B-158417, MAR. 11, 1966

B-158417, MAR. 11, 1966

TO TECHNICAL SERGEANT MILTON L. OSBORNE, AF 4502 4371:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER, AND ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE DURING THE PERIOD JUNE 27, 1964, TO FEBRUARY 3, 1965, WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED NOVEMBER 30, 1965.

THE RECORD SHOWS THAT ON THE BASIS OF YOUR APPLICATION FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) DATED FEBRUARY 4, 1965, YOU HAVE BEEN PAID SUCH ALLOWANCE FROM THAT DATE. YOU SAY IN YOUR LETTER OF MAY 12, 1965, TO THE PERSONNEL OFFICER, 2063RD COMMUNICATIONS SQUADRON, THAT WHEN YOU CLEARED INTO THAT SQUADRON YOU THOUGHT THAT YOU WOULD RECEIVE SEPARATE RATIONS WITHOUT YOUR HAVING TO APPLY FOR THEM. THE SETTLEMENT OF NOVEMBER 30, 1965, DISALLOWED YOUR CLAIM COVERING THE PERIOD JUNE 27, 1964, TO FEBRUARY 3, 1965, FOR THE REASON THAT THE EFFECTIVE DATE FOR RECEIVING BASIC ALLOWANCE FOR SUBSISTENCE AS SEPARATE RATIONS IS THE DATE THE AIRMAN IS AUTHORIZED TO RATION SEPARATELY, AND RETROACTIVE AUTHORITY TO RATION SEPARATELY IS PROHIBITED. YOU SUBMITTED WITH YOUR RECENT LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM A SIGNED STATEMENT DATED JANUARY 4, 1966, BY MASTER SERGEANT EMORY D. FREEMAN,USAF, CERTIFYING THAT HE REVIEWED ALL MEAL CARD RECORDS FOR THE 2063RD COMMUNICATIONS SQUADRON AND THAT YOU HAVE NEVER BEEN ISSUED A MEAL CARD. YOU FEEL THAT YOUR CLAIM IS VALID FOR THAT REASON SINCE YOU WERE NOT PAID A BASIC ALLOWANCE FOR SUBSISTENCE DURING THE PERIOD IN QUESTION.

SUBSECTION (A) OF SECTION 301 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 ON A DAILY BASIS TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHEN "PERMISSION TO MESS SEPARATELY IS GRANTED.' SUBSECTION (D) OF SECTION 301 PROVIDED: "THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION.' SECTION 2 OF EXECUTIVE ORDER NO. 10119 DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301, PROVIDED GENERALLY THAT THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED, WITH RESPECT TO THE PERSONNEL OF THE UNIFORMED SERVICES IN HIS DEPARTMENT, WAS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS,"NOT INCONSISTENT HEREWITH," AS HE MIGHT DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THE ORDER AND OF SECTION 301 OF THE ACT. EFFECTIVE NOVEMBER 1, 1962, 37 U.S.C. 251/A) WAS SUPERSEDED, WITHOUT SUBSTANTIVE CHANGE, BY 37 U.S.C. 402/B), AND PROVISION SIMILAR TO THAT CITED IN EXECUTIVE ORDER NO. 10119 IS CONTAINED IN SECTION 302 EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE WHICH WERE IN EFFECT ON JUNE 27, 1964, WERE CONTAINED IN CHAPTER 4, PART TWO, AIR FORCE MANUAL 177-105 (1960 ED.). UNDER PARAGRAPH 20404B (CHANGE 33, MAY 28, 1963), OF THOSE REGULATIONS, AIRMEN WERE ENTITLED TO SEPARATE RATIONS WHEN GRANTED PERMISSION TO MESS SEPARATELY BY THE COMMANDER OF A MAJOR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING, OR OTHER COMPARABLE SEPARATE COMMAND, AND THIS AUTHORITY COULD BE DELEGATED TO SQUADRON COMMANDERS PROVIDED STANDARD CRITERIA FOR GRANTING PERMISSION WERE ESTABLISHED THROUGHOUT THE BASE OR COMMAND. SUBSTANTIALLY IDENTICAL PROVISIONS ARE CONTAINED IN PARAGRAPH 10422B/3) (A), AIR FORCE MANUAL 177- 105 (1964 ED.), EFFECTIVE JULY 1, 1964.

PARAGRAPH 20409 (CHANGE 31, APRIL 15, 1963) PROVIDED THAT "AF FORM 220, REQUEST, AUTHORIZATION AND PAY ORDER, BAS--- SEPARATE RATIONS," WOULD BE USED AS APPLICATION, AUTHORIZATION, AND SUBSTANTIATING DOCUMENT TO CREDIT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WHEN AN AIRMAN WAS PERMITTED TO RATION SEPARATELY AT HIS PERMANENT DUTY STATION UNDER PARAGRAPH 20404B/2) (C/1. IT WAS STATED EXPLICITLY IN THAT PARAGRAPH THAT SECTION 1 OF AF FORM 220 WOULD BE COMPLETED TO SHOW THE AIRMAN'S FULL NAME, GRADE, SERVICE NUMBER, PERMANENT ORGANIZATION AND DUTY STATION, MARITAL STATUS, EFFECTIVE DATE DESIRED, REASON FOR REQUEST (IF OTHER THAN A CURRENT EFFECTIVE DATE WAS DESIRED, THE REASON FOR DELAY IN SUBMISSION WAS TO BE SHOWN), AND THAT AFTER THE APPLICATION WAS DATED AND SIGNED BY THE AIRMAN IT WAS TO BE PRESENTED TO THE SQUADRON COMMANDER. IT WAS ALSO STATED THAT SECTION II OF AF FORM 220 WOULD BE COMPLETED BY THE UNIT, BASE OR WING COMMANDER AND THAT THE EFFECTIVE DATE SPECIFIED ON THAT FORM FOR SEPARATE RATIONS CREDIT WAS THE DATE THE AIRMAN WAS AUTHORIZED, INCLUDING VERBAL AUTHORITY, TO RATION SEPARATELY, AND, FURTHER, THAT VERBAL AUTHORITY GIVEN ON THE EFFECTIVE DATE SHOWN WOULD BE CONFIRMED BY THE COMMANDER OR HIS AUTHORIZED REPRESENTATIVE IN SECTION II, AND THAT "RETROACTIVE AUTHORITY TO RATION SEPARATELY IS OHIBITED.' SUBSTANTIALLY IDENTICAL PROVISIONS ARE CONTAINED IN PARAGRAPHS 30407 OF AIR FORCE MANUAL 177 105 (1964 ED.), EFFECTIVE JULY 1, 1964.

THUS, THE REGULATIONS SPECIFICALLY PROVIDED THAT AN AIRMAN WHO DESIRED TO RATION SEPARATELY WAS TO REQUEST AUTHORIZATION BY EXECUTING SECTION I OF AF FORM 220 AND PRESENT IT TO THE PROPER OFFICIAL FOR APPROVAL. IN OUR DECISION OF JUNE 5, 1958, B-135647, 37 COMP. GEN. 820, WE HELD, IN PERTINENT PART:

"* * * IT IS WELL ESTABLISHED IN ADMINISTRATIVE LAW THAT VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN PROVISIONS OF THE STATUTES THEMSELVES. REGULATIONS MUST CONTAIN A GUIDE OR STANDARD ALIKE TO ALL INDIVIDUALS SIMILARLY SITUATED, SO THAT ANYONE INTERESTED MAY DETERMINE HIS OWN RIGHTS OR EXEMPTIONS THEREUNDER. THE ADMINISTRATIVE AGENCY MAY NOT EXERCISE DISCRETION TO ENFORCE THEM AGAINST SOME AND TO REFUSE TO ENFORCE THEM AGAINST OTHERS.'

THE STATUTORY REGULATIONS CITED ABOVE ARE BINDING ON ALL AIR FORCE OFFICERS AND EMPLOYEES, REGARDLESS OF ACTUAL KNOWLEDGE OF THOSE REGULATIONS, AND NEITHER THE DEPARTMENT OF THE AIR FORCE NOR OUR OFFICE HAS AUTHORITY TO WAIVE OR TO IGNORE ANY OF THE PROVISIONS THEREOF IN THE CASE OF ANY PARTICULAR INDIVIDUAL. IN THE ABSENCE OF A PROPER AUTHORIZATION FOR YOU TO RATION SEPARATELY DURING THE PERIOD INVOLVED, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. ALSO, THE FACT THAT YOU WERE NOT ISSUED A MEAL CARD FOR THIS PERIOD OR THAT YOU WERE NOT PAID A BASIC SUBSISTENCE ALLOWANCE WOULD NOT PROVIDE A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 30, 1965, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

REGARDING YOUR INQUIRY AS TO WHAT CHANNEL YOU MAY TAKE FOR FURTHER CONSIDERATION OF YOUR CLAIM, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THEREFORE, THERE IS NO FURTHER ACTION THAT CAN BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. HOWEVER, THE COURT OF CLAIMS HAS AUTHORITY TO CONSIDER CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED WITHIN 6 YEARS FROM DATE FIRST ACCRUED. 28 U.S.C. 1491 AND 2501.

SINCE YOU WERE NOT AUTHORIZED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE DURING THE PERIOD INVOLVED, NO CHARGE SHOULD HAVE BEEN MADE FOR THE MEALS FURNISHED YOU. THUS, YOU ARE ENTITLED TO A REFUND OF ANY AMOUNTS WHICH IT CAN BE ESTABLISHED YOU PAID FOR THESE MEALS. IF YOU WISH TO MAKE A CLAIM FOR REFUND OF THESE AMOUNTS, IT IS SUGGESTED THAT IT BE FILED WITH THE AIR FORCE.