B-168994, MAR. 10, 1970

B-168994: Mar 10, 1970

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WAS PROPER UNDER APPLICABLE REGULATIONS WHICH PROVIDE SEPARATE RATION ALLOWANCE IS NOT PAYABLE UNLESS AUTHORIZED BY PROPER AUTHORITY AT OR PRIOR TO COMMENCEMENT OF PERIOD INVOLVED. WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING PERMISSION TO MESS SEPARATELY WAS GRANTED PRIOR TO DATE OF ORDERS ONLY IF IT IS SHOWN WRITTEN ORDERS WERE IN CONFIRMATION OF TIMELY SPECIFIC VERBAL ORDERS. THEN ONLY IF CONFIRMATORY ORDERS WERE ISSUED WITHIN COMPARATIVELY SHORT PERIOD AFTER VERBAL ORDERS. CONFIRMATORY ORDERS WERE ISSUED MORE THAN 11 MONTHS AFTER PURPORTED VERBAL ORDERS. TO SFC HENRY MENZIE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 8. YOUR CLAIM WAS DISALLOWED BECAUSE OF LACK OF PROOF THAT YOU WERE AUTHORIZED TO MESS SEPARATELY DURING THE PERIOD INVOLVED.

B-168994, MAR. 10, 1970

RATION COMMUTATION PAYMENTS--AUTHORIZATION--EVIDENCE SETTLEMENT DISALLOWING MEMBER'S CLAIM FOR SEPARATE RATIONS ALLOWANCE FROM SEPT. 7, 1968 TO AUG. 6, 1969 UNDER CONFIRMATORY ORDERS DATED AUG. 1969, WAS PROPER UNDER APPLICABLE REGULATIONS WHICH PROVIDE SEPARATE RATION ALLOWANCE IS NOT PAYABLE UNLESS AUTHORIZED BY PROPER AUTHORITY AT OR PRIOR TO COMMENCEMENT OF PERIOD INVOLVED. WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING PERMISSION TO MESS SEPARATELY WAS GRANTED PRIOR TO DATE OF ORDERS ONLY IF IT IS SHOWN WRITTEN ORDERS WERE IN CONFIRMATION OF TIMELY SPECIFIC VERBAL ORDERS, AND THEN ONLY IF CONFIRMATORY ORDERS WERE ISSUED WITHIN COMPARATIVELY SHORT PERIOD AFTER VERBAL ORDERS, WHEREAS IN SUBJECT CLAIM, CONFIRMATORY ORDERS WERE ISSUED MORE THAN 11 MONTHS AFTER PURPORTED VERBAL ORDERS.

TO SFC HENRY MENZIE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 8, 1970, AND RECEIVED HERE JANUARY 26, 1970, IN EFFECT REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF DECEMBER 17, 1969, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE RATIONS ALLOWANCE FOR THE PERIOD SEPTEMBER 7, 1968, THROUGH AUGUST 6, 1969.

YOUR CLAIM WAS DISALLOWED BECAUSE OF LACK OF PROOF THAT YOU WERE AUTHORIZED TO MESS SEPARATELY DURING THE PERIOD INVOLVED. SECTION 402(B)(2) OF 37 U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED." SECTION 302 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, ISSUED UNDER AUTHORITY OF 37 U.S.C. 402(F), AUTHORIZES THE SECRETARY OF THE UNIFORMED SERVICES CONCERNED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS "NOT INCONSISTENT HEREWITH," AS MIGHT BE DEEMED NECESSARY OR DESIRABLE FOR CARRYING OUT THE APPLICABLE PROVISIONS OF LAW RELATING TO SUCH ALLOWANCE.

THE PRESCRIBED REGULATIONS WHICH WERE IN EFFECT ON SEPTEMBER 7, 1968, WERE CONTAINED IN CHAPTER 4, SECTION III OF ARMY REGULATION 37 125 (1967 ED.), AND SECTION D, CHAPTER 1, PART THREE OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), PARAGRAPH 30131A OF WHICH PROVIDES:

"AUTHORIZATION TO MESS SEPARATELY CANNOT COVER RETROACTIVE PERIODS. HOWEVER, THIS DOES NOT PREVENT PAYMENT OF BAS FROM THE TIME OF AN ORAL AUTHORIZATION BY PROPER AUTHORITY IF THE ORAL APPROVAL OF THE MEMBER'S REQUEST IS PROMPTLY CONFIRMED IN WRITING."

UNDER THE CITED STATUTORY PROVISIONS AND REGULATIONS, THE SEPARATE RATION ALLOWANCE IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT AN ENLISTED MEMBER WAS AUTHORIZED BY PROPER AUTHORITY TO MESS SEPARATELY AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED. WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED PRIOR TO THE DATE OF THE ORDERS 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 THEN ONLY IF SUCH CONFIRMATORY ORDERS WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF VERBAL ORDERS.

THE RECORD BEFORE THIS OFFICE INDICATES THAT ON OR ABOUT SEPTEMBER 6, 1968, YOU SUBMITTED A REQUEST FOR PERMISSION TO RATION SEPARATELY TO YOUR THEN UNIT, THE U. S. ARMY COMBAT DEVELOPMENTS COMMAND EXPERIMENTATION COMMAND, AND THAT BEFORE THIS REQUEST COULD BE ACTED UPON, YOU WERE TRANSFERRED TO YOUR PRESENT UNIT, HEADQUARTERS COMPANY, U. S. ARMY TRAINING CENTER. IT APPEARS THAT UPON TRANSFER, YOU FAILED TO MAKE FURTHER APPLICATION FOR SEPARATE RATIONS WITH YOUR NEW UNIT. USATC UNIT ORDER NO. 100, DATED AUGUST 7, 1969, SUBSEQUENTLY CORRECTED BY UNIT ORDER NO. 109, DATED AUGUST 19, 1969, AND UNIT ORDER NO. 111, DATED AUGUST 21, 1969, PURPORTED TO CONFIRM VERBAL ORDERS, DATED SEPTEMBER 7, 1968, PERMITTING YOU TO MESS SEPARATELY EFFECTIVE THAT DATE.

THE AUTHORIZATION IN AUGUST 1969, CONFIRMING VERBAL ORDERS OF SEPTEMBER 7, 1968, WAS ISSUED MORE THAN 11 MONTHS AFTER THE PURPORTED ISSUANCE OF VERBAL ORDERS AND THERE IS NO REPORT OF THE FACTS AND CIRCUMSTANCES SURROUNDING EITHER THE ISSUANCE OF VERBAL ORDERS IN LIEU OF WRITTEN ORDERS OR AN EXPLANATION FOR THE DELAY IN CONFIRMING SUCH VERBAL ORDERS. INFERENCE PROPERLY MAY BE DRAWN FROM THE STATEMENT DATED AUGUST 14, 1969, FROM THE COMMANDING OFFICER WHO SIGNED THE CONFIRMATORY ORDERS, THAT THE VERBAL ORDERS ACTUALLY WERE FICTITIOUS. THEREFORE, BASED ON THE RECORD BEFORE US, THE ORDERS ISSUED IN AUGUST 1969, MAY NOT BE ACCEPTED AS PROVIDING A LEGAL BASIS FOR PAYMENT OF SEPARATE RATIONS ALLOWANCE FOR THE PERIOD CLAIMED. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 17, 1969, IS SUSTAINED.

WITH RESPECT TO YOUR INQUIRY AS TO WHETHER THERE IS ANY OTHER GOVERNMENT AGENCY TO WHICH YOU CAN APPEAL, YOU ARE ADVISED THAT DECISIONS OF THIS OFFICE ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE 31 U.S.C. 74. HOWEVER, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF 10 U.S.C. 1552, WHICH AUTHORIZE THE SECRETARY OF THE ARMY, THROUGH THE PROCEDURE THERE PRESCRIBED, TO CORRECT A MILITARY RECORD WHEN THE SECRETARY CONSIDERS SUCH ACTION NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE." SUBSECTION (C) PROVIDES FOR THE PAYMENT OF THE AMOUNT FOUND DUE AS A RESULT OF SO CORRECTING A MILITARY RECORD. SEE IN THIS CONNECTION ARMY REGULATIONS 15-185.