B-126592, MAR. 19, 1956

B-126592, MAR. 19, 1956

TO MASTER SERGEANT JACKIE ALEXANDER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1955, REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 9, 1955, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM QUARTERS ALLOWANCE FOR THE PERIOD MARCH 13, 1949, TO MAY 28, 1950, WHILE YOU WERE STATIONED IN THE FREE TERRITORY OF TRIESTE.

FROM THE INFORMATION AVAILABLE HERE IT IS UNDERSTOOD THAT GOVERNMENT QUARTERS WERE AVAILABLE IN TRIESTE FOR ALL ENLISTED PERSONNEL. YOU STATED THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM MARCH 13, 1949, THROUGH THE PERIOD IN QUESTION. YOUR CLAIM APPEARS TO BE BASED ON THE FACT THAT GOVERNMENT QUARTERS SUITABLE FOR OCCUPANCY BY YOU AND YOUR DEPENDENTS WERE NOT AVAILABLE AT TRIESTE AND THAT AS A CONSEQUENCE YOU LIVED IN PRIVATE QUARTERS AWAY FROM THE STATION AT PERSONAL EXPENSE.

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, APPROVED OCTOBER 12, 1949, THERE EXISTED NO AUTHORITY TO CONSIDER THE COST OF LIVING OF DEPENDENTS IN FIXING RATES OF PER DIEM FOR PAYMENT TO MILITARY PERSONNEL INCIDENT TO THE PERFORMANCE OF FOREIGN DUTY. THEREFORE A RIGHT TO STATION PER DIEM QUARTERS ALLOWANCE FOR SUCH DUTY WAS BASED ON THE NONAVAILABILITY OF GOVERNMENT QUARTERS FOR THE INDIVIDUAL MEMBER IN HIS OWN RIGHT IRRESPECTIVE OF WHETHER HE WAS ACCOMPANIED BY HIS DEPENDENTS. SECTION 3003/B) OF THE 1949 ACT, 63 STAT. 814, GRANTED AUTHORITY TO CONSIDER THE COST OF LIVING OF DEPENDENTS AS WELL AS PERSONAL COSTS IN FIXING RATES OF PER DIEM FOR FOREIGN DUTY. SECTION 303 (H) OF THAT ACT, HOWEVER, PROVIDED FOR THE PROMULGATION OF REGULATIONS TO IMPLEMENT THE VARIOUS PROVISIONS OF SECTION 303, AND STIPULATED THAT "NO PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN UED.' THE FIRST REGULATIONS UNDER THAT AUTHORITY PURPORTING TO CONSIDER THE COST OF LIVING OF DEPENDENTS OF ARMY PERSONNEL WERE ISSUED ON JUNE 30, 1950. THEREFORE, THERE WAS NO AUTHORITY PRIOR TO THAT DATE FOR THE PAYMENT OF STATION PER DIEM QUARTERS ALLOWANCE TO A MEMBER OF THE ARMY IF QUARTERS WERE AVAILABLE TO HIM IN HIS OWN RIGHT REGARDLESS OF WHETHER OR NOT HE WAS ACCOMPANIED BY HIS DEPENDENTS. CONSEQUENTLY, SINCE GOVERNMENT QUARTERS WERE AVAILABLE TO YOU AS AN INDIVIDUAL DURING THE PERIOD OF YOUR CLAIM, MARCH 13, 1949, TO MAY 28, 1950, NO BASIS EXISTS UNDER THE LAW FOR THE PAYMENT TO YOU OF THE ALLOWANCE CLAIMED EVEN THOUGH QUARTERS SUITABLE FOR YOU AND YOUR DEPENDENTS WERE NOT AVAILABLE. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 9, 1955, IS SUSTAINED.

WITH REFERENCE TO YOUR STATEMENT THAT OTHER INDIVIDUALS HAVE RECEIVED PAYMENT ON CLAIMS FOR STATION PER DIEM QUARTERS ALLOWANCES AT TRIESTE, YOU ARE ADVISED THAT IF PAYMENTS HAVE BEEN MADE UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE SUCH PAYMENTS WERE CLEARLY ERRONEOUS AND MAY NOT SERVE AS AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.