAY VARIED EACH PAYDAY.

THERE HAS BEEN FURNISHED IN SUPPORT OF YOUR CLAIM A COPY OF SPECIAL ORDER M-12 OF 11TH AIR REFUELING SQUADRON (SAC), UNITED STATES AIR FORCE, DOVER AIR FORCE BASE, DELAWARE, DATED JULY 24, 1963, WHICH READS AS FOLLOWS:

"THE VERBAL ORDER OF THE COMMANDER ON 24 JUNE 1960 AUTHORIZING SSGT MANUEL MUNIZ, AF19003493, TO RATION SEPARATELY, EFFECTIVE 24 JUNE 1960 IS CONFIRMED. ESTAF FORM 148, APPLICATION FOR SEPARATE RATIONS AND/OR OFF BASE RESIDENCE, WAS FILLED OUT, SIGNED BY SGT MUNIZ AND APPROVED BY CAPTAIN JOEL KLEM, 11TH AIR REFUELING SQUADRON, PERSONNEL OFFICER, ACTING FOR THE SQUADRON COMMANDER ON 24 JUNE 1960. THE ORIGINAL OF THIS FORM, WHICH IS ALSO A REQUEST FOR ORDERS, WAS LOST IN TRANSIT AND ORDERS NEVER PUBLISHED. THESE ORDERS ARE ONLY TO CONFIRM THE EXPRESSED INTENT OF 24 JUNE 1960 AND REGULARIZE A SITUATION OF RATIONING SEPARATELY THAT HAS IN FACT EXISTED SINCE THAT DATE.'

SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (A) (1958 ED.), AUTHORIZED THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 2 OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SAID SECTION 301, PROVIDED GENERALLY THAT THE SECRETARY OF THE SERVICE CONCERNED WAS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT THEREWITH, AS HE MIGHT DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THAT ORDER AND OF SECTION 301 OF THE ACT. UNDER THE PROVISIONS OF PARAGRAPH 20104B (1) (B) OF AIR FORCE MANUAL 173-20, IN EFFECT ON JUNE 24, 1960, AIRMEN WERE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE INSTALLATION COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20108 PROVIDED THAT AFTER AUTHORIZATION WAS GRANTED FOR AN AIRMAN TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS, A MILITARY PAY ORDER (DD FORM 114) AUTHORIZING PAYMENT WOULD BE ISSUED.

EFFECTIVE JULY 1, 1960, THE CITED REGULATIONS WERE SUPERSEDED BY THOSE CONTAINED IN AIR FORCE MANUAL 177-105. PARAGRAPH 20404B (1) (B) OF THAT MANUAL CONTAINED PROVISIONS IDENTICAL WITH THOSE CONTAINED IN PARAGRAPH 20104B (1) (B) OF AIR FORCE MANUAL 173-20, EXCEPT THAT THE "INSTALLATION COMMANDER" WAS DESCRIBED AS THE "BASE COMMANDER.' IN PARAGRAPH 20404B (1) (B), CHANGE 10, SEPTEMBER 1, 1961, OF AIR FORCE MANUAL 177-105, IT WAS PROVIDED THAT AIRMEN WERE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED TO RATION SEPARATELY NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS; THAT SUCH AUTHORIZATION TO RATION SEPARATELY MIGHT BE CERTIFIED BY THE COMMANDER OF A MAJOR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING OR OTHER COMPARABLE COMMAND; AND THAT AUTHORITY TO APPROVE REQUESTS TO RATION SEPARATELY MIGHT BE DELEGATED TO SQUADRON COMMANDERS PROVIDED STANDARD CRITERIA FOR APPROVAL OF REQUESTS WERE ESTABLISHED THROUGHOUT THE BASE OR COMMAND. SUCH PROVISIONS WERE EFFECTIVE SEPTEMBER 1, 1961, AND WERE NOT RETROACTIVE.

THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE SHOWING THAT THE REQUEST TO RATION SEPARATELY MADE BY YOU ON JUNE 24, 1960, WAS APPROVED BY THE INSTALLATION COMMANDER OF DOVER AIR FORCE BASE OR BY HIS DESIGNATED REPRESENTATIVE, NOR IS THERE ANY SHOWING THAT THE INSTALLATION COMMANDER EVER ISSUED ANY ORDERS, EITHER VERBAL OR WRITTEN, AUTHORIZING YOU TO RATION SEPARATELY EFFECTIVE JUNE 24, 1960. SINCE YOUR SQUADRON COMMANDER DID NOT AT THAT TIME HAVE AUTHORITY TO AUTHORIZE YOU TO RATION SEPARATELY, HIS ORDER OF JULY 24, 1963, PURPORTING TO CONFIRM THE "VERBAL ORDER OF THE COMMANDER ON 24 JUNE 1960," MAY NOT BE CONSIDERED AS ESTABLISHING THAT YOU WERE AUTHORIZED TO SUBSIST YOURSELF INDEPENDENTLY EFFECTIVE JUNE 24, 1960. IT IS EVIDENT THAT THE "COMMANDER" MENTIONED COULD NOT HAVE BEEN THE COMMANDING OFFICER OF DOVER AIR FORCE BASE, SINCE THAT OFFICER WAS NOT AWARE ON JUNE 24, 1960, THAT YOU HAD APPLIED FOR PERMISSION TO MESS SEPARATELY.

ACCORDINGLY, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM AND THE SETTLEMENT OF AUGUST 4, 1964, IS SUSTAINED.