B-148868, JAN. 21, 1963

B-148868, JAN. 21, 1963

TO LIEUTENANT STUART M. STEEN, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER WITH ENCLOSURES, DATED SEPTEMBER 12, 1962, ADDRESSED TO THE COMMANDING OFFICER, U.S. NAVY FINANCE OFFICE, RETIRED PAY DEPARTMENT, CLEVELAND, OHIO, WHICH HAS FORWARDED HERE FOR CONSIDERATION AND SETTLEMENT. YOUR LETTER PRESENTS A CLAIM FOR REIMBURSEMENT OF MEDICAL EXPENSES INCURRED FOR YOURSELF AND FAMILY DURING THE PERIOD FROM JULY 1, 1959, TO JUNE 16, 1961. YOU ALSO REQUEST TO BE ADVISED AS TO THE VALUE THAT CAN BE PLACED UPON COMMISSARY AND POST EXCHANGE PRIVILEGES DENIED YOU DURING THAT PERIOD.

THE RECORDS SHOW THAT YOU WERE HONORABLY DISCHARGED FROM THE NAVY ON JUNE 30, 1959, WITH SEVERANCE PAY. ON MAY 8, 1961, THE SECRETARY OF THE NAVY APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT YOUR RECORDS BE CORRECTED TO SHOW THAT YOU WERE NOT DISCHARGED FROM THE NAVY BUT THAT YOUR NAME WAS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1959. IN OUR TWO PRIOR DECISIONS TO YOU, DATED JUNE 26, 1962, AND AUGUST 14, 1962, WE DISCUSSED AND DETERMINED THE MATTERS OF YOUR INDEBTEDNESS IN THE AMOUNT OF THE SEVERANCE PAY AND THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (IN VIEW OF YOUR FEDERAL CIVIL EMPLOYMENT) ARISING BY REASON OF THE CORRECTION OF YOUR NAVAL RECORD.

YOUR PRESENT CLAIMS APPEAR TO BE PREDICATED ON A BELIEF THAT THE PLACEMENT OF YOUR NAME ON THE TEMPORARY DISABILITY RETIRED LIST ENTITLED YOU, AS A MATTER OF RIGHT, TO MEDICAL BENEFITS AT NO EXPENSE TO YOURSELF AND TO COMMISSARY AND POST EXCHANGE FACILITIES.

ARTICLE 20-6, MANUAL OF THE MEDICAL DEPARTMENT, U.S. NAVY, PROVIDES IN PERTINENT PART:

"/1) INACTIVE-DUTY MEMBERS AND FORMER MEMBERS OF THE NAVY OR THE MARINE CORPS, * * * ENTITLED TO RETIRED, RETIREMENT OR RETAINER PAY OR EQUIVALENT PAY AS A RESULT OF THEIR SERVICE, * * * MAY BE, UPON REQUEST, FURNISHED REQUIRED MEDICAL AND DENTAL CARE AND ADJUNCTS THERETO IN ANY MEDICAL FACILITY OF A UNIFORMED SERVICE TO THE SAME EXTENT AS PROVIDED ACTIVE DUTY MEMBERS. SUCH CARE SHALL BE SUBJECT TO MISSION REQUIREMENTS AND THE AVAILABILITY OF SPACE, FACILITIES, AND CAPABILITIES OF THE MEDICAL STAFF OR DENTAL STAFF AS DETERMINED BY THE LOCAL MEDICAL OR DENTAL AUTHORITIES.'

WE ARE AWARE OF NO STATUTORY AUTHORITY PROVIDED THAT THE FURNISHING OF MEDICAL SERVICES TO RETIRED PERSONNEL IS MANDATORY OR THAT RETIRED PERSONNEL ARE ENTITLED AS A MATTER OF RIGHT TO SUCH SERVICES. AS WILL BE NOTED IN THE ABOVE-QUOTED REGULATIONS, THE FURNISHING OF MEDICAL BENEFITS IN KIND TO RETIRED PERSONNEL IS PERMISSIVE AND IS DEPENDENT ON THE CONDITIONS MENTIONED. ALSO, WE ARE NOT AWARE OF ANY PROVISION OF LAW WHICH WOULD AUTHORIZE THE REIMBURSEMENT TO RETIRED PERSONNEL OF SUMS EXPENDED BY THEM FOR MEDICAL SERVICES.

AS TO YOUR INQUIRY CONCERNING THE DENIAL OF COMMISSARY AND POST EXCHANGE PRIVILEGES FOR THE PERIOD PRIOR TO THE DATE OF THE CORRECTION BOARD ACTION, YOUR ATTENTION IS INVITED TO PARAGRAPH 4-601, DEPARTMENT OF DEFENSE REGULATIONS, WHICH STATES:

"4-601 STATEMENT OF POLICY. EXCHANGES SHALL BE OPERATED WITH NON APPROPRIATED FUNDS. THEY SHALL BE SELF-SUSTAINING WITH RESPECT TO THE PAYMENT OF SALARIES OF CIVILIAN EMPLOYEES, THE PURCHASE OF OPERATING EQUIPMENT AND SUPPLIES, AND THE MAINTENANCE OF EQUIPMENT. EXCHANGES SHALL REIMBURSE THE GOVERNMENT FOR THE COST OF HEAT, WATER, LIGHT, POWER, AND OTHER UTILITIES FURNISHED BY THE GOVERNMENT. HOWEVER, EXCHANGES MAY UTILIZE AVAILABLE EQUIPMENT OF THE GOVERNMENT PROVIDED THAT ALL OPERATING AND MAINTENANCE COSTS OF SUCH EQUIPMENT ARE PAID BY THE EXCHANGE.'

IT WILL BE NOTED THAT THE EXCHANGES ARE NOT GOVERNMENT OWNED OR OPERATED ACTIVITIES, ALTHOUGH THEIR OPERATION MUST BE IN ACCORD WITH GOVERNMENT RULES AND REGULATIONS, AND UNDER THE SUPERVISION OF THE GOVERNMENT. BOTH COMMISSARIES--- WHICH ARE RESPONSIBLE FOR REQUISITIONING, RECEIVING, STORING AND SELLING ALL AUTHORIZED SUBSISTENCE ITEMS TO ORGANIZATIONS AT AIR FORCE INSTALLATIONS--- AND COMMISSARY STORES--- WHICH ARE ESTABLISHED AS AN ADJUNCT OF COMMISSARIES FOR SALES TO INDIVIDUALS BECAUSE OF A LACK OF ADEQUATE, CONVENIENTLY AVAILABLE, COMMERCIAL FACILITIES WHICH SELL COMMISSARY MERCHANDISE AT REASONABLE PRICES--- ARE GOVERNMENT OWNED AND OPERATED. SEE AIR FORCE REGULATIONS 145-5. HOWEVER, POST EXCHANGES AND COMMISSARY STORES ARE NOT LOCATED AT PLACES WHERE ALL RETIRED PERSONNEL CAN AVAIL THEMSELVES OF THE PRIVILEGE OF MAKING PURCHASES THEREAT AND THERE IS NO WAY OF DETERMINING THE MONEY VALUE OF SUCH PRIVILEGE IN ANY EVENT.

EVEN IF IT WERE POSSIBLE TO PLACE A VALUE ON THE PRIVILEGE OF MAKING PURCHASES IN SUCH ESTABLISHMENTS, NO PAYMENT COULD BE MADE FOR THE DENIAL OF THE PRIVILEGE, SINCE WE ARE NOT AWARE OF ANY APPROPRIATION AVAILABLE FOR THAT PURPOSE. CLAIMS MAY BE ALLOWED ONLY IF AUTHORIZED BY SOME STATUTE AND PAID ONLY FROM AN APPROPRIATION AVAILABLE FOR THAT PURPOSE.