B-155528, JAN. 12, 1965

B-155528: Jan 12, 1965

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LAYTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23. IT IS ADMINISTRATIVELY REPORTED THAT YOU WERE PAID THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $47.88 A MONTH FOR OFFICERS DURING THE PERIOD OF YOUR CLAIM. YOU SAY YOU ARE APPEALING OUR SETTLEMENT DATED SEPTEMBER 28. ON THE BASIS OF A DECISION MADE IN LATE 1962 RELATIVE TO A COST OF LIVING ALLOWANCE WHICH WAS ESTABLISHED FOR ALASKA. WE ARE UNABLE TO IDENTIFY THE DECISION TO WHICH YOU REFER. TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA. WHETHER OR NOT HE IS IN A TRAVEL STATUS. PROVIDES THAT COST OF LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES AND ARE DERIVED BY COMPARISON OF THE AVERAGE COST OF LIVING AND HOUSING OF MEMBERS IN EACH AREA OUTSIDE THE UNITED STATES WITH THE AVERAGE COST OF LIVING AND HOUSING OF SIMILAR MEMBERS IN THE UNITED STATES.

B-155528, JAN. 12, 1965

TO CAPTAIN MICHAEL L. LAYTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 23, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 28, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR MEALS PURCHASED DURING THE PERIOD AUGUST 1962 TO SEPTEMBER 1963 ON ACCOUNT OF THE NONAVAILABILITY OF A GOVERNMENT MESS AT FORT GULICK, CANAL ZONE.

IT IS ADMINISTRATIVELY REPORTED THAT YOU WERE PAID THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $47.88 A MONTH FOR OFFICERS DURING THE PERIOD OF YOUR CLAIM. YOU SAY YOU ARE APPEALING OUR SETTLEMENT DATED SEPTEMBER 28, 1964, ON THE BASIS OF A DECISION MADE IN LATE 1962 RELATIVE TO A COST OF LIVING ALLOWANCE WHICH WAS ESTABLISHED FOR ALASKA, AND YOU ASK THAT A COST OF LIVING ALLOWANCE BE ESTABLISHED FOR THE CANAL ZONE IN A SIMILAR MANNER. IN THE ABSENCE OF A MORE SPECIFIC CITATION, HOWEVER, WE ARE UNABLE TO IDENTIFY THE DECISION TO WHICH YOU REFER.

SECTION 506 OF TITLE 37, U.S.C. PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. PARAGRAPH 4301-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT COST OF LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES AND ARE DERIVED BY COMPARISON OF THE AVERAGE COST OF LIVING AND HOUSING OF MEMBERS IN EACH AREA OUTSIDE THE UNITED STATES WITH THE AVERAGE COST OF LIVING AND HOUSING OF SIMILAR MEMBERS IN THE UNITED STATES. PARAGRAPH 4301-2 PROVIDES THAT COST OF LIVING ALLOWANCES ARE PAYABLE TO A MEMBER WITHOUT DEPENDENTS AT THE PER DIEM RATES SPECIFIED IN APPENDIX A OF THE REGULATIONS. IN APPENDIX A THE COST OF LIVING ALLOWANCE DETERMINED UNDER THAT AUTHORITY AS PAYABLE TO PERSONNEL IN THE CANAL ZONE IS "NONE.'

THE STATUTE AUTHORIZES THE SECRETARIES CONCERNED TO ADMINISTRATIVELY DETERMINE AND ESTABLISH THE COST OF LIVING ALLOWANCES FOR OVERSEAS STATIONS TO REIMBURSE MEMBERS FOR THE RELATIVE DIFFERENCE BETWEEN LIVING COSTS IN THE UNITED STATES AND SIMILAR COSTS AT OVERSEAS STATIONS. THE LAW DOES NOT PERMIT THIS OFFICE TO MAKE THE ADMINISTRATIVE DETERMINATIONS REQUIRED BY THE REGULATIONS NOR DOES IT PERMIT AN ALLOWANCE BY THIS OFFICE FOR MEALS OR OTHER COST OF LIVING ITEMS CONTRARY TO THE DETERMINATIONS ADMINISTRATIVELY MADE IN THE JOINT TRAVEL REGULATIONS. CONSEQUENTLY, WE MAY NEITHER ESTABLISH ALLOWANCE RATES FOR PAYMENT TO YOU AND OTHERS SERVING IN THE CANAL ZONE NOR ALLOW YOUR CLAIM CONTRARY TO THE ADMINISTRATIVE DETERMINATION IN THE MATTER AS SET FORTH IN APPENDIX A TO THE REGULATIONS.

ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM, AND THE SETTLEMENT OF SEPTEMBER 28, 1964, IS SUSTAINED.

SINCE COST OF LIVING ALLOWANCES MUST BE ESTABLISHED UNDER THE PROVISIONS OF 37 U.S.C. 405, IT IS SUGGESTED THAT YOUR FURTHER INQUIRIES IN THE MATTER BE DIRECTED TO YOUR COMMANDING OFFICER FOR HIS CONSIDERATION IN CONNECTION WITH THE PROCEDURES PRESCRIBED IN APPENDIX D TO THE JOINT TRAVEL REGULATIONS.