B-148890, JUL. 17, 1962

B-148890, JUL. 17, 1962

TO TECHNICAL SERGEANT DONALD F. GUNSAULS, USAF:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1962, WITH ENCLOSURES,REQUESTING REVIEW OF OUR SETTLEMENT OF OCTOBER 12, 1961, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FROM MARCH 22, 1958, TO JUNE 24, 1960. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE WAS NO EVIDENCE OF RECORD THAT YOU WERE AUTHORIZED BY PROPER AUTHORITY TO MESS SEPARATELY.

YOU NOW SUBMIT A CERTIFICATE SIGNED BY LIEUTENANT COLONEL J. L. SMITH, USAF, WHICH STATES AS FOLLOWS:

"TSGT DONALD F. GUNSAULS, AF12284399, SERVED UNDER ME DURING THE PERIOD 22 MARCH 1958 THRU 2 SEPTEMBER 1959, DURING WHICH TIME I WAS THE COMMANDER OF THE 4754TH RADAR EVALUATION SQUADRON. ON 22 MARCH 1958, TSGT GUNSAULS WAS AUTHORIZED TO RATION SEPARATELY. APPARENTLY, DUE TO AN ADMINISTRATIVE OVERSIGHT, ORDERS FOR THIS AUTHORIZATION WERE NOT PUBLISHED. DUE TO CONSTANT VARIATION IN TSGT GUNSAUL'S MONTHLY PAY AS A RESULT OF PER DIEM AND FLYING PAY, HE DID NOT DETECT THE SHORTAGE. THE DISCREPANCY WAS NOTED IN APRIL 1961 DURING THE COURSE OF AN INVESTIGATION, WITHIN THE 78TH ORGANIZATIONAL MAINTENANCE SQUADRON, OF PERSONNEL THAT HAD UTILIZED GOVERNMENT MESSING FACILITIES. EXISTING MESS COLLECTION RECEIPTS INDICATE THAT TSGT GUNSAULS HAD PAID FOR MEALS EATEN IN THE MESS HALL. IN ADDITION HE WAS LIVING WITH HIS FAMILY AT THE TIME. BY THESE FACTS IT IS OBVIOUS THAT TSGT GUNSAULS SHOULD HAVE BEEN RECEIVING SEPARATE RATIONS. IT IS MY OPINION THAT SERGEANT GUNSAULS CLAIM IS VALID AND THAT HE SHOULD BE REIMBURSED FOR THE PERIOD CLAIMED.'

YOUR URGE THAT YOUR CLAIM BE RECONSIDERED IN VIEW OF THIS CERTIFICATION.

SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (A), AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' EXECUTIVE ORDER NO. 10119 DATED MARCH 27, 1950 (37 U.S.C. 251), ISSUED UNDER AUTHORITY OF SECTION 301, PROVIDES GENERALLY THAT THE SECRETARY OF THE SERVICE CONCERNED IS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS, NOT INCONSISTENT THEREWITH, AS HE MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THAT ORDER AND OF SECTION 301 OF THE 1949 ACT.

THE PERTINENT AIR FORCE REGULATIONS FOR THE PERIOD IN QUESTION, ISSUED UNDER SECTION 2 OF THE EXECUTIVE ORDER, ARE CONTAINED IN AIR FORCE MANUAL NO. 173-20. PARAGRAPH 20104 PROVIDES THAT AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE INSTALLATION COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20108 PROVIDES THAT PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE WILL BE AUTHORIZED FOR AIRMEN ON A MILITARY PAY ORDER TO BE ISSUED AFTER AUTHORIZATION IS GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS, AND THAT THE AUTHORIZATION OF THE INSTALLATION COMMANDER IS CONCLUSIVE OF THE RIGHTS OF AIRMEN.

IT IS APPARENT THAT UNDER THE CITED STATUTORY PROVISIONS AND REGULATIONS THE ALLOWANCE IN QUESTION IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED PERSON, AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, WAS AUTHORIZED BY THE PROPER AUTHORITY TO MESS SEPARATELY. IT IS ADMINISTRATIVELY REPORTED IN YOUR CASE THAT THERE ARE NO KNOWN ORDERS OR OTHER WRITTEN AUTHORIZATION IN YOUR RECORDS GRANTING YOU PERMISSION TO MESS SEPARATELY. IN SITUATIONS WHERE VERBAL ORDERS WERE ISSUED TO A MEMBER TO RATION SEPARATELY, PAYMENT OF THE ALLOWANCE HAS BEEN CONSIDERED AS PROPER ONLY WHEN THE RECORD SHOWS THAT SUCH VERBAL AUTHORIZATION WAS CONFIRMED IN WRITING WITHIN A REASONABLE TIME. CONSEQUENTLY, THE CERTIFICATE OF COLONEL SMITH WHICH YOU SUBMITTED WITH YOUR REQUEST FOR REVIEW CLEARLY CANNOT BE CONSIDERED AS PROPER ORDERS OR AUTHORIZATION TO MESS SEPARATELY WITHIN THE CONTEMPLATION OF THE STATUTE AND REGULATIONS. BASED ON THE FOREGOING REASONS, AND SINCE THERE IS NO EVIDENCE OF RECORD THAT YOU WERE GRANTED AUTHORITY TO MESS SEPARATELY PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. SUCH CIRCUMSTANCES YOU SHOULD NOT HAVE BEEN CHARGED FOR MEALS EATEN AT THE MESS AND YOU SHOULD CONTACT THE MESS AUTHORITIES WITH A VIEW TOWARD ATTAINING A REFUND OF SUCH CHARGES.

THE SETTLEMENT OF OCTOBER 12, 1961, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.