B-167465, AUG. 21, 1969

B-167465, AUG. 21, 1969

MILITARY - SUBSISTENCE DECISION TO NAVY MEMBER SUSTAINING DISALLOWANCE OF CLAIM FOR SUBSISTENCE (SEPARATE RATIONS). IN ABSENCE OF EVIDENCE AFFIRMATELY SHOWING THAT A MILITARY MEMBER'S APPLICATION FOR PERMISSION TO RATION SEPARATELY WAS APPROVED BY COMMANDING OFFICER, SUBSISTENCE MAY NOT BE PAID.

TO ROBERT L. HILL, ABH1, USN, 4593694:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 19, 1969, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD APRIL 28, 1967, THROUGH DECEMBER 31, 1967, WHICH CLAIM WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 25, 1968. THAT DISALLOWANCE WAS BASED ON THE FACT THAT RECORDS ON FILE IN THIS OFFICE FAIL TO SHOW THAT PROPER ORDERS WERE ISSUED ESTABLISHING THAT YOU HAD BEEN AUTHORIZED BY APPROPRIATE AUTHORITY TO RATION SEPARATELY.

SECTION 402 (B) OF TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS TO AN ENLISTED MEMBER OF THE ARMED FORCES UNDER CERTAIN PRESCRIBED CONDITIONS, INCLUDING INSTANCES "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' PARAGRAPH A 4404 (7), BUREAU OF NAVAL PERSONNEL MANUAL, CHANGE 10, 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 ON WHICH THE MEMBER'S REQUEST IS APPROVED.

UNDER THE LAW AND REGULATIONS MENTIONED ABOVE YOUR ENTITLEMENT TO A SEPARATE RATION ALLOWANCE FOR THE PERIOD CLAIMED IS DEPENDENT UPON A SHOWING THAT PRIOR TO OR AT THE BEGINNING OF THE PERIOD INVOLVED, YOU WERE IN FACT AUTHORIZED TO MESS SEPARATELY BY APPROPRIATE AUTHORITY. WHILE A COMMUNICATION FROM THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, LOS ALAMITOS, CALIFORNIA, TO THE NAVY FINANCE CENTER, DATED AUGUST 1, 1968, INDICATED THAT YOU WERE VERBALLY AUTHORIZED TO MESS SEPARATELY ON APRIL 28, 1967, IN A LETTER DATED MARCH 17, 1969, TO THIS OFFICE, THE COMMANDING OFFICER AT THE LOS ALAMITOS AIR STATION STATED THAT:

"WHEN PETTY OFFICER HILL REPORTED TO THIS COMMAND ON 28 APRIL 1967 HE WAS GRANTED BAQ BY REASON OF DEPENDENTS IN THE AREA AND AN APPLICATION FOR NAVAL HOUSING AT LONG BEACH WAS ENDORSED BY THIS COMMAND. ALSO, MEMBER WAS PAID DLA AND TRAVEL FOR HIMSELF AND ONE DEPENDENT IN MAY 1967. THESE FACTS ARE CONSIDERED TO BE SUFFICIENT EVIDENCE THAT SUBJECT MEMBER WAS AUTHORIZED TO MESS SEPARATELY AND SUBSIST WITH HIS DEPENDENTS.'

THAT STATEMENT EXPRESSES NOTHING MORE THAN THE COMMANDING OFFICER'S BELIEF AS TO REASONS WHY YOU MAY HAVE RECEIVED VERBAL AUTHORITY TO RATION SEPARATELY WHEN YOU ARRIVED AT LOS ALAMITOS IN APRIL 1967.

THE AVAILABLE EVIDENCE SUBMITTED IN SUPPORT OF YOUR CLAIM SUGGESTS THAT YOU APPLIED FOR COMMUTED RATIONS ON APRIL 28, 1967. HOWEVER, THERE IS NOTHING FROM AN OFFICIAL SOURCE AFFIRMATIVELY SHOWING THAT AN APPLICATION BY YOU FOR PERMISSION TO RATION SEPARATELY WAS APPROVED BY THE COMMANDING OFFICER PRIOR TO JANUARY 1, 1968. WE HAVE NO EVIDENCE THAT ACTION HAS BEEN TAKEN TO ISSUE CONFIRMATORY WRITTEN ORDERS AS IS NORMALLY DONE IN SITUATIONS WHERE VERBAL ORDERS HAVE BEEN GIVEN.

IN THE CIRCUMSTANCES, WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 25, 1968, IS SUSTAINED.