B-134830, MAR. 14, 1958

B-134830, MAR. 14, 1958

TO COMMANDER NORMAN W. MCLEOD, U.S. NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 18, 1951, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES INCIDENT TO DUTY PERFORMED IN ALASKA DURING THE PERIOD FROM JUNE 18, 1948, TO JUNE 28, 1949.

ORDERS OF MAY 13, 1948, ISSUED AT THE U.S. NAVAL AIR STATION, PENSICOLA, FLORIDA, DIRECTED YOU TO PROCEED, WHEN DIRECTED, TO FAIRBANKS, ALASKA, AND REPORT TO THE OFFICER IN CHARGE OF CONSTRUCTION CONTRACT NOY-13360 FOR DUTY INVOLVING FLYING AS AN AVIATION TECHNICAL ADVISOR. YOU REPORTED AT FAIRBANKS UNDER THOSE ORDERS ON JUNE 18, 1948, AND IT APPEARS THAT YOU CONTINUED IN THE PERFORMANCE OF THAT ASSIGNMENT UNTIL DETACHED ON JUNE 28, 1949, UNDER BUREAU OF NAVAL PERSONNEL ORDERS DATED MARCH 22, 1949. YOU INDICATE THAT YOUR CLAIM COVERS THE INTERVENING PERIOD, WITH CERTAIN EXCEPTIONS WHEN SUBSISTENCE AND QUARTERS WERE FURNISHED FROM SOURCES OTHER THAN YOUR PERSONAL EXPENDITURES. YOU REFER TO STATION ALLOWANCE PAYMENTS THAT WERE MADE TO CERTAIN NAVAL PERSONNEL OF THE CIVIL ENGINEER CORPS ASSIGNED TO DUTY IN ALASKA IN CONNECTION WITH CONSTRUCTION CONTRACT NOY- 13360 AND STATE A BELIEF THAT THE ALLOWANCE WAS NOT AUTHORIZED IN YOUR CASE ONLY BECAUSE THE LOCAL OFFICIALS IMPROPERLY CONSIDERED YOUR NEED FOR SUCH ALLOWANCE AS LACKING DUE TO THE FACT THAT YOU WERE DRAWING HAZARDOUS DUTY PAY AS AN AVIATOR IN THE PERFORMANCE OF YOUR ASSIGNED DUTIES.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, IN EFFECT DURING THE PERIOD IN QUESTION, PROVIDED THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT THE HEADS OF THE DEPARTMENTS CONCERNED COULD AUTHORIZE THE PAYMENT TO MEMBERS OF THE ARMED FORCES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN LIEU THEREOF. PART II OF EXECUTIVE ORDER NO. 9871, DATED JULY 8, 1947, PROMULGATED UNDER THAT AUTHORITY, PROVIDED THAT THE HEADS OF THE DEPARTMENTS CONCERNED COULD AUTHORIZE THE PAYMENT OF THE ALLOWANCES AND PRESCRIBE SUCH ADDITIONAL REGULATIONS AS MIGHT BE NECESSARY IN THE MATTER. REGULATIONS ISSUED UNDER THAT AUTHORITY, IN EFFECT ON AND AFTER JULY 1, 1947, THROUGH THE PERIOD INVOLVED IN YOUR CLAIM, APPEAR IN APPENDIX C TO THE 1946 EDITION OF THE U.S. NAVAL TRAVEL INSTRUCTIONS. THOSE REGULATIONS SET FORTH THE DETERMINATIONS OF THE SECRETARY OF THE NAVY AS TO THE RATES OF PER DIEM PAYABLE AS STATION AND TRAVEL ALLOWANCES TO NAVAL PERSONNEL ON DUTY AT VARIOUS GEOGRAPHICAL LOCATIONS OUTSIDE THE UNITED STATES AND IN ALASKA AND PROVIDE THAT AUTHORIZATION FOR PAYMENT MUST BE MADE EITHER BY THE CHIEF OF NAVAL PERSONNEL OR BY THE COMMANDING OFFICER OF THE ACTIVITY WHERE THE DUTY IS PERFORMED, WITH PAYMENTS TO BE MADE MONTHLY (AND ON DETACHMENT) ON THE BASIS OF A BLANKET COMMANDING OFFICER'S ORDER LISTING THE NAMES OF THE OFFICERS, THE PER DIEM RATES, AND THE PERIOD INVOLVED, THE ORDER TO BEAR A CERTIFICATION BY THE COMMANDING OFFICER AS TO THE NON-AVAILABILITY OF GOVERNMENT MESS AND QUARTERS FOR THE OFFICER. SUCH PROVISIONS HAVE BEEN CONSIDERED AS REQUIRING SPECIFIC WRITTEN AUTHORIZATION FOR PER DIEM ALLOWANCES ISSUED EITHER BY THE BUREAU OF NAVAL PERSONNEL IN ADVANCE OF THE PERIOD OF DUTY INVOLVED, OR BY THE LOCAL COMMANDING OFFICER, BASED ON A CONTEMPORANEOUS DETERMINATION BY THAT OFFICIAL THAT CIRCUMSTANCES REGARDING THE AVAILABILITY OF QUARTERS AND MESSING FACILITIES ARE SUCH THAT THE PAYMENT OF THE ALLOWANCES IS WARRANTED. B-101652, MAY 22, 1951. IN VIEW OF THE SPECIFIC REQUIREMENTS OF THOSE REGULATIONS, NO AUTHORITY COULD BE CONSIDERED TO EXIST FOR THE PAYMENT OF STATION PER DIEM ALLOWANCES IN THE ABSENCE OF AN EXPRESS AUTHORIZATION ISSUED EITHER PRIOR TO OR CONTEMPORANEOUSLY WITH THE DUTY PERIOD INVOLVED, AND AN ALLEGATION THAT EXTRANEOUS MATTERS CONTROLLED THE DETERMINATION NOT TO ISSUE AN AUTHORIZATION IN A PARTICULAR CASE, DOES NOT WARRANT A DIFFERENT CONCLUSION.

PAYMENTS MADE TO THE OFFICERS OF THE CIVIL ENGINEER CORPS ASSIGNED TO DUTY IN CONNECTION WITH CONSTRUCTION CONTRACT NOY-13360 WERE SUPPORTED BY EVIDENCE OF A CONTEMPORANEOUS DETERMINATION BY THE LOCAL COMMANDING OFFICER THAT PAYMENT TO THOSE OFFICERS OF STATION PER DIEM ALLOWANCES WOULD BE PROPER. IN YOUR CASE, HOWEVER,THERE APPEARS TO HAVE BEEN NO AUTHORIZATION ISSUED EITHER IN ADVANCE BY THE BUREAU OF NAVAL PERSONNEL OR CONTEMPORANEOUSLY BY THE LOCAL COMMANDING OFFICER TO MEET THE REQUIREMENTS OF THE REGULATIONS. UNDER SUCH CIRCUMSTANCES, NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 18, 1951, IS SUSTAINED.

THE ORIGINAL ORDERS, ENDORSEMENTS AND RELATED PAPERS FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH.