B-143627, OCT. 18, 1960

B-143627, OCT. 18, 1960

TO MASTER SERGEANT CARL M. ROE:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 11, 1960, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 18, 1959, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE AT $2.57 PER DAY FOR THE PERIOD MARCH 21, 1957, TO FEBRUARY 10, 1958, LESS SEPARATE RATIONS FOR THE SAME PERIOD AND 57 CENTS PER DAY FOR BREAKFAST FOR THE PERIOD MARCH 21, 1957, TO FEBRUARY 13, 1958, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

BY SPECIAL ORDERS NO. 48, ISSUED MARCH 11, 1957, BY HEADQUARTERS, SUBCAMP DRAKE, APO 613, YOU WERE ATTACHED TO HEADQUARTERS BATTERY, FIRST CAVALRY DIVISION ARTILLERY, APO 201, FOR DUTY AS SECRETARY CUSTODIAN OF THE CAMP DRAKE NON-COMMISSIONED OFFICERS OPEN MESS, EFFECTIVE MARCH 12, 1957. SUPPORT OF YOUR CLAIM YOU STATE THAT YOUR DUTY AS SECRETARY-CUSTODIAN REQUIRED 10 HOURS A DAY AS A MINIMUM, THOUGH YOU ACTUALLY SPENT MANY MORE; THAT THE NON-COMMISSIONED OFFICERS MESS HALLS WERE ON THE NORTH CAMP DRAKE RESERVATION WHILE THE GOVERNMENT MESS HALLS WERE ON THE SOUTH CAMP DRAKE RESERVATION; THAT DURING THE TIME OF THE SERVING OF MEALS IN THE MESS HALLS, YOU WERE BUSY WITH MEALS BEING SERVED IN THE OPEN MESSES; AND THAT THE TIME CONSUMED IN TRAVEL BETWEEN THESE FACILITIES DID NOT PERMIT DAILY ABSENCE OR TIME FOR TAKING YOUR MEALS, EXCEPT BREAKFAST, IN THE GOVERNMENT MESSES. ON SUCH BASIS, YOU URGE THAT YOU ARE ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 251, PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, EACH ENLISTED MEMBER OF THE UNIFORMED SERVICE ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE, WHICH SHALL BE ONE OF THE THREE TYPES: (1) WHEN 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. UNDER AUTHORITY OF SUBSECTION (D) THEREOF, REGULATIONS GOVERNING BASIC ALLOWANCES FOR SUBSISTENCE WERE PROMULGATED BY EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, 15 F.R. 1767, WHICH PROVIDES, UNDER SECTION 3 (B) 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 REGULATIONS PRESCRIBED PURSUANT TO SECTION 2 HEREOF, THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.'

PARAGRAPH 4-21C OF ARMY REGULATIONS 37-104, ISSUED PURSUANT TO EXECUTIVE ORDER NO. 10119, IS SUBSTANTIALLY A RESTATEMENT OF THE ABOVE QUOTED PROVISION. PARAGRAPH 4-26A IMPLEMENTS THE ACT AND EXECUTIVE ORDER WITH RESPECT TO THE RATES AT WHICH BASIC ALLOWANCE FOR SUBSISTENCE ARE PAYABLE TO AN ENLISTED MEMBER ON A DAILY BASIS.

PARAGRAPH 4-23 OF THE REGULATIONS PROVIDES:

"AUTHORIZATION FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE IS REQUIRED BEFORE SUCH PAYMENT MAY BE MADE. SUCH AUTHORIZATION WILL BE ISSUED CONTEMPORANEOUSLY AFTER DETERMINATION IS MADE THAT RATIONS IN KIND ARE NOT AVAILABLE OR THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. THE DETERMINATION OF THE COMMANDING OFFICER IS CONCLUSIVE OF THE RIGHTS OF THE PERSON. SEE 8 COMP. GEN. 82.'

IT HAS LONG BEEN ESTABLISHED THAT PAYMENT OF MONETARY ALLOWANCES IN LIEU OF QUARTERS AND SUBSISTENCE IN KIND, NORMALLY FURNISHED AN ENLISTED MEMBER OF THE ARMED SERVICES, IS CONTINGENT UPON PROPER APPROVAL BY THE MILITARY OR NAVAL AUTHORITIES CONCERNED, WHO ARE COGNIZANT OF THE ACTUAL CONDITIONS AND CIRCUMSTANCES INVOLVED. SUCH ORDERS, WHEN ISSUED, MUST BE CONTEMPORANEOUS WITH THE DUTY ASSIGNMENT ORDERS, AND ARE CONCLUSIVE ON ALL MEMBERS CONCERNED.

SINCE RATIONS IN KIND WERE AVAILABLE AT YOUR DUTY STATION AND SINCE IT APPEARS THAT NO CONTEMPORANEOUS DETERMINATION BY YOUR COMMANDING OFFICER WAS MADE, AS REQUIRED BY THE REGULATIONS, ENTITLING YOU TO BASIC ALLOWANCE FOR SUBSISTENCE, BUT ONLY AUTHORIZED YOU TO MESS SEPARATELY, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.