B-124841, JAN. 12, 1956

B-124841, JAN. 12, 1956

TO SERGEANT JOSE A. PAGAN, NG 29 175 765:

YOUR LETTER OF MAY (JUNE) 4, 1955, REQUESTS REVIEW OF OUR SETTLEMENT OF MAY 12, 1955, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM SUBSISTENCE ALLOWANCE FOR THE PERIOD FROM APRIL 1, 1951, THROUGH JANUARY 31, 1952, WHILE YOU WERE SERVING AS AN ENLISTED MEMBER OF THE 296TH INFANTRY IN PUERTO RICO.

IT IS SHOWN IN THE RECORDS THAT DURING THE ENTIRE PERIOD OF YOUR CLAIM YOU WERE STATIONED AT CAMP LOSEY, PUERTO RICO. CERTIFICATION OF THE PERSONNEL OFFICER, CAMP LOSEY, WHICH WAS SUBMITTED IN SUPPORT OF YOUR CLAIM, STATES THAT A GOVERNMENT MESS WAS AVAILABLE TO YOU DURING THE PERIOD INVOLVED, THAT YOU WERE NOT AUTHORIZED TO MESS SEPARATELY AND THAT YOUR DEPENDENTS WERE NOT SUBSISTED BY GOVERNMENT MESS. YOUR PAY RECORDS SHOW THAT YOU WERE CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD INVOLVED, THE NAMES AND ADDRESSES OF YOUR DEPENDENTS BEING SHOWN AS FOLLOWS: AURELIA V. PAGAN (MOTHER), 334 CANTERA STREET, MAYAGUEZ, AND MARIA MERCEDES PAZ DE PAGAN (WIFE), PUERTO RICO TELEPHONE COMPANY, MAYAGUEZ. YOUR HOME ADDRESS WAS SHOWN AS 334 CANTERA STREET, MAYAGUEZ, WHICH WAS THE SAME AS THE ADDRESS SHOWN FOR YOUR MOTHER, AND UPON YOUR DISCHARGE FROM THE SERVICE ON OCTOBER 24, 1951, YOU WERE PAID TRAVEL PAY FROM CAMP LOSEY TO MAYAGUEZ ON THE BASIS OF A DISTANCE OF 58 MILES.

REGULATIONS GOVERNING THE PAYMENT OF STATION PER DIEM ALLOWANCES ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4300 OF THOSE REGULATIONS, AS THEN IN EFFECT, AUTHORIZED THE PAYMENT OF A STATION PER DIEM SUBSISTENCE ALLOWANCE ONLY FOR PERIODS WHEN GOVERNMENT SUBSISTENCE (GOVERNMENT MESS) WAS NOT AVAILABLE, EXCEPT THAT (PARAGRAPH 4301-5) FOR PURPOSES OF DETERMINING ENTITLEMENT TO THAT ALLOWANCE,"AVAILABILITY" OF A GOVERNMENT MESS WAS APPLICABLE ONLY TO MEMBERS WITHOUT DEPENDENTS, TO MEMBERS WITH DEPENDENTS WHOSE DEPENDENTS WERE NOT RESIDING IN THE VICINITY OF THEIR DUTY STATIONS, AND TO MEMBERS WITH DEPENDENTS WHEN THE MEMBER AND HIS DEPENDENTS WERE ACTUALLY SUBSISTED IN A GOVERNMENT MESS. PARAGRAPH 4301-3 PROVIDED THAT THE TERM "MEMBER WITHOUT DEPENDENTS" WOULD ALSO INCLUDE A MEMBER WHOSE DEPENDENTS "DO NOT RESIDE WITH HIM AT HIS FOREIGN DUTY STATION.' WHILE YOU HAVE STATED THAT "I SPEND ALL NIGHTS IN MY HOME WITH MY WIFE, EXCEPT THOSE WHEN I WAS ON DUTY AT CAMP," YOU HAVE INDICATED NO HOME ADDRESS AT YOUR DUTY STATION WHERE YOUR WIFE RESIDED. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT MUST BE ASSUMED THAT SHE DID NOT RESIDE AT YOUR DUTY STATION BUT THAT SHE IN FACT RESIDED AT MAYAGUEZ, WHICH, BEING 58 MILES AWAY, MAY NOT BE CONSIDERED TO BE IN THE VICINITY OF YOUR DUTY STATION. THUS, ON THE BASIS OF THE PRESENT RECORD, YOUR STATUS UNDER THE REGULATIONS, FOR THE PURPOSE OF DETERMINING YOUR ENTITLEMENT TO THE ALLOWANCE CLAIMED, WAS THAT OF A MEMBER WITHOUT DEPENDENTS. IT MUST BE HELD, THEREFORE, THAT SINCE A GOVERNMENT MESS WAS AVAILABLE TO YOU AT YOUR DUTY STATION DURING THE PERIOD COVERED BY YOUR CLAIM, NO AUTHORITY EXISTS FOR THE PAYMENT OF A STATION PER DIEM SUBSISTENCE ALLOWANCE FOR THAT PERIOD.

WITH REGARD TO YOUR STATEMENT THAT YOU BELIEVE THAT YOUR CLAIM SHOULD BE FAVORABLY CONSIDERED BECAUSE SERGEANT RAMON SUAREZ CASIANO, MEMBER OF COMPANY G, 65TH INFANTRY, AT CAMP LOSEY--- WHOSE CASE YOU SAY IS THE SAME AS YOURS--- RECEIVED A CHECK FOR $353.40 IN MARCH 1955, AS STATION PER DIEM SUBSISTENCE ALLOWANCE FOR THE PERIOD FROM APRIL 1, 1951, TO JANUARY 31, 1952, YOU ARE ADVISED THAT SETTLEMENT OF AN INDIVIDUAL CLAIM IS NOT REGARDED AS NECESSARILY CONTROLLING IN THE DISPOSITION OF ANY OTHER CLAIM OR AS ESTABLISHING A BINDING PRECEDENT. 11 COMP. GEN. 365; 17 ID. 445. IT IS THE LONG-ESTABLISHED RULE THAT PERSONS WHO PRESENT CLAIMS AGAINST THE UNITED STATES MUST CLEARLY ESTABLISH THE FACTS UPON WHICH THEIR CLAIMS ARE BASED AND THE BURDEN IMPOSED BY THE RULE MUST BE MET SQUARELY IN EACH CASE IN ORDER TO JUSTIFY THE ALLOWANCE OF SUCH CLAIMS FROM APPROPRIATED FUNDS. 23 COMP. GEN. 907.

AS YOU HAVE NOT ESTABLISHED YOUR RIGHT TO PAYMENT OF THE AMOUNT CLAIMED, THE SETTLEMENT OF MAY 12, 1955, MUST BE AND IS SUSTAINED.