B-170487, NOV. 3, 1970

B-170487: Nov 3, 1970

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YOU WERE DIRECTED TO REPORT FOR TEMPORARY ACTIVE DUTY ON APRIL 14. IT APPEARS THAT YOU WERE RELEASED FROM THAT DUTY ON AUGUST 28. PROVIDES THAT THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING TO BE FURNISHED ANNUALLY TO AN ENLISTED MEMBER OF THE ARMED SERVICES AND MAY PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID TO SUCH A MEMBER IF CLOTHING IS NOT SO FURNISHED TO HIM. AN ENLISTED MEMBER OF A RESERVE COMPONENT ORDERED TO ACTIVE DUTY FOR 6 MONTHS OR LESS IS NOT ENTITLED TO A CLOTHING MONETARY ALLOWANCE. NO PROVISION WAS MADE THEREIN FOR AN INITIAL CASH ALLOWANCE FOR CHIEF PETTY OFFICERS OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 6 MONTHS. THIS OFFICE IS NOT AWARE OF ANY OTHER REGULATION PROVIDING AN INITIAL CASH ALLOWANCE FOR CHIEF PETTY OFFICERS ORDERED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 6 MONTHS.

B-170487, NOV. 3, 1970

CLOTHING ALLOWANCE SUSTAINING DISALLOWANCE OF CLAIM FOR CLOTHING ALLOWANCE. IN ABSENCE OF ANY REGULATION THAT WOULD PERMIT PAYMENT OF AN INITIAL CLOTHING ALLOWANCE FOR A SENIOR CHIEF YEOMAN, U.S. NAVAL RESERVE, CALLED TO ACTIVE DUTY FOR PERIOD OF LESS THAN 6 MONTHS, NO BASIS EXISTS FOR PAYMENT OF THE CLAIM.

TO MRS. HELENE EDMONDSON:

YOUR LETTER OF JUNE 25, 1970, REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 24, 1970, WHICH DISALLOWED YOUR CLAIM FOR SPECIAL INITIAL CLOTHING MONETARY ALLOWANCE INCIDENT TO YOUR REPORTING FOR ACTIVE DUTY ON APRIL 14, 1969, AS SENIOR CHIEF YEOMAN, UNITED STATES NAVAL RESERVE.

THE RECORD SHOWS THAT PURSUANT TO ORDERS DATED APRIL 9, 1969, AS MODIFIED, YOU WERE DIRECTED TO REPORT FOR TEMPORARY ACTIVE DUTY ON APRIL 14, 1969, TO SERVE ON ACTIVE DUTY FOR A PERIOD OF LESS THAN 6 MONTHS, AND IT APPEARS THAT YOU WERE RELEASED FROM THAT DUTY ON AUGUST 28, 1969.

SECTION 418 OF TITLE 37, U.S. CODE, PROVIDES THAT THE PRESIDENT MAY PRESCRIBE THE QUANTITY AND KIND OF CLOTHING TO BE FURNISHED ANNUALLY TO AN ENLISTED MEMBER OF THE ARMED SERVICES AND MAY PRESCRIBE THE AMOUNT OF A CASH ALLOWANCE TO BE PAID TO SUCH A MEMBER IF CLOTHING IS NOT SO FURNISHED TO HIM.

IN EXECUTIVE ORDER 10113, DATED FEBRUARY 24, 1950, THE PRESIDENT DELEGATED TO THE SECRETARY OF DEFENSE THE FUNCTION RELATIVE TO PRESCRIBING THE QUANTITY AND KIND OF CLOTHING THAT SHALL BE FURNISHED TO ENLISTED MEMBERS OF THE ARMED SERVICES AND RELATIVE TO PRESCRIBING THE AMOUNT OF CASH CLOTHING ALLOWANCE TO BE PAID SUCH ENLISTED MEMBERS IN LIEU OF CLOTHING.

PURSUANT TO AUTHORITY DELEGATED TO THE SECRETARY OF DEFENSE UNDER EXECUTIVE ORDER 10113, THE SECRETARY OF DEFENSE PRESCRIBED CERTAIN POLICIES AND REGULATIONS WITH RESPECT TO ISSUANCE OF CLOTHING, AND PAYMENT OF CASH ALLOWANCES IN LIEU OF FURNISHING CLOTHING IN KIND, BY DEPARTMENT OF DEFENSE DIRECTIVE NO. 1338.5 DATED JUNE 25, 1962, AND THAT OFFICIAL THERE DELEGATED TO EACH OF THE ARMED SERVICES UNDER HIS JURISDICTION THE AUTHORITY TO ISSUE APPROPRIATE INSTRUCTIONS TO IMPLEMENT THE POLICIES AND REGULATIONS THERE PRESCRIBED.

PARAGRAPH 80245 OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL GOVERNING CLOTHING MONETARY ALLOWANCES FOR ENLISTED MEMBERS OF THE ARMED SERVICES PROVIDES:

"A. ACTIVE DUTY FOR PERIODS OF 6 MONTHS OR LESS. AN ENLISTED MEMBER OF A RESERVE COMPONENT ORDERED TO ACTIVE DUTY FOR 6 MONTHS OR LESS IS NOT ENTITLED TO A CLOTHING MONETARY ALLOWANCE, EXCEPT FOR AN INITIAL CASH ALLOWANCE FOR CERTAIN WOMEN'S APPAREL AUTHORIZED BY INDIVIDUAL SERVICE DIRECTIVES."

BUPERSINST 1020.11E, DATED JUNE 27, 1967, IN EFFECT WHEN YOU REPORTED FOR ACTIVE DUTY UNDER THE ABOVE-CITED ORDERS, PROVIDED FOR SPECIAL INITIAL CLOTHING MONETARY ALLOWANCES FOR CHIEF PETTY OFFICERS OF THE NAVAL RESERVE, UPON REPORTING FOR ACTIVE DUTY FOR A PERIOD IN EXCESS OF 6 MONTHS. NO PROVISION WAS MADE THEREIN FOR AN INITIAL CASH ALLOWANCE FOR CHIEF PETTY OFFICERS OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 6 MONTHS, AND THIS OFFICE IS NOT AWARE OF ANY OTHER REGULATION PROVIDING AN INITIAL CASH ALLOWANCE FOR CHIEF PETTY OFFICERS ORDERED TO ACTIVE DUTY FOR A PERIOD OF LESS THAN 6 MONTHS.

YOU INDICATE IN YOUR LETTER THAT YOU REALIZE THAT YOU ARE NOT ENTITLED TO AN INITIAL CASH CLOTHING ALLOWANCE UNDER THE APPLICABLE REGULATIONS. HOWEVER, IN VIEW OF THE RECOMMENDATION BY THE NAVY DEPARTMENT THAT YOUR CLAIM BE APPROVED, YOU SUGGEST THAT CONSIDERATION SHOULD BE GIVEN TO THE CIRCUMSTANCES IN YOUR CASE, INCLUDING THE CIRCUMSTANCE THAT YOU HAVE NEVER RECEIVED AN INITIAL CASH CLOTHING ALLOWANCE AS A CHIEF PETTY OFFICER AND MAY BE THE ONLY CHIEF PETTY OFFICER WHO HAS NOT RECEIVED SUCH ALLOWANCE.

THE AUTHORITY OF THIS OFFICE TO ALLOW CLAIMS IS LIMITED TO SITUATIONS WHERE THE LAW AND IMPLEMENTING REGULATIONS, IF ENTITLEMENT IS DEPENDENT UPON IMPLEMENTING REGULATIONS, AUTHORIZE PAYMENT OF THE ITEM CLAIMED. THE ABSENCE OF A STATUTE OR REGULATION HAVING THE FORCE OF LAW AUTHORIZING PAYMENT OF A CLAIM, THIS OFFICE HAS NO DISCRETION IN THE MATTER AND MUST DISALLOW THE CLAIM. SINCE WE KNOW OF NO LAW OR REGULATION AUTHORIZING PAYMENT OF YOUR CLAIM IN THE CIRCUMSTANCES INVOLVED, THE DISALLOWANCE THEREOF BY THE CLAIMS DIVISION OF THIS OFFICE MUST BE SUSTAINED.