B-147054, SEP. 26, 1961

B-147054, SEP. 26, 1961

TO THE TECHNICAL SERGEANT MELVIN J. SCHLATTMAN, AF17242791:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FROM NOVEMBER 7, 1959, TO SEPTEMBER 6, 1960, AND FROM OCTOBER 8, 1960, TO NOVEMBER 30, 1960, INCIDENT TO YOUR SERVICE AS TECHNICAL SERGEANT, UNITED STATES AIR FORCE.

IT WAS POINTED OUT IN THAT SETTLEMENT THAT THE PERTINENT AIR FORCE REGULATIONS PROVIDE THAT THE DETERMINATION OR AUTHORIZATION OF THE INSTALLATION COMMANDER IS CONCLUSIVE OF THE RIGHTS OF AN AIRMAN TO THE SEPARATE RATION ALLOWANCE AND THAT SUCH ALLOWANCE IS NOT PAYABLE TO AN AIRMAN UNLESS THERE IS A SHOWING THAT, PRIOR TO THE PERIOD INVOLVED, HE WAS IN FACT AUTHORIZED BY PROPER AUTHORITY TO MESS SEPARATELY. SINCE THERE IS NO EVIDENCE FROM AN OFFICIAL SOURCE AFFIRMATIVELY SHOWING THAT ANY VERBAL OR WRITTEN ORDERS WERE ACTUALLY ISSUED TO YOU BY THE INSTALLATION COMMANDER AT GRAND FORKS AIR FORCE BASE PRIOR TO OR CONTEMPORANEOUS WITH THE PERIOD OF YOUR CLAIM, YOUR CLAIM WAS DENIED.

YOU SAY THAT ALTHOUGH SEPARATE RATIONS ARE NOT AUTOMATIC, THEY ARE CONSIDERED AS SUCH, AND THAT THEY ARE NEVER REFUSED A MARRIED MAN LIVING OFF BASE WITH HIS FAMILY IF HE APPLIES FOR THEM. YOU ALSO SAY THAT YOU MADE A MISTAKE IN NOT APPLYING FOR SEPARATE RATIONS WHEN SIGNING IN ON GRAND FORKS AIR FORCE BASE; THAT YOU FEEL THE U.S. AIR FORCE IS PARTIALLY TO BLAME BY NOT ADVISING YOU OF YOUR RESPONSIBILITY TO APPLY FOR SUCH RATIONS; AND THAT THERE WOULD BE NO QUESTION AS TO APPLY FOR SUCH RATIONS; AND THAT THERE WOULD BE NO QUESTION AS TO YOUR ELIGIBILITY. YOU ASK (A) WHETHER YOUR CLAIM THEREFOR WOULD BE ALLOWED IF "THE BASE COMMANDER, DURING THE PERIOD OF MY NOT DRAWING SEPARATE RATIONS, SIGNED A CERTIFICATE STATING THAT I WAS UNDER VERBAL ORDERS TO RECEIVE THEM," AND (B) WHETHER YOU WOULD BE ABLE "TO GET THIS MONEY IF THE LAW WAS CHANGED IN THE TURE.'

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED, PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATES THERE PRESCRIBED WHEN (1) RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; OR (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO GOVERNMENT MESSING FACILITIES ARE AVAILABLE. SUBSECTION 301 (D) PROVIDES THAT THE PRESIDENT OF THE UNITED STATES MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SUBSECTION 3 (C), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER THE AUTHORITY CONTAINED IN SUBSECTION 301 (D) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

THE PERTINENT AIR FORCE REGULATIONS FOR THE PERIOD PRIOR TO JULY 1, 1960, ISSUED UNDER SECTION 2 OF THE EXECUTIVE ORDER, WERE CONTAINED IN AIR FORCE MANUAL NO. 173-20. PARAGRAPH 20104 OF THAT MANUAL PROVIDED THAT AIRMEN WERE 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 PROVIDED THAT PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE AUTHORIZED FOR AIRMEN AFTER AUTHORIZATION WAS GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS AND THAT THE AUTHORIZATION OF THE INSTALLATION COMMANDER WAS CONCLUSIVE OF THE RIGHTS OF AIRMEN. THE REGULATIONS FOR THE PERIOD BEGINNING JULY 1, 1960, ARE CONTAINED IN AIR FORCE MANUAL NO. 177-105. PARAGRAPH 20404 OF THAT MANUAL PROVIDES THAT AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE BASE COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20408 PROVIDES THAT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WILL BE STARTED AND STOPPED ON THE BASIS OF MILITARY PAY ORDERS PREPARED BY CERTIFYING OFFICERS IN QUADRUPLICATE. THAT PARAGRAPH FURTHER PROVIDES THAT AFTER AUTHORIZATION IS GRANTED FOR AN AIRMAN TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS, A MILITARY PAY ORDER AUTHORIZING PAYMENT WILL BE ISSUED; THAT THE AUTHORIZATION OF THE BASE COMMANDER IS CONCLUSIVE OF THE RIGHTS OF AN AIRMAN, SUBJECT TO REVIEW OF PAYMENTS INVOLVED BY THE ACCOUNTING OFFICES OF THE GOVERNMENT, AND THE COURTS; AND THAT THE MILITARY PAY ORDER WILL STATE THE DATE OF COMMENCEMENT AND THE TYPE OF ALLOWANCE TO WHICH THE AIRMAN IS ENTITLED, AND WILL BE SUBSTANTIATED BY COPIES OF THE BASE AUTHORIZATION TO RATION SEPARATELY.

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. WE HAVE HELD, GENERALLY, THAT RETROACTIVE WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED, BUT ONLY IF IT IS SHOWN THAT SUCH WRITTEN ORDERS WERE ISSUED IN CONFIRMATION OF SPECIFIC VERBAL ORDERS ISSUED AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, AND ONLY IF THEY WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF THE VERBAL ORDERS. IT OUR PRACTICE TO RECOGNIZE SUCH RETROACTIVE WRITTEN ORDERS ONLY WHERE THERE HAS BEEN A FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE VERBAL ORDERS; IN OTHER WORDS, THERE MUST BE EVIDENCE OTHER THAN BELATED CONFIRMATORY ORDERS THEMSELVES, TO ESTABLISH THAT VERBAL ORDERS WERE ACTUALLY ISSUED.

A MEMBER WHO SECURES HIS OWN MEALS AWAY FROM A GOVERNMENT MESS WITHOUT BEING AUTHORIZED TO DO SO CANNOT BE SAID TO HAVE BEEN GRANTED PERMISSION TO MESS SEPARATELY WITHIN THE MEANING OF THE CITED PROVISIONS OF LAW AND REGULATIONS, EVEN THOUGH AN ATTEMPT IS MADE TO GRANT SUCH PERMISSION RETROACTIVELY. THE AMOUNT PAID TO THE MEMBER AS A SUBSISTENCE ALLOWANCE WHEN PERMISSION TO MESS SEPARATELY IS GRANTED IS THE AMOUNT DETERMINED TO BE THE DAILY COST OF FURNISHING MEALS FOR THE MEMBER AT THE MESS. MERE ABSENCE FROM THE MESS BY A MEMBER ASSIGNED TO THE MESS RESULTS IN NO SAVINGS TO THE GOVERNMENT AND IT IS ONLY WHERE PERMISSION TO MESS SEPARATELY IS ADMINISTRATIVELY AUTHORIZED THAT IT IS POSSIBLE FOR THE GOVERNMENT TO REALIZE THE BENEFIT OF A MEMBER'S ABSENCE FROM THE MESS.

IN VIEW OF THE HYPOTHETICAL NATURE OF YOUR QUESTION AS TO WHETHER YOU WOULD BE ABLE "TO GET THIS MONEY IF THE LAW WAS CHANGED IN THE FUTURE," WE DO NOT BELIEVE IT APPROPRIATE TO UNDERTAKE AN ANSWER TO THAT QUESTION AT THIS TIME. 21 COMP. GEN. 83.

SINCE THE INFORMATION FURNISHED IN SUPPORT OF YOUR CLAIM FAILS TO SHOW THAT YOU WERE GRANTED PERMISSION TO MESS SEPARATELY, AT OR PRIOR TO THE BEGINNING OF THE PERIOD HERE INVOLVED, YOU HAVE NOT MET THE CONDITIONS OF THE STATUTE AND THE REGULATIONS AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JUNE 13, 1961, IS SUSTAINED.