B-157497, SEP. 13, 1965, 45 COMP. GEN. 133

B-157497, SEP. 13, 1965, 45 COMP. GEN. 133

UNIFORMS - CIVILIAN PERSONNEL - MILITARY UNIFORMS - APPROVAL REQUIREMENT A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY WHO WHILE ON TEMPORARY DUTY WITH THE COMBAT SERVICE SUPPORT AND INCIDENT TO PARTICIPATING IN FIELD TEST EXERCISES WAS DIRECTED TO PURCHASE ARMY FIELD UNIFORMS AT NO EXPENSE TO THE GOVERNMENT MAY NOT BE REIMBURSED FOR THE COST OF THE UNIFORMS UNDER THE FEDERAL EMPLOYEES ALLOWANCE ACT, 5 U.S.C. 2131 TO 2133, THE ARMY REGULATION IMPLEMENTING THE ACT AND LISTING THE PERSONNEL AUTHORIZED TO WEAR UNIFORMS NOT INCLUDING CIVILIAN PERSONNEL PARTICIPATING IN FIELD EXERCISES, AND THE ORDER DIRECTING THE EMPLOYEE TO WEAR ARMY UNIFORM CLOTHING NOT HAVING BEEN PREDICATED UPON ANY PREEXISTING REGULATION UNDER 5 U.S.C. 2131, NOR AUTHORITY FOR ITS USE REQUESTED, CONDITIONS PRECEDENT TO PAYMENT OF THE UNIFORM ALLOWANCE PROVIDED IN SECTION 2131, THERE IS NO LAWFUL BASIS FOR REIMBURSING THE EMPLOYEE FOR HIS CLOTHING EXPENDITURES.

TO CAPTAIN S. LAZEVNICK, DEPARTMENT OF THE ARMY, SEPTEMBER 13, 1965:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 12, 1965, WITH SEVERAL INDORSEMENTS, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER FOR $46.88 FOR THE PURCHASE OF ARMY UNIFORM CLOTHING BY MR. ROCCO LUCARINE, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR USE WHILE ON TEMPORARY DUTY WITH THE COMBAT SERVICE SUPPORT DIVISION, FORT BENNING, GEORGIA.

MR. LUCARINE, ALONG WITH A NUMBER OF TECHNICAL REPRESENTATIVES FROM CIVILIAN COMPANIES AND OTHER ARMY CIVILIAN PERSONNEL, PARTICIPATED IN FIELD TEST EXERCISES AT FORT BENNING AS A MEMBER OF A PROJECT "TEAM" IN THE CAPACITY OF AN OBSERVER AND EVALUATOR FROM NOVEMBER 1964 TO JUNE 1965. HE AND THE OTHER ARMY CIVILIAN PERSONNEL AND THE TECHNICAL REPRESENTATIVES TAKING PART IN THE EXERCISE WERE DIRECTED BY THE EXERCISE DIRECTOR TO WEAR ARMY FIELD UNIFORMS WITH APPROPRIATE IDENTIFYING TAPES SO THAT THEY WOULD BLEND INTO THE ARMY BACKGROUND AT A DISTANCE, AND BE DISTINGUISHABLE AT CLOSE RANGE.

CIVILIAN COMPANIES HAVING TECHNICAL REPRESENTATIVES PARTICIPATING IN THE EXERCISE WERE ADVISED THAT THE UNIFORMS COULD BE PURCHASED FROM THE FORT BENNING QUARTERMASTER CLOTHING STORE, AT NO EXPENSE TO THE GOVERNMENT. THE SECOND INDORSEMENT BY HEADQUARTERS, TEST, EVALUATION AND CONTROL GROUP, FORT BENNING, GEORGIA, INDICATES THAT OTHER ARMY CIVILIAN PERSONNEL TAKING PART IN THE EXERCISE HAVE BEEN REIMBURSED FOR SIMILAR PURCHASES OF UNIFORM CLOTHING.

THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT, APPROVED SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 114, AS AMENDED, 5 U.S.C. 2131 TO 2133, AUTHORIZES THE HEAD OF A FEDERAL AGENCY TO WHICH AN APPROPRIATION IS MADE FOR UNIFORMS, TO PROVIDE, UNDER REGULATIONS OF THE BUREAU OF THE BUDGET, UNIFORMS OR ALLOWANCES IN LIEU OF UNIFORMS TO EMPLOYEES OF THE AGENCY "WHO ARE REQUIRED BY REGULATION OR LAW" (5 U.S.C. 2131) TO WEAR A PRESCRIBED UNIFORM. IN IMPLEMENTATION OF THE ABOVE ACT, BUREAU OF THE BUDGET CIRCULAR NO. A-30, REVISED, DATED JANUARY 1, 1964, PROVIDES THAT THE AGENCY HEAD COULD DETERMINE UNIFORM REQUIREMENTS AND ENTITLEMENT TO UNIFORM ALLOWANCES. PURSUANT TO THIS CIRCULAR, DEPARTMENT OF DEFENSE DIRECTIVE NO. 1418.2 OF FEBRUARY 16, 1956, OUTLINED CERTAIN STANDARDS AS TO UNIFORMS AND AUTHORIZED THE SECRETARY OF EACH MILITARY DEPARTMENT OR HIS DESIGNEE TO DETERMINE THE OCCUPATIONAL GROUPS OF EMPLOYEES REQUIRED TO WEAR UNIFORMS AND THE ENTITLEMENT TO ALLOWANCES.

THE DEPARTMENT OF THE ARMY'S REGULATION IN THIS AREA, AR 670-340-1, IS QUOTED IN PERTINENT PART AS FOLLOWS:

4. POLICY. EMPLOYEES OF THE DEPARTMENT OF THE ARMY WILL NOT BE REQUIRED TO WEAR UNIFORMS IN CONNECTION WITH THEIR EMPLOYMENT EXCEPT WHEN THE WEARING OF A UNIFORM IS NECESSARY FOR IDENTIFICATION, DISCIPLINE, OR OTHER REASONS RELATING TO THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ANY EMPLOYEE WHO IS REQUIRED TO WEAR A UNIFORM AS A CONDITION OF EMPLOYMENT AND IS NOT FURNISHED A UNIFORM OR PAID AN ALLOWANCE UNDER OTHER LAWS OR REGULATIONS WILL BE PAID A UNIFORM ALLOWANCE OR WILL BE FURNISHED A UNIFORM UNDER THESE REGULATIONS. EMPLOYEES FOR WHOM A UNIFORM IS NOT REQUIRED BY THESE OR OTHER REGULATIONS OF HEADQUARTERS, DEPARTMENT OF THE ARMY, WHO ARE WEARING UNIFORMS PURSUANT TO ANY OTHER INSTRUCTIONS WILL BE RELIEVED OF THE REQUIREMENT.

5. B. DEPARTMENT OF THE ARMY. RESPONSIBILITIES WITHIN THE DEPARTMENT OF THE ARMY ARE ASSIGNED AS FOLLOWS:

(1) DEPUTY CHIEF OF STAFF FOR PERSONNEL. THE DEPUTY CHIEF OF STAFF FOR PERSONNEL WILL---

(A) ESTABLISH BASIC STANDARDS AND GUIDELINES FOR FURNISHING UNIFORMS OR PAYING UNIFORM ALLOWANCES.

(4) INSTALLATION COMMANDERS. INSTALLATION COMMANDERS WILL---

(A) INSURE THAT NO EMPLOYEES ARE REQUIRED TO WEAR UNIFORMS UNLESS SUCH REQUIREMENT IS ESTABLISHED BY A REGULATION OF HEADQUARTERS, DEPARTMENT OF THE ARMY.

(B) INSURE COMPLIANCE WITH THESE REGULATIONS AND WITH THE REGULATIONS COVERING SPECIFIC GROUPS OF EMPLOYEES.

(C) INFORM BOTH SUPERVISORS AND EMPLOYEES WHO ARE REQUIRED TO WEAR UNIFORMS OF THE CONDITIONS AND REQUIREMENTS FOR WEARING UNIFORMS AND OF THE PROVISIONS MADE FOR FURNISHING UNIFORMS OR FOR PAYMENT OF ALLOWANCES.

(D) ISSUE NECESSARY LOCAL INSTRUCTIONS TO CARRY OUT THESE REGULATIONS.

6. AUTHORIZATION TO REQUIRE UNIFORMS. THE GROUPS OF EMPLOYEES WITHIN THE DEPARTMENT OF THE ARMY WHO MAY BE, OR CURRENTLY HAVE BEEN, REQUIRED TO WEAR UNIFORMS UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES UNIFORM ALLOWANCE ACT ARE LISTED IN PARAGRAPH 11. THE REQUIREMENTS AND CONDITIONS SPECIFIC TO EACH OF THESE GROUPS ARE CONTAINED IN IMPLEMENTING REGULATIONS PROPOSED BY THE AGENCY HAVING FUNCTIONAL JURISDICTION. * * *

A. LOCAL COMMANDERS HAVE AUTHORITY TO DELETE UNIFORM ITEMS BECAUSE OF CLIMATIC CONDITIONS, SUBJECT TO COORDINATION WITH HEADS OF OTHER MILITARY DEPARTMENTS IN THE AREA (PAR. 7A (2) ). AUTHORITY TO REQUIRE ADDITIONAL GROUPS OF EMPLOYEES TO WEAR UNIFORMS, TO CHANGE OR ADD TO THE ITEMS REQUIRED FOR A STANDARD UNIFORM, TO DEVIATE FROM ESTABLISHED STANDARDS OF QUALITY OF UNIFORM ITEMS, TO INCREASE OR DECREASE UNIFORM ALLOWANCES, OR FOR EXCEPTIONS TO STANDARDS OR REGULATIONS, MUST BE REQUESTED. REQUESTS FOR SUCH AUTHORITY WILL BE SUBMITTED THROUGH COMMAND CHANNELS. * *

PARAGRAPH 11 OF AR 670-340-1 LISTS 12 CATEGORIES OF PERSONNEL WHO ARE REQUIRED TO WEAR UNIFORMS AND FOR WHOM PAYMENT OF AN ALLOWANCE OR THE FURNISHING OF A UNIFORM IS AUTHORIZED. CIVILIAN PERSONNEL PARTICIPATING IN FIELD EXERCISES IS NOT ONE OF THE GROUPS COVERED.

THE ORDER DIRECTING MR. LUCARINE TO WEAR ITEMS OF ARMY UNIFORM CLOTHING WHILE PARTICIPATING IN FIELD TEST EXERCISES WAS NOT PREDICATED UPON ANY PREEXISTING REGULATION UNDER 5 U.S.C. 2131 AND AUTHORITY TO REQUIRE THE USE OF THE UNIFORM APPARENTLY WAS NOT REQUESTED OR GRANTED, AS PROVIDED BY PARAGRAPH 6A, ABOVE.

IT IS FOR NOTING THAT THE SPECIAL CLOTHING FOR EMPLOYEES ISSUED UNDER AR 32-301 AND THE PROTECTIVE CLOTHING ISSUED UNDER AR 385-32, AUTHORIZED UNDER SECTION 13 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 809, AS AMENDED, 5 U.S.C. 118G, WHICH ARE DESIGNED TO PROTECT EMPLOYEES AGAINST EXTREMES OF WEATHER OR HAZARDOUS CONDITIONS, ARE NOT CONSIDERED AS ENCOMPASSING ARMY FATIGUE UNIFORMS. CF. 32 COMP. GEN. 229. THE GENERAL RULE IS THAT ARTICLES OF PERSONAL EQUIPMENT OR FURNISHINGS ARE NOT AUTHORIZED TO BE PURCHASED UNDER THE APPROPRIATIONS IN THE ABSENCE OF SPECIFIC PROVISIONS THEREFOR CONTAINED IN APPROPRIATIONS OR OTHER ACTS. IBID.; 2 COMP. GEN. 652.

THE PAYMENT OF UNIFORM ALLOWANCES BY THE GOVERNMENT IS GOVERNED BY APPLICABLE LAWS AND REGULATIONS. THE FACT THAT OTHER EMPLOYEES MAY HAVE BEEN IMPROPERLY REIMBURSED FOR SIMILAR CLAIMS DOES NOT CONSTITUTE VALID AUTHORITY FOR ALLOWING PAYMENT OF THE INSTANT CLAIM. SUCH ILLEGAL PAYMENTS ARE FOR CONSIDERATION IN THE AUDIT OF THE ACCOUNTS CONCERNED AND CANNOT SERVE TO ESTABLISH ENTITLEMENT TO BENEFITS WHERE NONE OTHERWISE EXISTS.

THEREFORE, SINCE MR. LUCARINE WAS NOT REQUIRED BY A VALID REGULATION TO WEAR A PRESCRIBED UNIFORM, WHICH IS A CONDITION PRECEDENT TO PAYMENT OF AN ALLOWANCE UNDER 5 U.S.C. 2131, THERE IS NO LAWFUL BASIS FOR PAYMENT OF THE VOUCHER TRANSMITTED WITH YOUR LETTER.