B-103602, MAR 6, 1952

B-103602, MAR 6, 1952

PRECIS-UNAVAILABLE

THE CONGRESS:

REPORT BY THE COMPTROLLER GENERAL OF THE UNITED STATES RELATIVE TO THE PAYMENT OF STATION PER DIEM ALLOWANCES TO OFFICER PERSONNEL ASSIGNED TO PERMANENT DUTY AT ELMENDORF AIR FORCE BASE AND FORT RICHARDSON, ALASKA, DURING THE PERIOD FEBRUARY 1, 1949, TO OCTOBER 12, 1950.

ENCLOSED HEREWITH IS A COPY OF DECISION DATED FEBRUARY 19, 1952, TO LIEUTENANT COLONEL ARTHUR T. CAMERON, USAF, SUSTAINING THE DISALLOWANCE OF HIS CLAIM FOR STATION PER DIEM ALLOWANCE FOR THE PERIOD FEBRUARY 25, 1948, TO NOVEMBER 24, 1949, WHILE HE WAS ON DUTY AT ELMENDORF AIR FORCE BASE, FORT RICHARDSON, ALASKA. IN CONNECTION WITH THE CLAIM, THIS OFFICE HAS BEEN ADVISED OF CERTAIN CONDITIONS WHICH PREVAILED AT THE INSTALLATION AT THAT TIME WHICH WOULD APPEAR APPROPRIATE FOR THE CONSIDERATION OF THE CONGRESS.

THE SUBSISTENCE PORTION OF THE STATION ALLOWANCE PRESCRIBED FOR ALASKA WAS NOT PAID CURRENTLY AT ELMENDORF AIR FORCE BASE DURING THE PERIOD COVERED BY COLONEL CAMERON'S CLAIM. THE REASON NO SUCH PAYMENT WAS MADE CURRENTLY WAS THAT THE INCUMBENT COMMANDING OFFICERS AT THAT STATION CONSISTENTLY HAD DETERMINED THAT GOVERNMENT MESS WAS AVAILABLE FOR OFFICERS AT THAT STATION. HOWEVER, CONTRARY TO THE NOTICES ISSUED BY HIS PREDECESSORS IN OFFICE AND PREVIOUSLY POSTED AT THAT PLACE, ADVISING THAT "GOVERNMENT QUARTERS AND GOVERNMENT MESS" WERE AVAILABLE THERE AT, THE COMMANDING OFFICER AT ELMENDORF AIR FORCE BASE ON APRIL 11, 1951, CERTIFIED THAT A "CENTRALIZED 'GOVERNMENT MESS'" WAS NOT AVAILABLE TO OFFICERS AT THAT PLACE DURING THE PERIOD FEBRUARY 1, 1949, TO OCTOBER 12, 1950.

BASED ON THAT CERTIFICATE OF APRIL 11, 1951, AND AN OPINION TO THE SAME EFFECT FROM THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, DATED MARCH 30, 1951, IT APPEARS THAT RETROACTIVE PAYMENTS BACK TO FEBRUARY 1949, OF THE SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE AT RATES FIXED IN THE REGULATIONS CITED IN THE ATTACHED DECISION ($3.75 PER DAY), IN THE TOTAL AMOUNT OF $1,365,100.25 WERE MADE DURING THE PERIOD APRIL 1951, THROUGH SEPTEMBER 26, 1951, BY DISBURSING OFFICERS AT FORT RICHARDSON TO BOTH AIR FORCE AND ARMY OFFICERS WHO WERE STATIONED AT THAT PLACE. NO DOUBT OTHER RETROACTIVE PAYMENTS HAVE BEEN MADE SINCE THAT TIME BY THE SAME AND OTHER DISBURSING OFFICERS. THE LEGALITY OF SUCH PAYMENTS RESTS UPON THE PROPER INTERPRETATION OF THE REGULATIONS CITED IN THE ATTACHED DECISION, WHICH DEFINED THE TERM "GOVERNMENT MESS" AS INCLUDING OFFICERS' MESSES OR ORGANIZATION MESSES FOR ENLISTED PERSONNEL, BUT NOT INCLUDING RESTAURANTS OR CAFETERIAS OPERATED BY SERVICE EXCHANGES OF OFFICERS' CLUBS, $3.75 PER DAY BEING PAYABLE WHERE SUCH MESS WAS AVAILABLE.

WHILE THIS OFFICE HAS NOT BEEN ABLE TO OBTAIN ALL THE FACTS WITH RESPECT TO THE CONDITIONS WHICH PREVAILED AT ELMENDORF AIR FORCE BASE DURING THE PERIOD INVOLVED, IT IS DISCLOSED THAT THE COMMANDING OFFICERS THEREAT WHO PRECEDED BRIGADIER GENERAL WALTER R. AGEE, USAF, WERE OF THE VIEW THAT A "GOVERNMENT MESS" WAS AVAILABLE THEREAT WHILE THEY WERE ON DUTY AT THAT PLACE. THAT VIEW IS EVIDENCED BY THE NOTICES THEY CAUSED TO BE POSTED AS DIRECTED IN THE REGULATIONS MENTIONED ABOVE. TWO OF THE OFFICERS, COLONEL HARRY W. GENEROUS, USAF, AND BRIGADIER GENERAL DONALD R. HUTCHINSON, USAF, NOW HAVE EXPRESSED A CONTRARY OPINION. HOWEVER, NEITHER OF THEM HAS OFFERED ANY EXPLANATION AS TO WHY THEY CAUSED THE ABOVE-MENTIONED NOTICES TO BE PUBLISHED OVER THEIR NAMES IF SUCH NOTICES WERE, IN FACT, NOT CORRECT. COLONEL JAMES T. POSEY WHO SUCCEEDED GENERAL HUTCHINSON HAS ADHERED TO HIS ORIGINAL VIEW THAT A "GOVERNMENT MESS" WAS AVAILABLE AND COLONEL A. N. LAGRIPPO, WHO SERVED UNDER THREE COMMANDING OFFICERS INCLUDING COLONEL GENEROUS AND GENERAL HUTCHINSON, APPEARS TO HAVE A SIMILAR OPINION. IN AN INTERVIEW WITH A REPRESENTATIVE OF THIS OFFICE, GENERAL AGEE STRESSED THE POINT THAT HIS STATEMENT OF APRIL 11, 1951, PERTAINED ONLY TO A CENTRALIZED GOVERNMENT MESS FOR OFFICERS AND THAT HE COULD NOT AND WOULD NOT MAKE ANY CERTIFICATION WITH RESPECT TO AVAILABILITY OF ORGANIZATIONAL ENLISTED MEN'S MESSES TO OFFICERS. ALTHOUGH GENERAL HUTCHINSON REFERS TO A THEATER POLICY AGAINST OFFICERS EATING AT ORGANIZATIONAL ENLISTED MEN'S MESSES, THE RECORD SHOWS THAT SOME (NUMBER NOT KNOWN) DID OBTAIN SOME OR ALL OF THEIR MEALS AT SUCH MESSES. IN ADDITION TO ORGANIZATIONAL MESSES, IT IS DISCLOSED THAT THERE WERE AVAILABLE TO OFFICERS AT ELMENDORF AIR FORCE BASE TWO OTHER MESSES. THE FOLLOWING PORTION OF A LETTER DATED MARCH 14, 1951, TO GENERAL WALTER R. AGEE FROM COLONEL A. N. LAGRIPPO DESCRIBES THE STATUS OF SUCH MESSES IN THE FOLLOWING LANGUAGE:

"DURING MY TOUR AT FORT RICHARDSON, ALASKA (23 MARCH 1948 - 13 JULY 1950), A "FIELD RATION" MESS FOR OFFICERS WAS NOT ESTABLISHED EXCEPT FOR TRANSIENTS. FROM THE TIME OF MY ARRIVAL UNTIL LATE IN 1949 THERE WERE TWO OFFICERS' MESSES' NUMBER 1, LOCATED ADJACENT TO THE OFFICERS' CLUB, WHICH WAS OPERATED BY THE OFFICERS' CLUB, AND NUMBER 2, KNOWN AT THAT TIME AS THE AIR FORCE OFFICERS' MESS, WHICH WAS LOCATED IN THE PRESENT AIR COMPTROLLER BUILDING AND WAS OPERATED BY THE AIR DEPOT GROUP UNTIL LATE IN 1948. IT THEN BECAME ASSIGNED AND WAS OPERATED DIRECTLY BY THE FORT RICHARDSON'S OFFICERS' CLUB AND MESS. LATE IN 1949, NUMBER 2 MESS WAS ABOLISHED.

"WITHIN THE STRICTEST INTERPRETATION OF AF REGULATION 173-30, IT IS MY OPINION THAT THE MESSING FACILITY WHICH WAS OPERATED BY THE OFFICERS' MESS COULD NOT BE CONSIDERED AS A GOVERNMENT MESS. THIS ACTIVITY WAS OPERATED SIMILAR TO MOST STATE-SIDE OFFICERS' MESSES, CHARGING MONTHLY DUES AND PURCHASING SUBSISTENCE THROUGH THE BASE COMMISSARY (ON A LOW PRIORITY), BASE EXCHANGE AND LOCAL COMMERCIAL MARKETS. THE PERSONNEL REQUIRED TO OPERATE THE MESS WERE SECURED FROM MILITARY SOURCES, HOWEVER, THEY WERE PAID AT ESTABLISHED RATES, UP TO $75.00 PER MONTH, FOR THEIR SERVICES FROM THE FUND OF THE OFFICERS' MESS. FOR A LONG PERIOD OF TIME SOAP, CLEANING MATERIALS AND PRESERVATIVES WERE ISSUED TO THE OFFICERS' MESS BY BASE SUPPLY, BUT THIS SITUATION WAS CORRECTED WHEN CALLED TO OUR ATTENTION BY THE INSPECTORS.

"I AM SURE THAT IT WAS THE INTENT OF THE THREE COMMANDERS UNDER WHOM I SERVED AT FORT RICHARDSON, COLONEL THOMAS MOSLEY, COLONEL HARRY W. GENEROUS, BRIGADIER GENERAL DONALD R. HUTCHINSON, TO ESTABLISH GOVERNMENT MESSING FACILITIES FOR ALL OFFICER PERSONNEL WITHOUT THE ESTABLISHMENT OF A "FIELD RATION" MESS AS SUCH. THE CHARGE FOR MEALS SERVED AT THE MESS WERE CERTAINLY IN LINE WITH, AS A MATTER OF FACT MUCH MORE REASONABLE THAN, STATE-SIDE OFFICERS' MESSES. FOR EXAMPLE, AS I RECALL, BREAKFAST WAS FIFTY CENTS (.50), LUNCHEON SIXTY-FIVE (.65), AND EVENING DINNER SEVENTY-FIVE CENTS (.75).

"I PERSONALLY FEEL THAT THERE IS NO REASON OR SUBSTANTIATION FOR A CLAIM AGAINST THE GOVERNMENT FOR STATION SUBSISTENCE ALLOWANCES IN THE AMOUNT OF $3.75 PER DIEM. ***"

IN THE SAME LETTER COLONEL LAGRIPPO EXPLAINS WHY AN OFFICER'S MESS WHICH WOULD FALL WITHIN THE TECHNICAL DEFINITION OF THE TERM "GOVERNMENT MESS" WAS NOT ESTABLISHED. HE STATES--

"THE QUESTION OF THE DESIRABILITY FOR THE ESTABLISHMENT OF A "FIELD RATION" MESS FOR OFFICERS AROSE SEVERAL TIMES. EACH TIME, PROPOSALS WERE NOT MET WITH FAVORABLE CONSIDERATION BECAUSE OF THE RESTRICTIVE REGULATIONS PROHIBITING DEPENDENTS FROM EATING AT THIS TYPE MESS. IT WAS FELT THAT THE FINANCIAL HARDSHIPS INVOLVED BY THE LARGER NUMBER OF OFFICERS (PRIMARILY JUNIOR OFFICERS) WHO WERE REQUIRED TO RESIDE OFF THE STATION, WOULD BECOME MORE AGGRAVATED IF A MESS WAS ESTABLISHED WHICH, BECAUSE OF THE RESTRICTIVE ASPECTS, COULD NOT BE UTILIZED BY THEIR DEPENDENTS."

THE REGULATIONS CITED ABOVE WERE ISSUED UNDER AUTHORITY CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, WHICH PROVIDED THAT IN FIXING THE RATES OF PER DIEM FOR DUTY IN FOREIGN COUNTRIES OR IN ALASKA, CONSIDERATION SHOULD BE GIVEN TO "ALL ELEMENTS OF COST OF LIVING." SUCH REGULATIONS CONTEMPLATE THE PAYMENT OF THE FULL SUBSISTENCE PORTION OF THE STATION PER DIEM ALLOWANCE (IN THIS CASE $3.75 PER DAY) WHERE MEALS ARE AVAILABLE AT EATING PLACES OPERATED BY SERVICE EXCHANGES OR OFFICERS' CLUBS AT A COST SUBSTANTIALLY THE SAME AS THE COST OF MEALS AT A GOVERNMENT OPERATED MESS THEY DO NOT APPEAR TO BE IN LINE WITH THE STANDARDS EXPRESSED IN THE ABOVE-CITED STATUTE. IN OTHER WORDS, IT IS NOT BELIEVED THAT THE CONGRESS INTENDED THAT AN OFFICER WHO EATS AT A MESS SUCH AS THESE AVAILABLE TO OFFICERS AT ELMENDORF AIR FORCE BASE SHALL BE PAID $3.75 PER DAY WHEN HIS BROTHER OFFICER WHO IS PERMITTED TO EAT AT A MESS WHICH IS TECHNICALLY A GOVERNMENT MESS AND WHO PAY SUBSTANTIALLY THE SAME AMOUNT FOR HIS MEALS, RECEIVES NOTHING. THE REASON GIVEN BY COLONEL LAGRIPPO AS TO WHY A "GOVERNMENT MESS" IN THE STRICTEST SENSE WAS NOT ESTABLISHED SUGGESTS THAT INSOFAR AS MESSING FACILITIES WERE CONCERNED THE OFFICERS WERE IN A BETTER POSITION FINANCIALLY WITH THE FACILITIES AVAILABLE THAN IF A "GOVERNMENT MESS" HAD BEEN ESTABLISHED. HOWEVER, THE OFFICERS WERE PAID LARGE SUMS ON THE BASIS THAT A "GOVERNMENT MESS" WAS NOT AVAILABLE. THE STATUTORY CRITERION IS THE COST TO THE OFFICERS CONCERNED, NOT WHETHER A TECHNICALLY DEFINED "GOVERNMENT MESS" IS, OR IS NOT, AVAILABLE.

APPARENTLY THE APPLICABLE REGULATIONS HAVE BEEN VIEWED ADMINISTRATIVELY AS AUTHORIZING PAYMENTS NOT CONTEMPLATED BY LAW AT OTHER LOCATIONS AS WELL AS FORT RICHARDSON AND ELMENDORF AIR FORCE BASE. THERE RECENTLY HAS COME TO ATTENTION A LETTER FROM BRIGADIER GENERAL H. L. PECKHAM, USA, TO THEN MAJOR GENERAL E. M. FOSTER, CHIEF OF FINANCE, UNITED STATES ARMY, DATED SEPTEMBER 26, 1950, CONCERNING A SIMILAR SITUATION WHICH EXISTED WITH RESPECT TO PAYMENT OF STATION SUBSISTENCE PER DIEM ALLOWANCES TO OFFICERS STATIONED AT PARIS, FRANCE, FROM APRIL 18, 1947, TO SOME TIME AFTER NOVEMBER 19, 1947. THE SECOND, THIRD, AND FOURTH PARAGRAPHS OF THAT LETTER READ AS FOLLOWS:

"I REMEMBER VERY WELL STUDYING THE LANGUAGE AND INTENT OF WAR DEPARTMENT CIRCULAR 196 DATED 25 JULY 1947, WHEN IT WAS RECEIVED IN PARIS. THE BIG QUESTION WAS WHETHER THE OFFICERS' MESS IN THE CELTIC HOTEL WAS OR WAS NOT A "GOVERNMENT MESS" WITHIN THE MEANING OF CIRCULAR 196. I DISCUSSED THE MATTER SEVERAL TIMES WITH RAY CONNER BUT STILL HAD NOT MADE AN OFFICIAL FINDING WHEN GENERAL KASTEN CAME TO PARIS ON 29-30 OCTOBER 1947. DISCUSSED THE MATTER WITH HIM AND TOLD HIM THAT OBVIOUSLY THE SUBSISTENCE PORTION OF THE STATION ALLOWANCE WAS HIGHLY IMPORTANT TO MY OFFICERS AND ASKED HIM FOR HIS VIEW AS TO WHETHER IT WAS THE INTENT OF THE CIRCULAR THAT WE RECEIVE THE SUBSISTENCE PORTION OF THE STATION ALLOWANCE NOTWITHSTANDING THE AVAILABILITY OF THE OFFICERS' MESS IN THE CELTIC HOTEL. GENERAL KASTEN'S REPLY, IN SUBSTANCE, WAS THAT IT WAS THE INTENT THAT WE RECEIVE THE ALLOWANCE AND THAT THE EXPRESSION "GOVERNMENT MESS" AS USED IN THE CIRCULAR MEANT AN ENLISTED MESS WHERE MEALS COULD BE OBTAINED AT A NOMINAL COST, WHEREAS IN THE OFFICERS' MESS AT THE CELTIC WE WERE PAYING, I SUPPOSE, SOMETHING LIKE 35 CENTS FOR BREAKFAST, 65 CENTS FOR LUNCHEON AND $1.00 FOR DINNER.

"THEREUPON WITHOUT FURTHER DELAY, I ISSUED A DECLARATION TO THE EFFECT THAT THERE WAS NOT A GOVERNMENT MESS IN THE PARIS AREA WITHIN THE MEANING OF CIRCULAR 196, AND THAT THERE HAD NOT BEEN SUCH A MESS SINCE 18 APRIL 1947. UNFORTUNATELY I DO NOT HAVE IN MY PERSONAL FILE HERE A COPY OF THIS DECLARATION, NOR HAVE I YET BEEN ABLE TO LOCATE ONE, ALTHOUGH I PRESUME THAT A COPY ACCOMPANIED THE FIRST VOUCHERS ON WHICH THE FINANCE OFFICE IN PARIS PAID THE ALLOWANCE. AS I RECALL IT, THE REASON THAT I USED THE DATE 18 APRIL 1947 WAS BECAUSE STATION ALLOWANCES WERE FIRST AUTHORIZED EFFECTIVE THAT DATE UNDER TECHNICAL BULLETIN 14-503 DATED 19 MAY 1947 WHICH OF COURSE PRECEDED CIRCULAR 196 WHICH DID NOT BECOME EFFECTIVE UNTIL 1 JULY 1947. I SHOWED THE DRAFT OF MY PROPOSED DECLARATION TO GENERAL KASTEN; IN FACT, I THINK I DICTATED IT IN HIS PRESENCE - AND HE CONSIDERED IT APPROPRIATE. AS A MATTER OF FACT, I BELIEVE THAT I GAVE HIM A COPY TO TAKE BACK TO WASHINGTON.

"I HAVE AT HAND THUS FAR, ONLY ONE OF THE ABOVE-MENTIONED EXCEPTIONS. WAS FURNISHED TO ME BY MASTER SGT. CALASTRO, WHO AT THE TIME IN QUESTION WAS A COMMISSIONED OFFICER UNDER MY COMMAND. FROM IT I CONCLUDE THAT THE DATE OF MY DECLARATION WAS 19 NOVEMBER 1947, ALTHOUGH AS STATED ABOVE, I DO NOT HAVE A COPY HERE FOR REFERENCE. IT APPEARS THAT THE GENERAL ACCOUNTING OFFICE HAS NOT TAKEN EXCEPTION TO THE PAYMENT OF THE ALLOWANCE AFTER THE DATE OF MY DECLARATION, BUT ONLY FOR THE PERIOD PRECEDING IT. I INTENTIONALLY WORDED MY DECLARATION TO COVER THIS PRECEDING PERIOD FEELING THAT FROM THE STANDPOINT OF EQUITY, IT CERTAINLY COULD NOT HAVE BEEN INTENDED TO DENY THAT ALLOWANCE DURING THE PERIOD AUTHORIZED BY THE WAR DEPARTMENT SIMPLY BECAUSE THE DECLARATION WAS NOT ISSUED UNTIL A LATER DATE."

IT WILL BE NOTED FROM THE FOREGOING THAT BOTH GENERAL KASTEN (THEN CHIEF OF FINANCE, DEPARTMENT OF THE ARMY) AND GENERAL PECKHAM WERE OF THE OPINION THAT A GOVERNMENT MESS COULD NOT BE REGARDED AS BEING AVAILABLE AT AN INSTALLATION, UNLESS AN ENLISTED MAN'S MESS WAS OPERATED WHERE OFFICERS COULD OBTAIN MEALS AT A "NOMINAL COST." WHILE THE AMOUNT CONSIDERED TO BE "NOMINAL" IS NOT KNOWN, APPARENTLY IT WAS LESS THAN THE $2 PER DAY NECESSARY TO OBTAIN MEALS AT THE MESS AVAILABLE IN THE CELTIC HOTEL. THUS VIEWED, IT APPEARS THAT BOTH OF THE ABOVE-MENTIONED OFFICERS WERE OF THE OPINION THAT THE REGULATIONS CONTEMPLATED PAYMENT OF THE PRESCRIBED RATE OF $3.75 PER DAY FOR MEALS BECAUSE THE OFFICERS WERE REQUIRED TO SPEND FOR MEALS THE DIFFERENCE BETWEEN THE "NOMINAL COST" MENTIONED AND $2 A DAY. DISREGARDING THE "NOMINAL COST" THE FACT REMAINS THAT THE PAYMENT OF $3.75 PER DAY WAS ALMOST TWICE AS MUCH AS WAS REQUIRED TO OBTAIN MEALS AT AN AVAILABLE OFFICERS' MESS.

AS STATED IN THE DECISION IN COLONEL CAMERON'S CASE:

"ALL OFFICERS ARE PAID A REGULAR SUBSISTENCE ALLOWANCE AND ARE REQUIRED TO PAY FOR THEIR OWN MEALS. TO PAY AN OFFICER AN EXTRA ALLOWANCE OF $3.75 A DAY, OR OVER $100 A MONTH, BECAUSE HIS MEALS (AT LESS THAN $2 A DAY) AT AN OFFICERS' 'CLUB' MESS, MAINTAINED IN LIEU OR A REGULAR OFFICERS' MESS, MAY COST SLIGHTLY MORE THAN THEY WOULD AT A REGULAR OFFICERS' MESS, APPEARS OBVIOUSLY UNCONSCIONABLE AND BEYOND THE CONTEMPLATION OF THE STATUTES AUTHORIZING ADDITIONAL COST OF LIVING ALLOWANCES IN FOREIGN COUNTRIES AND ALASKA. ALSO, IT WOULD SEEM CLEAR THAT, UNDER THE REGULATIONS, A COMMANDING OFFICER OF AN ORGANIZATION MAY NOT, BY DENYING OR PURPORTING TO DENY AN OFFICER PERMISSION TO EAT SOME OR ALL OF HIS MEALS AT HIS OTHERWISE AVAILABLE ORGANIZATION MESS, CONFER ON THE OFFICER A VESTED LEGAL RIGHT TO SUCH AN EXTRA ALLOWANCE OF $3.75 A DAY."

HOWEVER, AS NOTED ABOVE, RETROACTIVE PAYMENTS OF OVER ONE MILLION DOLLARS HAVE BEEN MADE BY DISBURSING OFFICERS AT ELMENDORF AIR FORCE BASE AND FORT RICHARDSON APPARENTLY WITH THE APPROVAL OF THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, ON THE BASIS THAT OFFICERS IN SUCH CIRCUMSTANCES WERE ENTITLED TO THE ADDITIONAL ALLOWANCE, AND FROM GENERAL PECKHAM'S LETTER, SUPRA, AND CLAIMS BEING SUBMITTED TO THIS OFFICE, IT WOULD APPEAR THAT SIMILAR PRACTICES MAY HAVE BEEN INDULGED NOT ONLY IN PARIS BUT AT OTHER FOREIGN STATIONS.