B-193995.OM, AUG 10, 1979

B-193995.OM, AUG 10, 1979

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF CAPTAIN DENNIS M. BUCKOVETZ, USMC, FOR PAYMENT OF PER DIEM WHILE ON TEMPORARY ADDITIONAL DUTY AT KADENA AB, OKINAWA, JAPAN.

CAPTAIN BUCKOVETZ' TEMPORARY ADDITIONAL DUTY BEGAN JULY 20, 1976 AND WAS COMPLETED SEPTEMBER 25, 1976. HE OBTAINED A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS IN ACCORDANCE WITH PARAGRAPH M4451 OF THE JOINT TRAVEL REGULATIONS. BY MEMORANDUM ENDORSEMENT DATED SEPTEMBER 16, 1976 TO CAPTAIN BUCKOVETZ' ORDERS, IT WAS STATED THAT FROM JULY 20, 1976 THROUGH AUGUST 5, 1976 NO GOVERNMENT MESS FACILITIES WERE AVAILABLE AT NAF, KADENA. EFFECTIVE AUGUST 6, 1976 THROUGH THE END OF THE DEPLOYMENT CAPTAIN BUCKOVETZ WAS AUTHORIZED TO SUBSIST AT THE SAC AIRMAN'S DINING FACILITY. THE BILLETING MANAGER AT KADENA AB HAS STATED, HOWEVER, THAT GOVERNMENT MESS FACILITIES WERE NOT AVAILABLE DURING THE PERIOD OF TEMPORARY ADDITIONAL DUTY.

PARAGRAPH M4451-1 PROVIDES THAT AVAILABLE GOVERNMENT MESS FACILITIES WILL BE USED BY MEMBERS IN A TRAVEL STATUS TO THE MAXIMUM EXTENT POSSIBLE. PARAGRAPH M4451-4 (CHANGE 285, EFFECTIVE AUGUST 10, 1976) PROVIDES THAT THE STATEMENT OF THE MEMBER AS TO THE UTILIZATION, AS DISTINGUISHED FROM AVAILABILITY, OF GOVERNMENT MESS AND OFFICERS' OR ENLISTED OPEN MESS FOR THOSE AREAS LISTED IN APPENDIX A, FOOTNOTE 39, SHALL SUPPORT PAYMENT OF PER DIEM ALLOWANCES FOR ANY PERIOD OF TEMPORARY DUTY AT A PLACE WHERE THE NONAVAILABILITY OF GOVERNMENT MESS, OFFICERS' OR ENLISTED OPEN MESS FOR THOSE AREAS LISTED IN APPENDIX A, FOOTNOTE 39, CAN BE ASCERTAINED BY REFERENCE TO A PUBLICATION ISSUED BY THE UNIFORMED SERVICE CONCERNED. JAPAN IS LISTED IN APPENDIX A, FOOTNOTE 39. ADDITIONALLY, AIR FORCE REGULATION 35-9 SHOWS THAT A GOVERNMENT MESS FOR OFFICERS ON TEMPORARY DUTY AT KADENA AB WAS NOT AVAILABLE FOR THE PERIOD CLAIMED.

SINCE THE RECORD DOES NOT CLEARLY ESTABLISH THE AVAILABILITY/ NONAVAILABILITY OF A GOVERNMENT MESS, THE EFFECT ON M4451-4 OF THE AUTHORIZATION TO SUBSIST AT THE SAC AIRMAN'S DINING FACILITY AT KADENA AB CLOUDS THE ISSUE OF ENTITLEMENT. ACCORDINGLY, THE MATTER FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

IT IS WORTH NOTING THAT THERE ARE APPROXIMATELY 25 SIMILAR CLAIMS RETAINED BY THE MARINE CORPS FINANCE CENTER TO BE SETTLED IN ACCORDANCE WITH THE DECISION RENDERED IN THE PRESENT CLAIM. ADDITIONALLY, THE OFFICE OF SPECIAL INVESTIGATIONS IS INTERESTED IN "SEVERAL" CLAIMS THAT HAD PREVIOUSLY BEEN SUBMITTED TO NAVY FINANCE OFFICERS WITHOUT REFERENCE TO THE AVAILABILITY OF MESS FACILITIES AT THE SAC AIRMAN'S DINING FACILITY. THE NAVY PAID THOSE CLAIMS ON THE BASIS OF PUBLISHED INFORMATION THAT MESS FACILITIES WERE NOT AVAILABLE.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. IN JULY 1976, CAPTAIN BUCKOVETZ WAS A MEMBER OF ATTACK SQUADRON 332, 1ST MARINE AIRCRAFT WING, AT THE MARINE CORPS AIR STATION, IWAKUNI, JAPAN. HE AND 24 OTHER OFFICERS OF HIS UNIT WERE ORDERED TO REPORT TO KADENA AIR BASE (AB), OKINAWA, JAPAN, ON JULY 20, 1976, FOR TEMPORARY DUTY INCIDENT TO A ROUTINE SQUADRON DEPLOYMENT. UPON ARRIVING AT KADENA AB, THE SQUADRON MEMBERS WERE ASSIGNED BILLETS AT THE VISITING OFFICERS' QUARTERS, LOCATED IMMEDIATELY ADJACENT TO THE OFFICERS' OPEN MESS (OR OFFICERS' CLUB) ON THE FAR SOUTH SIDE OF THE INSTALLATION. THE SQUADRON'S HANGAR AND OPERATIONAL AREA AT KADENA AB WERE LOCATED OVER 4 MILES AWAY FROM THESE ASSIGNED BILLETS, ON THE NORTH SIDE OF AIRCRAFT RUNWAYS DIVIDING THE INSTALLATION. THE NORTH SIDE OF KADENA AB WAS PRIMARILY RESERVED FOR USE BY ELEMENTS OF THE AIR FORCE'S STRATEGIC AIR COMMAND, AND WAS APPARENTLY REFERRED TO LOCALLY AS THE "SAC" SIDE OF THE BASE.

IN 1976 THERE WERE 4 MESS HALLS FOR AIR FORCE ENLISTED PERSONNEL AT KADENA AB. THREE OF THESE WERE LOCATED ON THE SOUTH SIDE OF THE BASE, AND THE FOURTH - THE SAC AIRMEN'S DINING HALL - WAS ON THE NORTH SIDE ABOUT 1 MILE DISTANT FROM THE HANGAR USED FOR FLIGHT OPERATIONS BY ATTACK SQUADRON 332 WHILE DEPLOYED AT KADENA AB. THESE 4 ENLISTED MEN'S DINING HALLS WERE GOVERNMENT MESSING FACILITIES. THE KADENA AB OFFICERS' CLUB, WHERE THE OFFICERS OF ATTACK SQUADRON 332 EVIDENTLY PURCHASED MOST OF THEIR MEALS, WAS A NON-APPROPRIATED FUND ACTIVITY AND DID NOT CONSTITUTE A GOVERNMENT MESSING FACILITY; NO GOVERNMENT MESS EXISTED AT KADENA AB FOR THE EXCLUSIVE USE OF OFFICER PERSONNEL.

IT IS INDICATED THAT AT ABOUT THE TIME OF ATTACK SQUADRON 332'S DEPLOYMENT, THE COMMANDER OF THE 1ST MARINE AIRCRAFT WING AT IWAKUNI, IN AN EFFORT TO REDUCE EXPENDITURES FOR OFFICIAL TRAVEL, ASKED AIR FORCE AUTHORITIES AT KADENA AB TO GRANT MARINE CORPS OFFICERS MESSING PRIVILEGES AT THE KADENA AB ENLISTED MEN'S DINING HALLS, SO THAT THE OFFICERS' PER DIEM RATES COULD BE REDUCED. BY LETTER DATED AUGUST 6, 1976, THE VICE COMMANDER OF THE AIR FORCE'S 18TH TACTICAL FIGHTER WING AT KADENA AB REPLIED, STATING IN PERTINENT PART THAT THE AIR FORCE WOULD "PERMIT USMC AIRCREWS ON TAD TO MESS IN THE AIRMAN'S DINING HALL."

THEREAFTER, BY COMMUNICATION DATED SEPTEMBER 14, 1976, FROM THE 1ST MARINE AIRCRAFT WING, CAPTAIN BUCKOVETZ'S SQUADRON WAS INFORMED THAT UNDER THE POLICY "WHICH ALLOWED OFFICERS OF DEPLOYED MARINE UNITS TO SUBSIST IN THE SAC AIRMAN'S DINING FACILITY WHILE IN A DUTY STATUS" THE SQUADRON'S TEMPORARY ADDITIONAL DUTY ORDERS WERE TO BE ENDORSED TO REFLECT GOVERNMENT MESSING AS BEING AVAILABLE TO SQUADRON MEMBERS FROM AUGUST 6, 1976, THROUGH THE END OF THE DEPLOYMENT PERIOD. THE ORDERS WERE SO ENDORSED ON SEPTEMBER 16, 1976.

ATTACK SQUADRON 332 RETURNED TO THE MARINE CORPS AIR STATION, IWAKUNI, FROM ITS DEPLOYMENT AT KADENA AB ON SEPTEMBER 25, 1976. IN A TRAVEL VOUCHER DATED OCTOBER 8, 1976, CAPTAIN BUCKOVETZ WAS CREDITED WITH PER DIEM FOR THE PERIOD JULY 20-AUGUST 5, 1976, AT THE RATE PRESCRIBED FOR TEMPORARY DUTY PERFORMED WHERE AN OFFICERS' OPEN MESS BUT NOT A GOVERNMENT MESS WAS AVAILABLE. HOWEVER, CREDIT FOR PER DIEM FOR THE PERIOD AUGUST 6- SEPTEMBER 25, 1976, WAS REDUCED BY APPROXIMATELY $10 PER DAY ON THE BASIS OF THE ENDORSEMENT TO THE TRAVEL ORDERS INDICATING THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO HIM FROM AND AFTER AUGUST 6.

CAPTAIN BUCKOVETZ PROTESTED, CONTENDING THAT THE ENDORSEMENT TO THE ORDERS HAD BEEN FACTUALLY INCORRECT. HIS PROTEST PRODUCED CONFLICTING STATEMENTS FROM AIR FORCE AUTHORITIES AT KADENA AB CONCERNING THE POLICY OF ALLOWING MARINE CORPS OFFICERS TO USE THE ENLISTED MESS HALLS AT THE BASE, AS IS EVIDENCED BY THE FOLLOWING MATTERS OF RECORD IN THE FILE:

1. ON DECEMBER 3, 1976, THE VICE COMMANDER, 18TH COMBAT SUPPORT GROUP, KADENA AB, STATED THAT EFFECTIVE JANUARY 8, 1976, A POLICY WAS ADOPTED ALLOWING ALL VISITING MARINE CORPS OFFICERS TO USE THE "AIRMEN DINING HALLS." HE FURTHER STATED, "THE IMPORTANT FACTOR IS THAT THESE FACILITIES ARE AVAILABLE AND THUS THE PER DIEM RATE IS REDUCED, WHETHER OR NOT THE FACILITIES ARE UTILIZED."

2. ON DECEMBER 5, 1976, THE KADENA AB FOOD SERVICES OFFICER, RESPONSIBLE FOR THE OPERATION OF THE 4 ENLISTED DINING HALLS, STATED HIS UNDERSTANDING THAT THE SAC AIRMAN'S DINING HALL WAS THE ONLY ENLISTED MESS HALL MADE AVAILABLE TO THE OFFICERS OF ATTACK SQUADRON 332, AND THAT THOSE OFFICERS WERE NOT AUTHORIZED ENTRY UNLESS THEY WERE IN UNIFORM AND AT A TIME THEY WERE REQUIRED TO BE ON THE "SAC" SIDE OF KADENA AB DURING THEIR SCHEDULED DUTY HOURS.

3. ON JANUARY 11, 1977, THE KADENA AB BILLETING MANAGER, RESPONSIBLE FOR ISSUING STATEMENTS CONCERNING THE AVAILABILITY OF GOVERNMENT QUARTERS AND MESSING FACILITIES, CERTIFIED THAT A GOVERNMENT MESS WAS NOT AVAILABLE TO CAPTAIN BUCKOVETZ FOR THE ENTIRE PERIOD FROM JULY 20 TO SEPTEMBER 25, 1976.

4. ON APRIL 8, 1977, HEADQUARTERS, 18TH COMBAT SUPPORT GROUP, KADENA AB, SENT A MESSAGE TO THE AIR FORCE MILITARY PERSONNEL CENTER, RANDOLPH AIR FORCE BASE, TEXAS, REQUESTING THAT AIR FORCE REGULATION (AFR) 35-9, "DIRECTORY OF FACILITIES: GOVERNMENT QUARTERS AND MESS, OR OFFICERS' OPEN MESS," BE AMENDED BY ADDING THE NOTATION, "EFFECTIVE 6 AUGUST 1976, GOVERNMENT MESS IS AVAILABLE TO TDY OFFICERS ASSIGNED TO THE NORTH/SAC SIDE OF KADENA AB, JAPAN."

5. IN A LETTER DATED APRIL 21, 1977, THE COMMANDER, 18TH COMBAT SUPPORT GROUP, KADENA AB, INFORMED MARINE CORPS AUTHORITIES OF THE APRIL 8, 1977 "MESSAGE CHANGE" TO AFR 35-9. HE ADDED, "SINCE WE HAVE RECEIVED NO INFORMATION TO THE CONTRARY FROM AFMPC, RANDOLPH AFB, TEXAS/DPMSPR, IT IS ASSUMED THAT THIS POLICY WAS EFFECTIVE 6 AUGUST 1976 AS STATED IN THE MESSAGE." IN ADDITION, HE STATED THAT THE BILLETING MANAGER HAD BEEN ADMONISHED TO "NOT ISSUE IMPRACTICABILITY OF MEAL STATEMENTS" TO MARINE CORPS PERSONNEL AT KADENA AB.

IN HIS CLAIM, CAPTAIN BUCKOVETZ STATES THAT, AS A MATTER OF FACT, BETWEEN JULY 20 AND SEPTEMBER 25, 1976, AIR FORCE AUTHORITIES FOLLOWED A SINGLE POLICY WITH RESPECT TO THE USE OF ENLISTED MESS HALLS AT KADENA AB BY THE OFFICERS OF HIS SQUADRON. OF THE 4 MESS HALLS, ONLY THE SAC AIRMAN'S DINING HALL WAS AVAILABLE FOR USE. THAT DINING HALL COULD BE USED BY AN OFFICER ONLY DURING HIS SCHEDULED DUTY HOURS, AND THEN ONLY WHEN HE WAS REQUIRED TO BE ON THE NORTH OR "SAC" SIDE OF KADENA AB IN THE PERFORMANCE OF HIS DUTIES. CAPTAIN BUCKOVETZ FURTHER STATES THAT HE WAS THEREFORE AUTHORIZED ENTRY TO THE SAC AIRMAN'S DINING HALL FOR NO MORE THAN 1 MEAL PER DAY. HOWEVER, HE FURTHER EXPLAINS THAT DUE TO A NUMBER OF FACTORS - INCLUDING THE HIGH TEMPO OF FLIGHT OPERATIONS, THE MEAL SCHEDULE OF THE MESS HALL, AND THE LIMITED MEANS OF TRANSPORTATION AVAILABLE BETWEEN HIS HANGAR AND THAT MESS HALL - HE WAS NOT ABLE TO USE THE SAC AIRMAN'S DINING HALL FOR EVEN 1 MEAL PER DAY, AS A PRACTICAL MATTER, AND CONSEQUENTLY HE HAD NEVER GONE THERE. HE STATES THAT THIS SITUATION HAD RETAINED CONSTANT THROUGHOUT THE PERIOD OF HIS SQUADRON'S DEPLOYMENT BETWEEN JULY 20 AND SEPTEMBER 25, 1976, AND THAT THERE HAD BEEN NO ANNOUNCED SUBSTANTIVE POLICY CHANGE ON AUGUST 6, 1976, OR AT ANY OTHER TIME. CAPTAIN BUCKOVETZ SUGGESTS THAT IF HIS LIMITED ACCESS TO THE SAC AIRMAN'S DINING HALL DURING THE ENTIRE DEPLOYMENT COULD PROPERLY BE INTERPRETED TO MEAN THAT A GOVERNMENT MESS WAS AVAILABLE TO HIM FOR ALL HIS MEALS, THEN THE GOVERNMENT SHOULD SEEK REIMBURSEMENT FOR EXCESS PER DIEM HE RECEIVED FOR THE PERIOD JULY 20-AUGUST 5, 1976. OTHERWISE, HE SUGGESTS, HE SHOULD BE ENTITLED TO CREDIT FOR ADDITIONAL PER DIEM FOR THE REMAINDER OF THE DEPLOYMENT COVERING THE PERIOD AUGUST 6-SEPTEMBER 25, 1976.

WE HAVE CONSISTENTLY EXPRESSED THE VIEW THAT A DETERMINATION CONCERNING THE AVAILABILITY OF GOVERNMENT MESS FACILITIES WHICH IS INCORPORATED IN A SERVICE MEMBER'S TRAVEL ORDERS, IS VALID IN THE ABSENCE OF EVIDENCE THAT SUCH DETERMINATION WAS FACTUALLY INCORRECT. SEE 44 COMP.GEN. 405 (1965); AND 37 COMP.GEN. 683 (1958). THUS, WE HELD THAT AN OFFICER, PLACED IN FIELD DUTY STATUS BY ORDERS, WAS NOT ENTITLED TO PER DIEM EVEN THOUGH HE DINED AT AN OFFICERS' CLUB, WHERE IT WAS INDICATED THAT HE COULD HAVE OBTAINED HIS MEALS AT A SEPARATE TABLE RESERVED FOR OFFICERS AT AN ENLISTED MEN'S MESS. B-145328, DECEMBER 10, 1971. ON THE OTHER HAND, WE HELD THAT A GROUP OF OFFICERS ON TEMPORARY DUTY WERE ENTITLED TO ENHANCED PER DIEM ALLOWANCES DESPITE AN ESTABLISHED POLICY WHICH WOULD HAVE REQUIRED THEM TO SUBSIST AT ENLISTED FIELD MESSES, WHERE IT WAS SHOWN THAT AN ENLISTED MESS WAS NOT ACTUALLY MADE AVAILABLE TO THEM AND THEY HAD NO REAL ALTERNATIVE BUT TO PURCHASE THEIR MEALS AT AN OFFICERS' CLUB. COMP.GEN. 740 (1965). IN ANY GIVEN CASE, THE AVAILABILITY OF GOVERNMENT FACILITIES IS TO BE DETERMINED ON THE BASIS OF THE FACTS RATHER THAN ON A SPECIFIC ADMINISTRATIVE AUTHORITATION OR CERTIFICATION, AND WHILE A CONTEMPERANEOUS AUTHORIZATION OR CERTIFICATION BY PROPER AUTHORITY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT CONCLUSIVE OF THE MATTER WHERE THE FACTS ARE OTHERWISE CLEARLY ESTABLISHED. B-178537, JULY 13, 1973; B-184504, APRIL 4, 1977.

IN THE PRESENT CASE, IT APPEARS THAT IN 1976 THE CONCERNED AIR FORCE AND MARINE CORPS COMMAND AUTHORITIES IN JAPAN ATTEMPTED TO FORMULATE A POLICY WHICH WOULD HAVE MADE THE 4 ENLISTED MESS HALLS AT KADENA AB AVAILABLE TO THE OFFICERS OF THE 1ST MARINE AIRCRAFT WING FOR ALL OF THEIR MEALS WHILE PERFORMING TEMPORARY DUTY THERE. HOWEVER, IT APPEARS THAT A CLEAR AND COHERENT POLICY ON THE SUBJECT WAS NOT ADOPTED AND MADE KNOWN TO THE MARINE OFFICERS CONCERNED PRIOR TO SEPTEMBER 25, 1976, AS IS EVIDENCED BY THE VARIOUS STATEMENTS CONCERNING THE MATTER. INSTEAD, IT IS EVIDENT THAT ACTUALLY THE MARINE CORPS OFFICERS HAD NO MORE THAN A LIMITED ACCESS TO ONE OF THE ENLISTED MESS HALLS AND COULD HAVE EATEN THERE AT MOST ONLY ON AN OCCASIONAL BASIS. WE THEREFORE CONCLUDE THAT THE SEPTEMBER 16, 1976 ENDORSEMENT TO CAPTAIN BUCKOVETZ' TRAVEL ORDERS INDICATING THAT A GOVERNMENT MESS WAS AVAILABLE TO HIM FOR ALL MEALS FROM AND AFTER AUGUST 6, 1976, IS CLEARLY ERRONEOUS IN FACT AND HENCE INVALID. WE NOTE ALSO THAT IN APRIL 1977 AIR FORCE COMMAND AUTHORITIES AT KADENA AB REQUESTED THAT AFR 35-9 BE CHANGED BY ADDING THE FOLLOWING NOTATION: "EFFECTIVE 6 AUGUST 1976, GOVERNMENT MESS IS AVAILABLE TO TDY OFFICERS ASSIGNED TO THE NORTH/SAC SIDE OF KADENA AB, JAPAN." HOWEVER, AIR FORCE OFFICIALS HAVING PRIMARY RESPONSIBILITY FOR THE REGULATION REPORTED TO YOU THAT THEY HAD NO RECORD OF SUCH REQUEST, AND THEY FURTHER ADVISED THAT THE SUGGESTED CHANGE WAS INADEQUATE AS WRITTEN, ESSENTIALLY FOR THE REASON THAT THEY JUDGED IT TO BE UNINTELLIGIBLE. IN ANY EVENT, EVEN IF THE REQUESTED REGULATORY CHANGE WERE NOW TO BE ADOPTED, IT WOULD BE FACTUALLY INCORRECT AND HENCE INVALID INSOFAR AS IT MIGHT BE INTERPRETED TO APPLY TO THE OFFICERS OF CAPTAIN BUCKOVETZ' SQUADRON DURING THE PERIOD FROM AUGUST 6 TO SEPTEMBER 25, 1976.

UNDER THE APPLICABLE REGULATIONS CITED BY YOU, AND IN LIGHT OF THE FACTS PRESENTED AND CAPTAIN BUCKOVETZ' STATEMENT THAT HE DID NOT USE A GOVERNMENT MESS AT KADENA AB DURING THE TIME IN QUESTION, WE CONCLUDE THAT HE IS ENTITLED TO ADDITIONAL PER DIEM FOR THE PERIOD AUGUST 6 SEPTEMBER 25, 1976, COMPUTED ON THE BASIS THAT AN OFFICERS' OPEN MESS, BUT NOT A GOVERNMENT MESS, WAS AVAILABLE TO HIM. SETTLEMENT MAY ISSUE ACCORDINGLY.

PLEASE NOTE THAT THE CLAIMANT'S CURRENT ADDRESS IS AS FOLLOWS:

CAPTAIN DENNIS M. BUCKOVETZ, USMC XXX-XX-XXXX NNHA-3 3RD MARINE AIR WING FLEET MARINE FORCE PACIFIC MCAS EL TORO SANTA ANA, CALIFORNIA 92709 ATTACHMENT