B-155386, JAN. 5, 1965

B-155386: Jan 5, 1965

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MCLAUGHLIN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT WHICH YOU BELIEVE YOU SHOULD HAVE RECEIVED AS BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY (RATIONS IN KIND NOT AVAILABLE) AND THE AMOUNTS WHICH YOU RECEIVED AS SEPARATE RATIONS FOR THE PERIOD MAY 27. WHILE YOU WERE ASSIGNED TO COMPANY A AND. WE HAVE RECEIVED YOUR LETTER OF NOVEMBER 22. THE RECORDS SHOWS THAT YOU WERE AUTHORIZED TO RATION SEPARATELY DURING THE PERIOD OF YOUR CLAIM AND THE FINANCE CENTER. HAS REPORTED THAT SEPARATE RATIONS WERE CREDITED ON YOUR MILITARY PAY VOUCHERS DURING THAT PERIOD. YOU THERE STATED THAT IN MARCH 1963 YOU WERE PLACED.

B-155386, JAN. 5, 1965

TO SERGEANT FIRST CLASS JOSEPH J. MCLAUGHLIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1964, WITH ENCLOSURE, AND TO YOUR LETTER OF NOVEMBER 16, 1964, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT OF SEPTEMBER 15, 1964, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT WHICH YOU BELIEVE YOU SHOULD HAVE RECEIVED AS BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY (RATIONS IN KIND NOT AVAILABLE) AND THE AMOUNTS WHICH YOU RECEIVED AS SEPARATE RATIONS FOR THE PERIOD MAY 27, 1963, THROUGH APRIL 28, 1964, WHILE YOU WERE ASSIGNED TO COMPANY A AND, LATER, TO COMPANY B, USA EDGEWOOD ARSENAL, EDGEWOOD ARSENAL, MARYLAND. ALSO, WE HAVE RECEIVED YOUR LETTER OF NOVEMBER 22, 1964, CONCERNING THE SAME MATTER.

THE RECORDS SHOWS THAT YOU WERE AUTHORIZED TO RATION SEPARATELY DURING THE PERIOD OF YOUR CLAIM AND THE FINANCE CENTER, U.S. ARMY, HAS REPORTED THAT SEPARATE RATIONS WERE CREDITED ON YOUR MILITARY PAY VOUCHERS DURING THAT PERIOD. ON DA FORM 1049, DATED AUGUST 19, 1963, ADDRESSED TO THE COMMANDING OFFICER, COMPANY "B" USA EDGEWOOD ARSENAL, EDGEWOOD ARSENAL, MARYLAND, YOU REFERRED TO THE PROVISIONS CONTAINED IN PARAGRAPH 4-21C OF ARMY REGULATIONS 37-104 AND REQUESTED THAT SPECIAL ORDERS NO. 10--- PERMITTING YOU TO RATION SEPARATELY--- BE AMENDED TO PERMIT PAYMENT ON A ,RATIONS IN KIND NOT AVAILABLE" BASIS EFFECTIVE MAY 27, 1963. YOU THERE STATED THAT IN MARCH 1963 YOU WERE PLACED, BY MEDICAL AUTHORITIES AT WALTER REED ARMY HOSPITAL, ON A 1500 CALORIE A DAY, FAT CONTROLLED DIET, FOR A MARGINAL DIABETIC CONDITION; THAT THE CONDITION FOR WHICH THE DIET WAS PRESCRIBED STILL EXISTED AS OF THE DATE OF YOUR REQUEST; AND THAT THE ACCOMPANYING CERTIFICATE WAS BASED UPON INFORMATION EXTRACTED FROM CLINICAL RECORDS OF WALTER REED ARMY HOSPITAL. IN SUCH CERTIFICATE, WHICH WAS DATED AUGUST 16, 1963, CAPTAIN JOHN W. PAYNE, MC, POST SURGEON, U.S. ARMY DISPENSARY, EDGEWOOD ARSENAL, MARYLAND, STATED AS FOLLOWS:

"SFC JOSEPH J. MCLAUGHLIN, RA 33979392, HAS BEEN DIAGNOSED AS HAVING DIABETES MELLITUS REQUIRING ONLY DIET FOR CONTROL. HE IS MAINTAINING HIMSELF ON A 1500 CALORIE LOW ANIMAL FAT ET.'

IN COMMENT NO. 3 (DATED OCTOBER 23, 1963) ON YOUR REQUEST, THE COMMANDING GENERAL, USA EDGEWOOD ARSENAL, EDGEWOOD ARSENAL, MARYLAND, ADVISED THE COMMANDING OFFICER, COMPANY B, USA EDGEWOOD ARSENAL, (1) THAT YOUR REQUEST WAS NOT CONSIDERED PROPER FOR PAYMENT,AND (2) THAT A RULING HAD BEEN RECEIVED BY THAT HEADQUARTERS THAT THE REGULATIONS WERE NOT INTENDED TO AUTHORIZE THE PAYMENTS OF SUBSISTENCE ALLOWANCES IN SUCH CIRCUMSTANCES. AFTER YOU HAD BEEN ADVISED OF SUCH ACTION, YOU FORWARDED YOUR CLAIM TO OUR OFFICE, REFERRING TO PROVISIONS OF ARMY REGULATIONS 35-104, AND EXPLAINING WHY, UNDER THOSE REGULATIONS, YOU BELIEVE YOU ARE ENTITLED TO THE CLAIMED ALLOWANCE ON THE GROUND THAT IT WAS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. IN CONNECTION WITH YOUR CLAIM, YOU STATED THAT THE ALLOWANCE FOR BASIC RATIONS "RATIONS IN KIND NOT AVAILABLE") WAS PAID TO SEVERAL ENLISTED INDIVIDUALS AT EDGEWOOD ARSENAL IN SIMILAR CIRCUMSTANCES THROUGH SEPTEMBER 30, 1963, AT WHICH TIME, BASED UPON LOCAL DETERMINATION, THAT ALLOWANCE WAS TERMINATED AND ORDERS CONCURRENTLY PUBLISHED AUTHORIZING THE INDIVIDUALS CONCERNED TO RATION SEPARATELY. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF SEPTEMBER 15, 1964, FOR THE REASON, IN SUBSTANCE, THAT YOU HAD FURNISHED NO EVIDENCE FROM THE PROPER OFFICIAL SOURCES SHOWING THAT RATIONS IN KIND WERE NOT AVAILABLE FOR YOU AT YOUR DUTY STATION.

THE APPLICABLE ARMY REGULATIONS IN EFFECT ON MAY 27, 1963, WERE CONTAINED IN CHAPTER 4, SECTION II, ARMY REGULATIONS 37-104. SUBPARAGRAPH A OF PARAGRAPH 4-21 OF SUCH REGULATIONS (CHANGE 51, DECEMBER 18, 1961) PROVIDED THAT THE TERM "RATIONS IN KIND" INCLUDED COOKED MEALS FURNISHED BY THE GOVERNMENT WHETHER OBTAINED BY CONTRACT OR OTHERWISE. SUBPARAGRAPH C OF THAT PARAGRAPH PROVIDED THAT THE TERM "WHEN RATIONS IN KIND ARE NOT AVAILABLE" WOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE IT WAS IMPRACTICABLE FOR SUBSISTENCE IN KIND, EVEN THOUGH AVAILABLE, TO BE FURNISHED BY THE GOVERNMENT. PARAGRAPH 4-23 (CHANGE 68, FEBRUARY 18, 1963) PROVIDED, GENERALLY, THAT AUTHORIZATION FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WAS REQUIRED BEFORE SUCH SUCH PAYMENT MIGHT BE MADE AND THAT SUCH AUTHORIZATION WOULD BE ISSUED CONTEMPORANEOUSLY AFTER DETERMINATION WAS MADE BY THE COMMANDING OFFICER THAT RATIONS IN KIND WERE NOT AVAILABLE OR THAT IT WAS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. SUBPARAGRAPH A OF PARAGRAPH 4-24 PROVIDED THAT FINAL ACTION ON AN APPLICATION FOR THE BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE TAKEN BY THE COMMANDER OF A POST, DIVISION, ARMY, CORPS, OR SIMILAR COMMANDER FOR TROOPS UNDER HIS COMMAND. SUBPARAGRAPH B OF THAT PARAGRAPH PROVIDED THAT THE RESPONSIBILITY FOR THE DETERMINATION THAT RATIONS IN KIND WERE NOT AVAILABLE FOR AN ENLISTED MEMBER AT HIS STATION RESTED UPON THE INSTALLATION COMMANDER. SUBSTANTIALLY IDENTICAL REGULATIONS WERE IN EFFECT DURING THE ENTIRE PERIOD COVERED BY YOUR CLAIM.

YOU FURNISHED WITH YOUR LETTER OF OCTOBER 4, 1964, A STATEMENT SIGNED BY MASTER SERGEANT JOHN H. BALCH, RM 33 065 445, WHICH READS AS FOLLOWS:

"I, THE UNDERSIGNED, IN MY FORMER CAPACITY OF FOOD SERVICE SUPERVISOR OF USA EDGEWOOD ARSENAL DURING PERIOD 27 MAY 63 THROUGH 28 APRIL 64, IN THE GRADE OF CWO, W-3, DO STATE THAT RATIONS IN KIND REQUIRED DUE TO EM'S MARGINAL DIABETIC CONDITION AND PRESCRIBED MEDICAL DIET, WERE NOT AVAILABLE TO SFC (E-7) JOSEPH J. MCLAUGHLIN RM 33 979 392, CO B, THAT STATION DURING THE PERIOD IN QUESTION.'

IN VIEW OF THE PROVISIONS CONTAINED IN ARMY REGULATIONS 37-104 AND THE FACT THAT YOUR REQUEST FOR THE ADDITIONAL SUBSISTENCE ALLOWANCE FOR THE PERIOD INVOLVED WAS DISAPPROVED BY THE COMMANDING GENERAL AT EDGEWOOD ARSENAL, WHO WAS THE OFFICIAL AUTHORIZED BY THOSE REGULATIONS TO DETERMINE WHETHER RATIONS IN KIND WERE AVAILABLE FOR AN ENLISTED MEMBER AT HIS STATION OR WHETHER IT WAS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM. THE BASIC LAW, 37 U.S.C. 402, CONTAINS NO PROVISION WHICH SUGGESTS THAT THE BASIC ALLOWANCE FOR SUBSISTENCE SHOULD BE PAID TO AN ENLISTED MAN WHO, FOR PERSONAL REASONS, FAILS TO USE AVAILABLE GOVERNMENT MESSING FACILITIES. THE STATUS OF SERGEANT BALCH WAS SUCH THAT HE WAS NOT AUTHORIZED TO MAKE ANY DETERMINATIONS UNDER THE CITED REGULATIONS. HIS STATEMENT, OF COURSE, FURNISHES NO LEGAL BASIS FOR THE PAYMENT OF SUCH ALLOWANCE TO YOU. LIKEWISE, EVEN IF SUBSISTENCE PAYMENTS AT THE RATE OF $2.57 PER DAY WERE MADE TO OTHER ENLISTED MEN IN THE CIRCUMSTANCES RELATED BY YOU, THAT FACT MAY NOT BE CONSIDERED AS ESTABLISHING AN AUTHORIZATION FOR A SIMILAR PAYMENT TO YOU.