B-35985, SEPTEMBER 20, 1943, 23 COMP. GEN. 207

B-35985, SEPTEMBER 20, 1943, 23 COMP. GEN. 207

QUARTERS AND SUBSISTENCE ALLOWANCES - NAVY ENLISTED MEN - DURING PERIOD OF MISSING IN ACTION SECTION 10 OF PAY READJUSTMENT ACT OF 1942, AND THE REGULATIONS ISSUED THEREUNDER, AUTHORIZING ALLOWANCES FOR ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND, CONTEMPLATE PAYMENT OF QUARTERS AND SUBSISTENCE ALLOWANCES WHERE THE DUTY ASSIGNMENT OF THE MAN MAKES IMPRACTICAL THE FURNISHING OF RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED, BUT NEITHER THE SAID ACT NOR REGULATIONS GIVES TO AN ENLISTED MAN THE RIGHT TO PAYMENT OF SUCH ALLOWANCES MERELY ON A SHOWING THAT QUARTERS AND SUBSISTENCE WERE NOT FURNISHED HIM. THE ALLOWANCES AUTHORIZED UNDER SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AND REGULATIONS ISSUED THEREUNDER, FOR ENLISTED MEN NOT FURNISHED QUARTERS OR RATIONS IN KIND MAY NOT BE PAID TO AN ENLISTED MAN OF THE NAVY DURING THE PERIOD HE WAS ABSENT FROM HIS SHIP IN A MISSING STATUS FOLLOWING ENEMY ACTION, IN THE ABSENCE OF A SHOWING THAT DURING SUCH PERIOD OF ABSENCE HE WAS IN A DUTY STATUS ENTITLING HIM TO THE ALLOWANCES OR THAT HE WAS AUTHORIZED AT THE BEGINNING OF SUCH ABSENCE TO RECEIVE THE SAID ALLOWANCES.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 20, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1943, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM ENSIGN L. A. SCHMIDT, SC V (G) USNR, DISBURSING OFFICER, U.S. NAVAL HOSPITAL, GREAT LAKES, ILLINOIS, DATED 15 JUNE 1943, WITH ACCOMPANYING ENDORSEMENTS RELATIVE TO THE RIGHT OF DELMAR D. WILEY, ARMY 3C, USN, TO SUBSISTENCE ALLOWANCE FOR THE PERIOD DURING WHICH HE WAS ABSENT FROM HIS SHIP IN A MISSING STATUS, FOLLOWING ACTION WITH THE ENEMY.

YOUR DECISION IS REQUESTED AS TO WHETHER WILEY IS ENTITLED TO THE PER DIEM ALLOWANCES FOR QUARTERS AND SUBSISTENCE UNDER TABLE I-B. SPECIAL OF EXECUTIVE ORDER 9206 OF 27 JULY 1942, WHILE ABSENT FROM HIS SHIP AND NOT IN A TRAVEL STATUS DURING THE PERIOD 24 AUGUST 1942 TO 4 APRIL 1943, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSED CORRESPONDENCE.

IN THIS CONNECTION YOUR FURTHER DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS IN THE ENCLOSURE, NAMELY, WHETHER OTHER ENLISTED MEN SIMILARLY SITUATED ARE ENTITLED TO CREDIT OF PER DIEM ALLOWANCES FOR QUARTERS AND SUBSISTENCE WHILE ABSENT FROM THEIR RESPECTIVE SHIPS OR STATIONS IN A MISSING STATUS, IRRESPECTIVE OF WHETHER THEY ARE LATER DECLARED TO BE DEAD OR ARE RESCUED AND RETURNED TO NAVAL JURISDICTION.

THE CIRCUMSTANCES SURROUNDING THE ABSENCE OF WILEY FROM HIS SHIP ARE SET FORTH IN A LETTER ADDRESSED TO THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, DATED JULY 1, 1943, IN PERTINENT PART, AS FOLLOWS:

1. RETURNED. THE SERVICE RECORD OF SUBJECT-NAMED MAN INDICATES THAT ON 24 AUGUST 1942, FOLLOWING ACTION WITH THE ENEMY, HE WAS DECLARED TO BE MISSING. IT IS FURTHER INDICATED THAT HE WAS A CREW MEMBER OF A PLANE WHICH WAS ON THAT DAY SHOT DOWN DURING ENEMY ACTION. ON 4 APRIL 1943 INFORMATION WAS RECEIVED THAT HE WAS SAFE ON CARTERET ISLAND AND THAT HE WAS RESCUED FROM THIS ISLAND ON OR ABOUT 10 APRIL 1943 AND REPORTED TO COMMANDER AIRCRAFT SERVICE UNIT 6 ON 24 APRIL 1943 FOR TEMPORARY DUTY.

SECTION 10 OF THE ACT OF JUNE 16, 1942, 56 STAT. 363, PROVIDES:

TO EACH ENLISTED MAN NOT FURNISHED QUARTERS OR RATIONS IN KIND THERE SHALL BE GRANTED, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN ALLOWANCE FOR QUARTERS AND SUBSISTENCE, THE VALUE OF WHICH SHALL DEPEND ON THE CONDITIONS UNDER WHICH THE DUTY OF THE MAN IS BEING PERFORMED, AND SHALL NOT EXCEED $5 PER DAY: * * *

EXECUTIVE ORDER 9206 OF JULY 27, 1942, PROMULGATED TO CARRY OUT THE PROVISIONS OF SECTION 10 OF THE ACT OF JUNE 16, 1942, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

REGULATIONS GOVERNING THE GRANTING OF ALLOWANCES FOR QUARTERS AND SUBSISTENCE TO ENLISTED MEN OF THE NAVY WHO ARE NOT FURNISHED QUARTERS OR RATIONS IN KIND. * * * MEN ON DUTY WHERE QUARTERS OR RATIONS IN KIND ARE NOT FURNISHED SHALL BE GRANTED DAILY ALLOWANCES AS FOLLOWS:

B.--- SPECIAL--- WHEN ASSIGNED (EXCEPT AS HEREAFTER PROVIDED) TO EUROPE, S.A., INDIA, AFRICA, AUSTRALIA, OR AT SUCH OTHER COUNTRY OR ISOLATED STATIONS AS DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR WHEN ABSENT FROM THEIR SHIPS ON TEMPORARY DUTY NOT INVOLVING TRAVEL. THEN FOLLOWS THE VALUE OF THE ALLOWANCES PRESCRIBED.

FROM THE ABOVE IT IS CLEAR THAT NEITHER THE ACT, NOR THE REGULATIONS ISSUED PURSUANT THERETO, GIVES TO AN ENLISTED MAN A RIGHT TO PAYMENT OF A MONEY ALLOWANCE FOR SUBSISTENCE AND QUARTERS MERELY ON A SHOWING THAT NONE WERE FURNISHED HIM. THE EVIDENT PURPOSE OF THE STATUTE IS TO PROVIDE FOR PAYMENT THEREOF WHERE THE DUTY ASSIGNMENT OF THE MAN MAKES IMPRACTICAL THE FURNISHING OF THE RATIONS AND QUARTERS NORMALLY AND USUALLY FURNISHED.

THE RECORD DOES NOT DISCLOSE THAT AT THE TIME WILEY WAS DECLARED MISSING HE WAS AUTHORIZED TO RECEIVE THE ALLOWANCES PRESCRIBED BY THE REGULATIONS, SUPRA, NOR THAT FOR THE PERIOD CONCERNED HE WAS IN A DUTY STATUS WITHIN THE MEANING OF THE STATUTE AND THE REGULATIONS. ACCORDINGLY, THERE APPEARS TO BE NO AUTHORITY FOR THE PAYMENT TO HIM OF SUCH ALLOWANCES.

THE CONCLUSION HEREINABOVE REACHED WOULD APPEAR EQUALLY APPLICABLE TO ALL ENLISTED MEN SIMILARLY SITUATED, UNLESS, OF COURSE, THEY WERE AUTHORIZED TO RECEIVE THE ALLOWANCES INVOLVED AT THE TIME OF THE BEGINNING OF THEIR ABSENCE, IN WHICH EVENT THE SITUATION WOULD APPEAR TO BE GOVERNED BY THE PROVISIONS OF SECTION 2 OF THE ACT OF MARCH 7, 1942, 56 STAT. 144. CF. 22 COMP. GEN. 193; B-28935, FEBRUARY 17, 1943.