B-143291, SEP. 21, 1960

B-143291, SEP. 21, 1960

TO MR. DONALD T. ZODROW:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 9, 1960, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 13, 1960, WHICH DISALLOWED YOUR CLAIM FOR THE APPROXIMATE AMOUNT OF $330, REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT OF THE BASIC ALLOWANCE FOR SUBSISTENCE, AT THE RATE OF $2.57 A DAY, WHICH YOU BELIEVE YOU SHOULD HAVE RECEIVED FOR THE PERIOD FROM JULY 31, 1956, THROUGH JUNE 30, 1957, AND THE AMOUNTS WHICH YOU RECEIVED AS SEPARATE RATIONS AND AS SUPPLEMENTAL SUBSISTENCE ALLOWANCE FOR THAT PERIOD, DURING WHICH PERIOD YOU STATE THAT YOU WERE STATIONED IN TOKYO, JAPAN, WITH THE COUNTER INTELLIGENCE CORPS OF THE U.S. ARMY. ALSO, WE HAVE RECEIVED A LETTER DATED AUGUST 15, 1960, FROM HONORABLE ALVIN E. O-KONSKI, MEMBER OF CONGRESS, ENCLOSING YOUR LETTER DATED AUGUST 13, 1960, TO HIM CONCERNING THE SAME MATTER.

YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT YOU PROPERLY WERE PAID SEPARATE RATIONS FOR THE PERIOD INVOLVED, SUCH PAYMENT HAVING BEEN DULY AUTHORIZED BY A DD FORM 114, ISSUED UNDER THE APPLICABLE REGULATIONS, AUTHORIZING YOU TO MESS SEPARATELY, EFFECTIVE JULY 31, 1956.

YOU HAVE STATED IN YOUR CLAIM THAT, BY SPECIAL ORDERS NO. 133, HEADQUARTERS 3D OPERATIONS GROUP, APO 613, DATED JULY 26, 1956, YOU WERE AUTHORIZED A BASIC ALLOWANCE FOR SUBSISTENCE (3 MEALS DAILY, 7 DAYS WEEKLY) FOR AN INDEFINITE PERIOD, EFFECTIVE JUNE 24, 1956; THAT THE AUTHORIZATION WAS BASED ON THE UNAVAILABILITY OF GOVERNMENT MESSING FACILITIES IN THAT UTILIZATION OF EXISTING FACILITIES WOULD ADVERSELY AFFECT THE PERFORMANCE OF YOUR ASSIGNED DUTIES; THAT SIMULTANEOUSLY WITH YOUR MARRIAGE, ON JULY 31, 1956, YOU STARTED RECEIVING SEPARATE RATIONS AND SUPPLEMENTAL BASIC ALLOWANCE FOR SUBSISTENCE OF A TOTAL LESS THAN THAT AUTHORIZED BY SPECIAL ORDERS NO. 133; AND THAT THIS CONTINUED FOR 11 MONTHS UNTIL JULY 1, 1957, WHEN, BY SPECIAL ORDERS NO. 122, HEADQUARTERS 3D OPERATIONS GROUP, APO 613, DATED JULY 23, 1957, YOU AGAIN WERE AUTHORIZED BASIC ALLOWANCE FOR SUBSISTENCE (3 MEALS DAILY, 7 DAYS WEEKLY) FOR AN INDEFINITE PERIOD.

YOU SAY THAT YOUR RANK AND ENLISTED STATUS WERE CLASSIFIED; THAT YOU CARRIED OUT YOUR DUTIES IN CIVILIAN CLOTHES; THAT YOU WERE UNABLE TO UTILIZE THE GOVERNMENT MESS WITHOUT REVEALING YOUR ENLISTED STATUS; AND THAT THE PERFORMANCE OF YOUR DUTIES REQUIRED YOU TO BE BILLETED AWAY FROM YOUR DUTY STATION. YOU SAY THAT IT IS EVIDENT, THEREFORE, THAT GOVERNMENT MESS WAS NOT AVAILABLE TO YOU AND THAT IT WAS ERRONEOUS TO PAY YOU SEPARATE RATIONS, SINCE PERMISSION TO MESS SEPARATELY PRESUPPOSES AVAILABILITY OF GOVERNMENT MESS. YOU ALSO SAY THAT THE REASONS FOR ORIGINALLY AUTHORIZING YOUR BASIC ALLOWANCE FOR SUBSISTENCE AT $2.57 A DAY UNDER SPECIAL ORDERS NO. 133 REMAINED UNCHANGED DURING THE ENTIRE 11-MONTH PERIOD COVERED BY YOUR CLAIM AND THAT, THEREFORE, YOUR SUBSISTENCE ALLOWANCE SHOULD HAVE REMAINED UNCHANGED ALSO. IT APPEARS THAT YOU CONSIDER THAT YOU WERE PAID SEPARATE RATIONS INSTEAD OF BASIC ALLOWANCE FOR SUBSISTENCE, BEGINNING JULY 31, 1956, BECAUSE OF THE FACT THAT YOU MARRIED ON THAT DATE. IN THIS CONNECTION, YOU STATE THAT YOU WERE STILL MARRIED AT THE TIME OF ISSUANCE OF SPECIAL ORDERS NO. 122, DATED JULY 23, 1957, AUTHORIZING BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 A DAY, EFFECTIVE JULY 1, 1957. YOU SAY THAT THE ISSUANCE OF THOSE ORDERS WAS A TACIT ADMISSION OF ERROR IN PAYING YOU SEPARATE RATIONS. ALSO, YOU CONTEND THAT THE DD FORM NO. 114, UNDER WHICH YOU WERE PAID SEPARATE RATIONS FOR THE PERIOD FROM JULY 31, 1956, THROUGH JUNE 30, 1957, WAS OF NO CONSEQUENCE, SINCE IT WAS ISSUED WITHOUT THE BENEFIT OF COMPETENT ORDERS EITHER TERMINATING YOUR BASIC ALLOWANCE FOR SUBSISTENCE OR AUTHORIZING SEPARATE RATIONS.

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 (F) PROVIDES THAT ENLISTED MEMBERS GRANTED PERMISSION TO MESS SEPARATELY WHOSE DUTIES REQUIRE THEM TO PURCHASE ONE OR MORE MEALS FROM OTHER THAN GOVERNMENT MESSES SHALL BE ENTITLED TO NOT TO EXCEED THE PRO RATA ALLOWANCE AUTHORIZED FOR EACH SUCH MEAL FOR ENLISTED MEMBERS WHEN RATIONS IN KIND ARE NOT AVAILABLE. SUBSECTION 301 (D) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION.

SUBSECTION 3 (B), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER AUTHORITY CONTAINED IN SUBSECTION 301 (D) OF THE CAREER COMPENSATION ACT OF 1949, PROVIDES THAT THE TERM "WHEN RATIONS IN KIND ARE NOT AVAILABLE" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE IT IS DETERMINED, IN ACCORDANCE WITH THE REGULATIONS PRESCRIBED, THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. SUBSECTION 3 (C) OF THE EXECUTIVE ORDER 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 OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

THE REGULATIONS HERE APPLICABLE, ISSUED UNDER SECTION 2 OF THE EXECUTIVE ORDER, ARE CONTAINED IN ARMY REGULATIONS NO. 35-1460, DATED FEBRUARY 17, 1956, AND CHANGES NO. 1 THERETO, DATED AUGUST 28, 1956. IT IS SPECIFICALLY PROVIDED IN PARAGRAPH 17 OF THOSE REGULATIONS THAT THE CREDIT FOR BASIC ALLOWANCE FOR SUBSISTENCE WILL BE STARTED OR STOPPED ON THE BASIS OF A DD FORM 114, STATING THE DATE AND HOUR OF COMMENCEMENT OR STOPPAGE, THE TYPE OF ALLOWANCE TO WHICH THE ENLISTED MEMBER IS OR WAS ENTITLED, AND THE SPECIFIC DAYS AND MEALS FOR WHICH THE ALLOWANCE IS PAYABLE.

ARMY REGULATIONS NO. 35-2005, DATED MAY 28, 1956, CONTAIN THE APPLICABLE REGULATIONS RELATING TO SUBSTANTIATING DOCUMENTS USED IN THE PAYMENT OF MEMBERS OF THE ARMY IN THE ACTIVE MILITARY SERVICE. IN PARAGRAPH 1 OF THOSE REGULATIONS IT IS STATED THAT THE LEGALITY OF A CREDIT OF PAY AND ALLOWANCES IS DETERMINED BY APPLICABLE LEGISLATIVE AUTHORITY, EXECUTIVE ORDERS, AND REGULATIONS ISSUED PURSUANT TO LAW. IT IS ALSO THERE STATED THAT TWO FACTORS ARE INVOLVED IN EACH CREDIT:ENTITLEMENT AND SUBSTANTIATION. SECTION III OF THOSE REGULATIONS RELATES TO TYPES OF SUBSTANTIATING DOCUMENTS AND INCLUDES PARAGRAPHS 5 AND 6, WHICH READ, IN PERTINENT PART, AS FOLLOWS:

"5. SOURCE DOCUMENTS. SOURCE DOCUMENTS ARE DEFINED AS THOSE OFFICIAL DOCUMENTS WHICH ARE PREPARED PRIMARILY FOR OTHER ADMINISTRATIVE PURPOSES; E.G., SPECIAL ORDERS, LETTER ORDERS, ENLISTMENT AND INDUCTION RECORDS, COURT-MARTIAL ORDERS, DOCUMENTS ASSIGNING AND TERMINATING ASSIGNMENT TO QUARTERS, AND CERTIFICATES AND AFFIDAVITS OF INDIVIDUALS. THESE DOCUMENTS WILL BE USED TO THE MAXIMUM EXTENT POSSIBLE AS THE MEDIA FOR FURNISHING PAY DATA TO THE FINANCE AND ACCOUNTING OFFICER IN LIEU OF DD FORM 114 (MILITARY PAY ORDER). * * *

"6. MILITARY PAY ORDER (DD FORM 114). DD FORM 114 WILL BE USED TO FURNISH PAY DATA TO THE FINANCE AND ACCOUNTING OFFICER WHEN IT IS NOT FEASIBLE TO USE SOURCE DOCUMENTS FOR THIS PURPOSE. * * *"

PARAGRAPH 10 OF THOSE REGULATIONS RELATES TO PREPARATION AND PROCESSING OF SUBSTANTIATING DOCUMENTS AND SUBPARAGRAPH A OF THAT PARAGRAPH RELATES TO DD FORM 114 (MILITARY PAY ORDER). IT IS THERE PROVIDED THAT THE PERSONNEL OFFICER MAY PREPARE INDIVIDUAL OR GROUP MILITARY PAY ORDERS, EITHER OF WHICH MAY LIST ONE OR MORE CHANGES FOR AN INDIVIDUAL.

MILITARY PAY ORDER NO. 41 (DD FORM 114), HEADQUARTERS 3D OPERATIONS GROUP, APO 613, DATED AUGUST 9, 1956, AUTHORIZED THE DISBURSING OFFICER TO ADJUST YOUR PAY RECORD, THE REASON FOR CHANGE BEING SHOWN AS: "AUTH TO MESS SEP EFF 31 JUL.' MILITARY PAY ORDER NO. 48 (DD FORM 114) OF THE SAME HEADQUARTERS, DATED 17 AUGUST 1956, AUTHORIZED THE DISBURSING OFFICER TO ADJUST YOUR PAY RECORDS, THE REASON FOR CHANGE BEING SHOWN AS: "DUE EM BAS 24--- 30 JUN $2.57 P/D AND 1--- 30 JUL 56.' IT IS TO BE NOTED THAT THOSE MILITARY PAY ORDERS WERE SIGNED BY "L. D. NOLAND, CWO, W-2, ," WHO ALSO SIGNED SPECIAL ORDERS NO. 133, DATED JULY 26, 1956. MILITARY PAY ORDER NO. 30 (DD FORM 114), HEADQUARTERS 3D OPERATIONS GROUP, APO 613, DATED AUGUST 7, 1957, AUTHORIZED THE DISBURSING OFFICER TO ADJUST YOUR PAY RECORDS, THE REASONS FOR CHANGE BEING SHOWN AS FOLLOWS: (1) "TERM SEP RATS EFF 30 JUN 57 PER SO 122, THIS HQS DTD 23 JUL 57; " (2) "BAS $2.57 P/D EFF 1 JUL 57; " (3) "BAS $2.57 P/D TERM EFF 31 JUL 57 PER SO 130 THIS HQS DTD 1 AUG 57; " AND (4) "AUTH TO SEP RATS EFF 1 AUG 57.' THE RECORDS SHOW THAT YOU WERE PAID SEPARATE RATIONS FOR THE PERIOD FROM JULY 30, 1956, THROUGH JUNE 30, 1957, AND THAT FOR SUCH PERIOD YOU WERE ALSO PAID SUPPLEMENTAL BASIC ALLOWANCE FOR SUBSISTENCE FOR 259 NOON MEALS. PAYMENT FOR THOSE MEALS WAS SUPPORTED BY MONTHLY MILITARY PAY ORDERS (DD FORM 114) AS REQUIRED BY THE REGULATIONS. IT MUST BE CONCLUDED, ON THE BASIS OF SUCH ACTION, THAT IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR ASSIGNED DUTY REQUIRED YOU TO PURCHASE THOSE MEALS FROM OTHER THAN GOVERNMENT MESS BUT THAT RATIONS IN KIND WERE OTHERWISE AVAILABLE TO YOU FOR THE PERIOD INVOLVED. THE RECORDS FURTHER SHOW THAT YOU WERE PAID BASIC ALLOWANCE FOR SUBSISTENCE, AT $2.57 A DAY, FOR THE MONTH OF JULY 1957 BUT THAT, FOR THE PERIOD BEGINNING AUGUST 1, 1957, YOU WERE AGAIN PAID SEPARATE RATIONS.

IN VIEW OF THE APPLICABLE STATUTORY PROVISIONS AND THE APPLICABLE REGULATIONS, AS SET FORTH ABOVE, IT APPEARS THAT MILITARY PAY ORDER NO. 41 (DD FORM 114), DATED AUGUST 9, 1956, CONSTITUTED PROPER AUTHORITY FOR THE PAYMENT TO YOU OF SEPARATE RATIONS FOR THE PERIOD FROM JULY 31, 1956, TO JUNE 30, 1957, AND THAT SUCH MILITARY PAY ORDER, IN EFFECT, TERMINATED THE BASIC ALLOWANCE FOR SUBSISTENCE AUTHORIZED BY SPECIAL ORDERS NO. 133, DATED JULY 26, 1956. AS TO YOUR CONTENTION THAT NO COMPETENT ORDERS WERE EVER ISSUED WHICH TERMINATED THE BASIC ALLOWANCE FOR SUBSISTENCE AUTHORIZED BY SPECIAL ORDERS NO. 133, YOU ARE ADVISED THAT THE REGULATIONS CONTAIN NOTHING WHICH CAN BE CONSTRUED AS REQUIRING THE ISSUANCE OF ORDERS SPECIFICALLY TERMINATING A BASIC ALLOWANCE FOR SUBSISTENCE SO AUTHORIZED. ACCORDINGLY, THE SETTLEMENT OF MAY 13, 1960, DISALLOWING YOUR CLAIM, IS SUSTAINED.