B-158436, MAR. 22, 1966

B-158436, MAR. 22, 1966

TO CURTIS F. STEVENS, CWO, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1965, WITH ENCLOSURES, ADDRESSED TO THE DIRECTORATE OF ADJUDICATION, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, AND FORWARDED HERE FOR REPLY. THE LETTER WILL BE CONSIDERED A REQUEST FOR RECONSIDERATION OF OUR SETTLEMENT DATED NOVEMBER 23, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR MEALS PURCHASED DURING THE PERIOD MARCH 2, 1962, TO AUGUST 2, 1963, LESS THE AMOUNT RECEIVED AS BASIC SUBSISTENCE ALLOWANCE, ON ACCOUNT OF THE NONAVAILABILITY OF A GOVERNMENT MESS AT YOUR DUTY STATION, WHEELUS AIR FORCE BASE, LIBYA, APO 231, NEW YORK.

THE RECORD SHOWS THAT BY PERMANENT CHANGE OF STATION ORDERS DATED FEBRUARY 8, 1962, HEADQUARTERS, AMARILLO TECHNICAL TRAINING CENTER (ATC), UNITED STATES AIR FORCE, AMARILLO AIR FORCE BASE, TEXAS, YOU WERE ASSIGNED TO 7272 AIR BASE WING, USAFE, APO 231, NEW YORK, NEW YORK. IT IS REPORTED THAT SINCE NO GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU AT WHEELUS AIR FORCE BASE, YOU WERE REQUIRED TO PURCHASE MEALS IN THE OFFICERS CLUB OR EXCHANGE CAFETERIA, AND THAT COST OF LIVING ALLOWANCE WAS NOT AUTHORIZED FOR UNACCOMPANIED OFFICERS. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT DATED NOVEMBER 23, 1965, FOR THE REASON THAT NO COST OF LIVING ALLOWANCE APPLICABLE IN YOUR CASE HAD BEEN AUTHORIZED BY THE SECRETARY OF THE AIR FORCE. IN YOUR PRESENT LETTER YOU REQUEST THAT YOUR CLAIM BE CONSIDERED BY THE SECRETARY OF THE AIR FORCE, APPARENTLY FOR THE PURPOSE OF OBTAINING AUTHORITY FOR THE PAYMENT OF COST OF LIVING ALLOWANCE.

THE PERTINENT STATUTE, 37 U.S.C. 402 (C) PROVIDES THAT AN OFFICER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS, AT ALL TIMES, ENTITLED TO BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS. OFFICERS ARE NOT SUBSISTED AT GOVERNMENT EXPENSE BUT ARE PAID A MONTHLY SUBSISTENCE ALLOWANCE AND ARE REQUIRED TO PROVIDE THEIR OWN MEALS. IT HAS LONG BEEN HELD THAT THIS MONTHLY SUBSISTENCE ALLOWANCE RELATES TO THE NORMAL CONDITION OF THE OFFICER. 2 COMP. GEN. 113. WITH RESPECT TO ADDITIONAL EXPENSES FOR SUBSISTENCE INCURRED BY A MEMBER OVERSEAS OVER AND ABOVE THOSE ARISING UNDER NORMAL CIRCUMSTANCES, SECTION 405 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 TRAVEL STATUS.

PARAGRAPH M4301-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE CITED STATUTORY 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 M4301-2 PROVIDES THAT COST OF LIVING ALLOWANCES ARE PAYABLE TO A MEMBER WITHOUT DEPENDENTS AT THE PER DIEM RATES SPECIFIED IN APPENDICES OF THE REGULATIONS. THE COST OF LIVING ALLOWANCE DETERMINED UNDER THAT AUTHORITY AS PAYABLE TO PERSONNEL AT WHEELUS AIR FORCE BASE DURING THE PERIOD OF YOUR CLAIM AND ALSO AT THE PRESENT TIME IS "NONE.' THUS,NO COST OF LIVING ALLOWANCE WAS AUTHORIZED IN THE JOINT TRAVEL REGULATIONS BY THE SECRETARIES CONCERNED FOR PAYMENT TO YOU AND OTHERS SERVING AT WHEELUS AIR FORCE BASE. MOREOVER, EVEN IF IT WERE NOW DETERMINED BY THE SECRETARIES TO AUTHORIZE COST OF LIVING ALLOWANCE TO MEMBERS SERVING AT WHEELUS AIR FORCE BASE, SUCH REGULATIONS WOULD NOT HAVE RETROACTIVE EFFECT AND COULD NOT OPERATE TO ESTABLISH YOUR ENTITLEMENT TO COST OF LIVING ALLOWANCE SINCE ANY SUCH ENTITLEMENT BECAME FIXED AT THE TIME OF YOUR SERVICE AT WHEELUS AIR FORCE BASE. THIS IS BASED ON THE WELL SETTLED PRINCIPLE OF LAW THAT ONCE PROPERLY AUTHORIZED ADMINISTRATIVE DETERMINATIONS ARE MADE, THE RIGHTS THEREUNDER BECOME FIXED, AND ALTHOUGH SUCH DETERMINATION MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT IN THE ABSENCE OF CLEAR ERROR BE AMENDED RETROACTIVELY. COMP. GEN. 242 AND 41 COMP. GEN. 392. COMPARE ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370. THEREFORE, REFERRAL OF YOUR CLAIM TO THE SECRETARY OF THE AIR FORCE WOULD SERVE NO USEFUL PURPOSE.

ACCORDINGLY, SINCE COST OF LIVING ALLOWANCES WERE NOT ESTABLISHED FOR WHEELUS AIR FORCE BASE DURING THE PERIOD OF YOUR CLAIM UNDER THE PROVISIONS OF 37 U.S.C. 405, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF NOVEMBER 23, 1965, IS SUSTAINED.