B-159974, OCT. 24, 1966

B-159974: Oct 24, 1966

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USAF: REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD JULY 1. WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 26. YOU PERFORMED NUMEROUS TRIPS ON TEMPORARY DUTY AND THAT BASIC ALLOWANCE FOR SUBSISTENCE WAS DEDUCTED FROM THE TRAVEL VOUCHERS. THAT REQUEST WAS APPROVED BY YOUR COMMANDER TO VERIFY VOCAL ORDERS OF JULY 1. IT IS ADMINISTRATIVELY REPORTED. THAT THERE IS NO RECORD TO ESTABLISH THAT A FORM 220 WAS INITIATED OR ACCOMPLISHED IN JULY 1962. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THERE IS NO RECORD THAT YOU MADE APPLICATION TO RATION SEPARATELY ON JULY 1.

B-159974, OCT. 24, 1966

TO TECHNICAL SERGEANT THOMAS J. KAHLER, USAF:

REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD JULY 1, 1962, TO DECEMBER 20, 1964, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 26, 1966.

IT APPEARS THAT YOU REPORTED AT 6260TH SUPPORT GROUP, HEADQUARTERS UNITED STATES AIR FORCE EUROPE, WEISBADEN, GERMANY, ON JULY 1, 1962. YOU SAY YOUR DEPENDENTS ACCOMPANIED YOU, CONCURRENT TRAVEL HAVING BEEN AUTHORIZED FROM RAMSTEIN, GERMANY, YOUR LAST STATION. ALSO, YOU CERTIFIED THAT ON JULY 1, 1962, YOU SUBMITTED A FORM FOR SEPARATE RATIONS (AF FORM 220); THAT SUBSEQUENTLY YOU PAID FOR ALL MEALS RECEIVED IN GOVERNMENT DINING HALLS, AND THAT YOU DID NOT APPLY FOR OR RECEIVE A MEAL CARD. YOU FURTHER SAY THAT DURING THE PERIOD JULY 1, 1962, TO DECEMBER 22, 1964, YOU PERFORMED NUMEROUS TRIPS ON TEMPORARY DUTY AND THAT BASIC ALLOWANCE FOR SUBSISTENCE WAS DEDUCTED FROM THE TRAVEL VOUCHERS.

IN SUPPORT OF YOUR CLAIM, ON DECEMBER 14, 1964, YOU EXECUTED FORM AF 220 REQUESTING AUTHORITY TO RATION SEPARATELY EFFECTIVE JULY 1, 1962. THAT REQUEST WAS APPROVED BY YOUR COMMANDER TO VERIFY VOCAL ORDERS OF JULY 1, 1962, AUTHORIZING SEPARATE RATIONS. IT IS ADMINISTRATIVELY REPORTED, HOWEVER, THAT THERE IS NO RECORD TO ESTABLISH THAT A FORM 220 WAS INITIATED OR ACCOMPLISHED IN JULY 1962, OR TO SUPPORT YOUR STATEMENT THAT YOU NEVER RECEIVED A MEAL TICKET.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THERE IS NO RECORD THAT YOU MADE APPLICATION TO RATION SEPARATELY ON JULY 1, 1962, AND THAT APPROVAL BY PROPER AUTHORITY WAS NOT GRANTED DURING THE PERIOD OF THE CLAIM. YOU WERE ADVISED, HOWEVER, THAT IF YOU WOULD FURNISH EVIDENCE FROM OFFICIAL SOURCES SHOWING THE AMOUNTS ACTUALLY PAID FOR MEALS IN GOVERNMENT DINING HALLS, WHICH SHOULD HAVE BEEN FURNISHED WITHOUT CHARGE, CONSIDERATION WOULD BE GIVEN TO A CLAIM FOR REFUND OF THE AMOUNTS PAID. YOU HAVE NOT FURNISHED SUCH EVIDENCE; HOWEVER, YOU HAVE FURNISHED COPIES OF TEMPORARY DUTY TRAVEL VOUCHERS DURING THE PERIOD JULY 1, 1962, TO DECEMBER 20, 1964, ON WHICH BASIC ALLOWANCE FOR SUBSISTENCE WAS DEDUCTED, AND CONTEND THAT THIS SUPPORTS YOUR CLAIM FOR THE ALLOWANCE.

SECTION 402B/2) OF TITLE 37, U.S.C. AUTHORIZES 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 (F) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SECTION 2 OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, RECODIFIED EFFECTIVE NOVEMBER 1, 1962, AS 37 U.S.C. 402, 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 REWITH," AS HE MIGHT DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THE ORDER AND OF SECTION 301 OF THE ACT. SIMILAR PROVISION IS CONTAINED IN SECTION 302 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE WHICH WERE IN EFFECT ON JULY 1, 1962, WERE CONTAINED IN AIR FORCE MANUAL 177 105 (1960 ED.). UNDER PARAGRAPH 20404B/1) (B), CHANGE 4, OCTOBER 20, 1960, OF AFM 177-105, AIRMEN WERE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE BASE COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20404B/3) PROVIDED THAT FINAL ACTION ON APPLICATIONS FOR BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE TAKEN BY THE COMMANDER OF A MAJOR AIR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING, OR OTHER COMPARABLE SEPARATE COMMAND. PARAGRAPH 20408 PROVIDED THAT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE STARTED AND STOPPED ON THE BASIS OF MILITARY PAY ORDERS PREPARED BY CERTIFYING OFFICERS IN QUADRUPLICATE. PARAGRAPH 40719B/3) (A), CHANGE 1, JULY 1, 1960, PROVIDED THAT AS SOON AS POSSIBLE AFTER PREPARATION OF THE MILITARY PAY ORDERS PREPARED IN QUADRUPLICATE THE ORIGINAL AND TWO COPIES WOULD BE DELIVERED TO THE ACCOUNTING AND FINANCE OFFICER AND THE FOURTH COPY WOULD BE RETAINED BY THE CERTIFYING OFFICER. FURTHER, PARAGRAPH 20409B/2) (C) (CHANGE 10, SEPTEMBER 1, 1961) SPECIFICALLY PROVIDES THAT "RETROACTIVE AUTHORITY TO RATION SEPARATELY IS PROHIBITED.' A SIMILAR PROVISION IS CONTAINED IN PARAGRAPH 20409 OF AFM 177-105 (1964 ED.) EFFECTIVE JULY 1, 1964.

UNDER THE CITED STATUTORY PROVISIONS AND REGULATIONS THE ALLOWANCE IN QUESTION IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED PERSON, AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED WAS AUTHORIZED BY THE PROPER AUTHORITY TO MESS SEPARATELY. WE HAVE HELD, GENERALLY, THAT RETROACTIVE WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED, BUT ONLY IF IT IS SHOWN THAT SUCH WRITTEN ORDERS WERE ISSUED IN CONFIRMATION OF SPECIFIC VERBAL ORDERS ISSUED BY PROPER AUTHORITY AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, AND ONLY IF THEY WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF THE VERBAL ORDERS. IT IS OUR PRACTICE TO RECOGNIZE SUCH RETROACTIVE WRITTEN ORDERS ONLY WHERE THERE HAS BEEN A FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE VERBAL ORDERS; IN OTHER WORDS, THERE MUST BE EVIDENCE OTHER THAN BELATED CONFIRMATORY ORDERS THEMSELVES TO ESTABLISH THAT VERBAL ORDERS WERE ACTUALLY ISSUED. THIS PRACTICE IS BASED ON THE FACT THAT THE MESS PROVIDED FOR ENLISTED MEMBERS IS CREDITED WITH THE SUBSISTENCE ALLOWANCE FOR ALL MEMBERS ASSIGNED TO THE MESS WHO ARE NOT SPECIFICALLY AUTHORIZED BY ORDERS TO MESS SEPARATELY AND PAYMENT OF THE ALLOWANCE TO THE MEMBER IN THE ABSENCE OF SUCH ORDERS RESULTS IN A DUPLICATE PAYMENT OF THE SUBSISTENCE ALLOWANCE.

AS INDICATED ABOVE, THE AUTHORIZATION DATED DECEMBER 14, 1964, CONFIRMING VERBAL ORDERS OF JULY 1, 1962, WAS ISSUED TWO AND ONE-HALF YEARS FROM SUCH PURPORTED ISSUANCE OF SUCH VERBAL ORDERS. FURTHER, IT WAS ADMINISTRATIVELY REPORTED THAT THERE IS NO RECORD THAT YOU DID EXECUTE AN APPLICATION FOR SEPARATE RATIONS. THUS, THE AUTHORIZATION DATED DECEMBER 14, 1964, MAY NOT BE ACCEPTED AS PROVIDING A LEGAL BASIS FOR PAYMENT OF SUBSISTENCE ALLOWANCE FOR ANY PERIOD PRIOR TO THE DATE OF ITS ISSUANCE. IT WILL BE CONSIDERED AS PROVIDING AUTHORITY FOR THE PAYMENT TO YOU OF THE BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD DECEMBER 14, TO DECEMBER 20, 1964, HOWEVER. THE FACT THAT SUBSISTENCE ALLOWANCE WAS DEDUCTED FROM TRAVEL VOUCHERS, APPARENTLY BASED ON THE BELIEF THAT YOU WERE AUTHORIZED TO RATION SEPARATELY, DOES NOT ESTABLISH THAT SEPARATE RATIONS WERE AUTHORIZED.

THEREFORE, SINCE THE RECORD DOES NOT ESTABLISH THAT YOU HAVE MET THE CONDITIONS OF THE REGULATIONS FOR THE PERIOD OF YOUR CLAIM PRIOR TO DECEMBER 14, 1964, THERE IS NO BASIS FOR ALLOWANCE OF YOUR CLAIM OTHER THAN FOR THE PERIOD DECEMBER 14 TO 20, 1964, AS INDICATED ABOVE.

SINCE SUBSISTENCE ALLOWANCE WAS ERRONEOUSLY DEDUCTED FROM YOUR TRAVEL VOUCHERS DURING THE PERIOD INVOLVED, ALL OCCURRING PRIOR TO DECEMBER 14, 1964, WE WILL REFUND SUCH AMOUNTS UPON RECEIPT OF INFORMATION FROM THE AIR FORCE THAT IT HAS NOT AND WILL NOT MAKE SUCH REFUND INCIDENT TO THE DISALLOWANCE OF YOUR CLAIM. ALSO, AS INDICATED IN THE SETTLEMENT OF JANUARY 26, 1966, IF YOU ARE ABLE TO FURNISH EVIDENCE OF THE AMOUNTS PAID FOR MEALS IN GOVERNMENT DINING HALLS CONSIDERATION WILL BE GIVEN TO YOUR CLAIM FOR REFUND OF THE AMOUNTS SO PAID.