B-159217, JUL. 12, 1966

B-159217, JUL. 12, 1966

TO JAMES C. WEBB, YNC, 266 75 58:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1966, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) AT THE RATE OF $1.13 PER DAY FOR THE PERIOD SEPTEMBER 1, 1964, TO DECEMBER 20, 1964, INCIDENT TO YOUR SERVICE AT THE HIGH WYCOMBE AIR STATION, HIGH WYCOMBE, ENGLAND. IN YOUR LETTER YOU ALSO CLAIM REIMBURSEMENT OF THE EXPENSES INCURRED BY YOU IN COMMUTING BY PRIVATELY OWNED VEHICLE FROM YOUR RESIDENCE IN LONDON TO HIGH WYCOMBE DURING THE PERIOD SEPTEMBER 1 TO DECEMBER 1, 1964.

THE RECORDS SHOW THAT EFFECTIVE SEPTEMBER 1, 1964, YOU WERE TRANSFERRED FROM THE U.S. NAVAL SUPPORT ACTIVITY, LONDON, ENGLAND, WHERE YOU HAD BEEN RECEIVING A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY, TO COMMANDER IN CHIEF ATLANTIC REPRESENTATIVE TO THE FIELD REPRESENTATIVE, EUROPE, HIGH WYCOMBE, ENGLAND. YOU CONTINUED TO RECEIVE THE BASIC ALLOWANCE FOR SUBSISTENCE AT $2.57 PER DAY UNTIL DECEMBER 15, 1964, WHEN THE DISBURSING OFFICE DETERMINED THAT YOU WERE NOT ENTITLED TO SUCH ALLOWANCE SINCE RATIONS IN KIND WERE AVAILABLE AT HIGH WYCOMBE AND THAT YOU WERE NOT AUTHORIZED TO MESS SEPARATELY. ON DECEMBER 21, 1964, YOU APPLIED FOR COMMUTED RATIONS AND EFFECTIVE JANUARY 18, 1965, YOUR PAY ACCOUNT WAS CREDITED WITH SUCH ITEM EFFECTIVE DECEMBER 21. YOUR PAY ACCOUNT WAS CHECKED FOR THE ENTIRE AMOUNT OF THE BASIC ALLOWANCE FOR SUBSISTENCE WHICH HAD BEEN CREDITED FOR THE PERIOD COMMENCING SEPTEMBER 1, 1964. BY SETTLEMENT DATED JUNE 3, 1965, YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE NOT AUTHORIZED TO MESS SEPARATELY PRIOR TO DECEMBER 21, 1964.

IN YOUR LETTER OF MARCH 25, 1966, YOU CITE CERTAIN PROVISIONS OF THE NAVY COMPTROLLER MANUAL AND THE BUREAU OF NAVAL PERSONNEL MANUAL IN SUPPORT OF YOUR VIEW THAT YOU ARE ENTITLED TO THE COMMUTED RATIONS AND YOU CONTEND THAT THERE WOULD HAVE BEEN NO ERROR IN YOUR CASE HAD NAVY PERSONNEL FOLLOWED PRESCRIBED PROCEDURES AT THE TIME OF YOUR TRANSFER. YOU EXPRESS THE BELIEF THAT THE SECOND PARAGRAPH OF LETTER OF DECEMBER 24, 1964, FROM YOUR ORGANIZATION WHEN READ IN CONJUNCTION WITH LETTER OF DECEMBER 22, 1964, FROM THE 3929TH AIR BASE SQUADRON (SAC), HIGH WYCOMBE AIR STATION, SUBSTANTIATES THE FACT THAT YOU WERE AUTHORIZED TO MESS SEPARATELY, EFFECTIVE SEPTEMBER 1, 1964.

SECTION 402, TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE TO MEMBERS OF THE UNIFORMED SERVICES "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' PARAGRAPH A-4404 (7) OF THE BUREAU OF NAVAL PERSONNEL MANUAL, CHANGE 10, APPLICABLE IN YOUR CASE, PROVIDES THAT ENLISTED PERSONNEL ON DUTY WHERE A GENERAL MESS IS OPERATED MAY BE AUTHORIZED TO MESS SEPARATELY AND PAID A COMMUTED RATION COMMENCING ON THE DATE AND HOUR FROM WHICH THE MEMBER'S REQUEST IS APPROVED AND THAT THE COMMANDING OFFICER'S APPROVAL OF A REQUEST FOR COMMUTED RATIONS MAY NOT COVER A RETROACTIVE PERIOD PRIOR TO THE DATE AND HOUR THE REQUEST IS SUBMITTED.

A GENERAL MESS WAS AVAILABLE AT HIGH WYCOMBE. HENCE, UNDER THE LAW AND REGULATIONS, THE CREDIT OF COMMUTED RATIONS TO YOUR PAY ACCOUNT COMMENCING SEPTEMBER 1, 1964, DATE OF YOUR ARRIVAL AT THAT STATION, WAS AUTHORIZED ONLY UPON A SHOWING THAT YOU HAD SUBMITTED A REQUEST FOR COMMUTED RATIONS ON OR BEFORE SEPTEMBER 1, 1964. SINCE YOU DID NOT REQUEST COMMUTED RATIONS UNTIL DECEMBER 21, 1964, YOU DID NOT MEET THE REQUIREMENTS PRESCRIBED IN THE LAW AND REGULATIONS GOVERNING THE PAYMENT OF COMMUTED RATIONS PRIOR TO THAT DATE. UNDER THE REGULATIONS, NO RETROACTIVE EFFECT MAY BE GIVEN TO THE COMMANDING OFFICER'S APPROVAL OF YOUR REQUEST OF DECEMBER 21, 1964.

PARAGRAPH A-4408 (7) (C) OF THE BUREAU OF PERSONNEL MANUAL, MENTIONED BY YOU, HAS NO APPLICATION IN YOUR CASE. THAT REGULATION HAS REFERENCE TO SITUATIONS WHERE A PRIOR VERBAL AUTHORIZATION TO MESS SEPARATELY HAD BEEN GRANTED TO AN ENLISTED MEMBER AND THE CONFIRMATION IN WRITING THOUGH NOT CONTEMPORANEOUS WAS MADE WITHIN A REASONABLE TIME FOLLOWING THE VERBAL AUTHORIZATION. SEE OUR DECISION OF JULY 18, 1955, B-123769,COPY ENCLOSED.

THE LETTER DATED DECEMBER 22, 1964, FROM THE 3929TH AIR BASE SQUADRON (SAC), HIGH WYCOMBE, STATES THAT IT IS THE POLICY OF THE COMMANDER OF THAT STATION TO AUTHORIZE COMMUTED RATIONS TO ALL PERSONNEL ASSIGNED WHO ARE MESSING WITH THEIR FAMILIES IN THE LOCAL AREA. HOWEVER, THE RECORDS SHOW THAT YOU DID NOT MAKE APPLICATION PRIOR TO DECEMBER 21, 1964, TO MESS SEPARATELY AND NEITHER THAT LETTER NOR THE LETTER OF DECEMBER 24, 1964, FROM YOUR ORGANIZATION, WHICH STATES THAT YOU COULD NOT REASONABLY BE EXPECTED TO MAKE FORMAL APPLICATION FOR COMMUTED RATIONS WHEN YOU WERE UNAWARE THAT ANY PROCEDURAL DISCREPANCIES OR OMISSIONS EXISTED, MAY BE APPLIED AS BACK DATING YOUR APPLICATION TO SEPTEMBER 1, 1964. WHILE IT MAY BE THAT YOU WERE MISLED BY NAVAL PERSONNEL AS TO YOUR ENTITLEMENT TO THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE TIME OF YOUR TRANSFER TO HIGH WYCOMBE, THAT FACT AFFORDS NO LEGAL BASIS FOR PAYMENT TO YOU OF THE COMMUTED RATIONS, IT BEING WELL-SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION, THE UNITED STATES IS NOT LIABLE FOR NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 148 U.S. 573, 579 (1893); 19 COMP. GEN. 503; AND 22 COMP. GEN. 221.

WE MAY ADVISE YOU THAT THE ARTICLE IN THE AIR FORCE TIMES (EUROPE), ISSUE OF SEPTEMBER 29, 1965, SUBMITTED BY YOU FOR OUR CONSIDERATION OF YOUR CLAIM IN THE LIGHT OF A "MORE EQUITABLE SOLUTION," DEALT WITH A LEGISLATIVE PROPOSAL RELIEVING A NUMBER OF AIRMEN IN A SITUATION WHERE SUCH AIRMEN WERE AUTHORIZED TO MESS SEPARATELY, BUT WERE IMPROPERLY PAID BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 RATHER THAN $1.10 PER DAY BECAUSE OF THE AVAILABILITY OF A GOVERNMENT GENERAL MESS. IN THE CIRCUMSTANCES OF YOUR CASE WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW THE COMMUTED RATIONS FOR THE PERIOD CLAIMED BY YOU. ACCORDINGLY, THE SETTLEMENT OF JUNE 3, 1965, WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED BY YOU IN COMMUTING FROM YOUR RESIDENCE IN LONDON TO HIGH WYCOMBE, IT HAS LONG BEEN THE RULE THAT THE EXPENSE OF TRAVEL BETWEEN HOME OR LODGINGS AND PLACE OF DUTY AT A PERMANENT DUTY STATION IS A PERSONAL OBLIGATION NOT REIMBURSABLE FROM PUBLIC FUNDS. SEE 45 COMP. GEN. 30 AND 42 COMP. GEN. 612, COPIES ENCLOSED. ACCORDINGLY, YOUR CLAIM FOR REIMBURSEMENT OF SUCH EXPENSES MAY NOT BE ALLOWED.