B-136320, OCTOBER 9, 1959, 39 COMP. GEN. 273

B-136320, OCTOBER 9, 1959, 39 COMP. GEN. 273

MILITARY PERSONNEL - MESSES - FOOD AND OPERATING EXPENSE REIMBURSEMENT - AVIATION CADET STATUS THE PROVISION IN DEPARTMENT OF DEFENSE APPROPRIATION ACTS (SECTION 609, OF THE 1960 APPROPRIATION ACT, 73 STAT. 379), WHICH REQUIRES REIMBURSEMENT TO THE GOVERNMENT OF FOOD AND OPERATING EXPENSES OF MESSES AT WHICH MEALS ARE FURNISHED TO CIVILIANS OR OFFICERS WHO ARE NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE OR WHO RECEIVE A SUBSTANCE ALLOWANCE, APPLIES NOT ONLY TO CIVILIAN PERSONNEL AND OFFICERS OF THE SERVICES BUT TO ANY OTHER MEMBERS OF THE ARMED SERVICES WHOSE RIGHT TO A SUBSISTENCE ALLOWANCE IS ASSIMILATED TO THAT OF OFFICERS; THEREFORE, AVIATION CADETS WHO HAVE A SPECIAL ENLISTED STATUS BUT WHO, LIKE OFFICERS, RECEIVE A SUBSISTENCE ALLOWANCE AT ALL TIMES WHETHER OR NOT MESSING FACILITIES ARE AVAILABLE ARE REGARDED AS OFFICERS UNDER THE MESS REIMBURSEMENT PROVISION, AND THERE IS NO JUSTIFICATION FOR CHARGING CADETS FOR ONLY FOOD COSTS WHILE OFFICERS ARE CHARGED FOR BOTH FOOD AND OPERATING EXPENSES OF A MESS OPERATED BY A CONTRACTOR OR AGENT OF THE GOVERNMENT.

TO THE SECRETARY OF THE AIR FORCE, OCTOBER 9, 1959:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS REPORTED THAT IN THE AUDIT OF COST-TYPE CONTRACTS NOS. AF 33 (600/-33471 AND AF 33 (038/ 28788, AWARDED TO TEXAS AVIATION INDUSTRIES, INC., HONDO, TEXAS, BY THE DEPARTMENT OF THE AIR FORCE, FOR THE TRAINING OF PILOTS AT HONDO FIELD, HONDO, TEXAS, A QUESTION HAS ARISEN WITH RESPECT TO THE SERVICE RENDERED BY THE CONTRACTOR IN PROVIDING DINING ROOM FACILITIES AND MEALS TO AVIATION CADETS AND THE PROCEDURE IN EFFECT AT THAT BASE FOR REIMBURSEMENT BY THE AVIATION CADET OPEN MESS TO THE CONTRACTOR OF THE COSTS INVOLVED.

THE AVIATION CADETS EACH RECEIVES A MONTHLY ALLOWANCE OF $47.88 AS PROVIDED BY SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 251 (A), AS AMENDED BY SECTION 20 (B) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 627, AND SECTION 10 OF THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1556, 37 U.S.C. 251 (A). IT APPEARS THAT THE ENTIRE ALLOWANCE FOR SUBSISTENCE RECEIVED BY EACH CADET, WHO IS A MEMBER OF THE AVIATION CADET OPEN MESS, IS PAID BY HIM TO SUCH MESS, WHICH IN TURN REIMBURSES THE CONTRACTOR FOR RAW FOOD COSTS AVERAGING $39.73 AND RETAINS AS DUES THE DIFFERENCE BETWEEN THAT AMOUNT AND $47.88 PROVIDED BY THE CADET.

BY LETTER DATED OCTOBER 15, 1958, COPY ATTACHED, ADDRESSED TO THE COMMANDER, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, AN ADMINISTRATIVE EXPLANATION WAS REQUESTED AS TO WHY REIMBURSEMENT TO THE CONTRACTOR BY THE CADETS OR THE AVIATION CADET OPEN MESS SHOULD BE RESTRICTED TO THE RAW FOOD COSTS AND WHY THE DIFFERENCE BETWEEN SUCH COSTS AND THE SUBSISTENCE ALLOWANCE SHOULD NOT BE REQUIRED TO BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION FROM WHICH THE CONTRACTOR IS PAID. THE LETTER REFERRED TO THE REQUIREMENT OF SECTION 610 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1958, PUBLIC LAW 85-117, APPROVED AUGUST 2, 1957, 71 STAT. 325, THAT THE RATES FOR MEALS SOLD TO OFFICERS AND CIVILIANS MUST BE SUFFICIENT TO PROVIDE REIMBURSEMENT OF OPERATING EXPENSES AND FOOD COSTS TO THE APPROPRIATION INVOLVED, AND, STATED FURTHER, THAT THE RIGHTS OF AVIATION CADETS TO SUBSISTENCE ALLOWANCE ARE BY STATUTE THE SAME AS THOSE OF OFFICERS, CITING MORRISS V. UNITED STATES, 134 C.1CLS. 730; 25 COMP. GEN. 816; 29 ID. 163 AND 30 ID. 246, AS AUTHORITY FOR THE BELIEF THAT THE APPROPRIATION OUT OF WHICH THE CONTRACT PAYMENTS ARE MADE IS BEING NEEDLESSLY OBLIGATED BY THE EXCESS FOOD SERVICE COST, WHICH IS IN EFFECT A SUBSIDY TO THE CADETS.

THE REPLY DATED MARCH 24, 1959, FORWARDED A COPY OF A REPORT DATED DECEMBER 13, 1957, FROM THE OFFICE OF THE DEPUTY FOR PROCUREMENT AND CONTRACT ADMINISTRATION, RANDOLPH AIR FORCE BASE, TEXAS, STATING IN EFFECT THAT THE ACTION TAKEN WAS IN ACCORDANCE WITH FLYING TRAINING AIR FORCE REGULATION 146-1 WHICH REQUIRED OFFICERS AND CIVIL SERVICE EMPLOYEES TO PAY PRO RATA SHARE OF RAW FOOD COSTS PLUS APPROPRIATE SURCHARGE RATES BUT PROVIDED THAT AVIATION CADETS WERE TO PAY FOR RAW FOOD COSTS ONLY. THIS REGULATION IS STATED TO BE BASED ON AIR FORCE REGULATION 146-5, PARAGRAPH 2 OF WHICH PROVIDES THAT AVIATION CADETS WILL REIMBURSE THE GOVERNMENT "FOR FOOD COSTS ONLY.' A SUPPLEMENTAL LETTER DATED JUNE 2, 1959, ADDED THAT ALTHOUGH IT IS TRUE THAT 32 (37) U.S.C. 251 PROVIDES THAT AVIATION CADETS ARE ENTITLED TO THE SAME SUBSISTENCE ALLOWANCE AS OFFICERS, 10 U.S.C. 8257 (A) IDENTIFIES AN AVIATION CADET AS A SPECIAL ENLISTED GRADE AND THE PROVISIONS OF SECTION 610, PUBLIC LAW 85-117, PERTAIN TO OFFICERS AND CIVILIAN EMPLOYEES ONLY. IT WAS CONCLUDED, THEREFORE, THAT AIR FORCE REGULATION 146-5 PROPERLY REQUIRES AVIATION CADETS TO REIMBURSE THE GOVERNMENT FOR RAW FOOD COSTS ONLY.

NO EXPLANATION HAS BEEN FURNISHED AS TO WHY RAW FOOD COST AND OTHER NECESSARY MESS EXPENSES ARE THOUGHT TO BE IN DIFFERENT CATEGORIES FOR REIMBURSEMENT PURPOSES BY OFFICERS AND BY AVIATION CADETS. NOTHING IN THE CITED PROVISIONS OF LAW OR IN THE DIFFERENCE IN MILITARY STATUS APPEARS TO JUSTIFY GROUP OF ENLISTED PERSONNEL AND ENLISTED MEMBERS ARE GENERALLY SUBSISTED IN KIND AT GOVERNMENT EXPENSE, IT WAS NOT INTENDED THAT AVIATION CADETS NORMALLY BE SO SUBSISTED SINCE THEY, LIKE OFFICERS, ARE ENTITLED TO A SUBSISTENCE ALLOWANCE "AT ALL TIMES," WHETHER OR NOT MESSING FACILITIES ARE AVAILABLE. THEY ARE REQUIRE TO PAY FOR MEALS FURNISHED THEM AT MILITARY ESTABLISHMENTS. SINCE THEIR STATUS IS THE SAME AS THAT OF OFFICERS UNDER SECTION 301 (A) OF THE CAREER COMPENSATION ACT, THEIR RIGHTS MUST BE CONSIDERED AS GOVERNED BY THE SAME UNDERLYING PRINCIPLE AS THAT WHICH GOVERNS THE SUBSISTENCE ALLOWANCE PAID TO SUCH OFFICERS.

IN THE CASE OF MORRISS V. UNITED STATES, 134 C.1CLS. 720, THE COURT STATED THAT THE PURPOSE OF THE SUBSISTENCE ALLOWANCE WAS "TO RELIEVE AN OFFICER OF THE EXPENSE OF FURNISHING HIMSELF WITH FOOD AND DRINK.' THAT CASE, A MEDICAL OFFICER IN THE UNITED STATES AIR FORCE ON ACTIVE DUTY AS AN INTERN IN A PRIVATE HOSPITAL WAS SUBSISTED WITHOUT CHARGE AT THE HOSPITAL. THE COURT HELD THAT ALTHOUGH AN OFFICER WAS ENTITLED TO A SUBSISTENCE ALLOWANCE "AT ALL TIMES," WHETHER SUBSISTENCE IS FURNISHED BY THE GOVERNMENT OR NOT, IF THE SUBSISTENCE WAS FURNISHED BY THE GOVERNMENT, THE OFFICER WAS REQUIRED TO PAY THE GOVERNMENT FOR IT. THE COURT STATED FURTHER THAT THE PURPOSE OF CONGRESS WOULD BE THWARTED IF PLAINTIFF WERE PAID IN SUBSISTENCE ALLOWANCE "WHEN MEALS WERE FURNISHED HIM BY AN AGENCY WHICH DID SO IN DISCHARGE OF AN OBLIGATION FOR SERVICES RENDERED BY AN AGENT OF THE GOVERNMENT IN DISCHARGE OF THE AGENT'S DUTY TO THE GOVERNMENT.'

CONGRESS HAS CLEARLY EXPRESSED ITS PURPOSE IN THE MATTER BY THE ENACTMENT OF RESTRICTIONS IN THE ANNUAL DEPARTMENT OF DEFENSE APPROPRIATIONS ACTS, COMMENCING WITH SECTION 625 OF THE 1951 APPROPRIATION ACT, 64 STAT. 756 (SEE SECTION 609 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1960, 73 STAT. 379, FOR PROVISIONS CURRENTLY IN EFFECT), PROVIDING THAT NO APPROPRIATION CONTAINED IN THAT ACT SHALL BE AVAILABLE FOR EXPENSES OF OPERATION OF MESSES AT WHICH MEALS ARE SOLD TO OFFICERS OR CIVILIANS, EXCEPT UNDER REGULATIONS APPROVED BY THE SECRETARY OF DEFENSE, WHICH SHALL (EXCEPT UNDER UNUSUAL OR EXTRAORDINARY CONDITIONS) ESTABLISH COSTS FOR SUCH MEALS SUFFICIENT TO PROVIDE REIMBURSEMENT OF OPERATING EXPENSES AND FOOD COSTS TO THE APPROPRIATION CONCERNED. SUCH PROVISIONS SPECIFICALLY EXEMPT THOSE ORGANIZED MESSES WHEREIN THE OPERATING EXPENSES WERE FINANCED PRINCIPALLY FROM NONAPPROPRIATED FUNDS. ON PAGE 2545, PART 5 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 81ST CONGRESS, COVERING THE DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1951, IT WAS STATED:

MR. TRACY. SECTION 626, AN ENTIRELY NEW SECTION, PROHIBITS THE USE OF APPROPRIATED FUNDS TO FINANCE THE OPERATION OF MESSES WHICH SELL MEALS TO OFFICERS OR CIVILIANS UNLESS THE RATES CHARGED ARE SUFFICIENT TO REIMBURSE THE APPROPRIATIONS FOR THE FOOD COSTS AND OPERATING EXPENSES, EXCEPT UNDER UNUSUAL OR EXTRAORDINARY CONDITIONS. HOWEVER, THE SECTION DOES NOT APPLY TO MESSES FINANCED PRINCIPALLY FROM NON APPROPRIATED FUNDS.

FROM THE FOREGOING, IT IS CONCLUDED THAT THE PURPOSE OF THE CITED PROVISIONS OF LAW IS TO REQUIRE REIMBURSEMENT TO THE APPROPRIATION CONCERNED, OF THE COST OF MEALS FURNISHED BY THE GOVERNMENT, BY ALL PERSONS SUCH AS CIVILIANS AND OFFICERS, WHO ARE NOT ENTITLED TO SUBSISTENCE AT GOVERNMENT EXPENSE OR WHO HAVE BEEN PAID A SUBSISTENCE ALLOWANCE. THE MEASURE OF THE REIMBURSEMENT IS NOT ONLY THE FOOD COSTS BUT ALSO INCLUDES THE OPERATING EXPENSES. IT IS NOT BELIEVED THAT IN DESCRIBING THE MESSES INVOLVED AS THOSE "AT WHICH MEALS ARE SOLD TO OFFICERS OR CIVILIANS," THE CONGRESS INTENDED THAT ONLY SUCH CLASSES OF PERSONS SHOULD BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE COST OF BOTH FOOD AND OPERATING EXPENSES, WHILE OTHERS, SUCH AS AVIATION CADETS WHO RECEIVE THE SAME ALLOWANCE AS IS PAID TO OFFICERS, SHOULD PAY ONLY A PART OF SUCH COSTS. IT IS OUR VIEW THAT THIS REIMBURSEMENT REQUIREMENT APPLIES NOT ONLY TO CIVILIAN PERSONNEL AND OFFICERS OF THE ARMED SERVICES, BUT ALSO TO ANY OTHER MEMBERS OF THE ARMED SERVICES WHOSE RIGHT TO SUBSISTENCE ALLOWANCE IS ASSIMILATED TO THAT OF OFFICERS.

THE EXPENSE OF OPERATING THE MESS AT HONDO, TEXAS, AT WHICH MEALS ARE FURNISHED TO AVIATION CADETS, IS PROPERLY CHARGEABLE TO THE APPROPRIATION OUT OF WHICH THE CONTRACTOR IS PAID. THE CONTRACTOR, AS AN AGENT OF THE GOVERNMENT, IS PROVIDING MEALS USUALLY FURNISHED BY THE GOVERNMENT AT A GENERAL OR TROOP MESS AND THE REIMBURSEMENT OF THE COSTS TO BE CREDITED TO THE APPROPRIATION INVOLVED PROPERLY INCLUDES BOTH THE RAW FOOD COSTS AND THE SURCHARGE OR OPERATING EXPENSES. IN THE CIRCUMSTANCES, IT IS BELIEVED THAT NOT ONLY CIVILIAN EMPLOYEES AND OFFICERS MUST BE CHARGED FOR THE RAW FOOD COSTS PLUS THE SURCHARGE, BUT AVIATION CADETS AS WELL. AIR FORCE REGULATION 146-5 AND FLYING TRAINING AIR FORCE REGULATION 146-1 APPEAR TO BE CONTRARY TO LAW TO THE EXTENT INDICATED ABOVE.

THE MATTER IS BROUGHT TO YOUR ATTENTION FOR SUCH ACTION AS YOU MAY DEEM APPROPRIATE, WITH THE REQUEST THAT WE BE ADVISED OF THE ACTION TAKEN.