B-145298, MAR. 28, 1961

B-145298, MAR. 28, 1961

TO RICHARD W. CHAPMAN:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1961, WITH ENCLOSURES, FORWARDED HERE BY HONORABLE HUGH ALEXANDER, MEMBER OF CONGRESS, CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD NOVEMBER 1, 1958, TO MARCH 24, 1960, WHILE ON DUTY AT LACKLAND AIR FORCE BASE, TEXAS.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 30, 1960, OF OUR CLAIMS DIVISION FOR THE REASON THAT YOU FAILED TO SECURE PERMISSION FROM THE COMMANDER TO MESS SEPARATELY AT THAT BASE PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM. YOU URGE THAT YOUR CLAIM BE ALLOWED SINCE YOU HAVE VERIFIED THAT YOU DID RESIDE OFF BASE AND THAT YOU WERE NOT PAID SEPARATE RATIONS DURING THE PERIOD IN QUESTION.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE OF ONE OF THREE TYPES, TYPE (2) OF WHICH IS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' IN SUBSECTION (D), THE PRESIDENT OF THE UNITED STATES IS AUTHORIZED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SECTION 3 (C) OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, STATES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

A REPORT BY HEADQUARTERS, LACKLAND MILITARY TRAINING CENTER (ATC), LACKLAND AIR FORCE BASE, TEXAS, DATED SEPTEMBER 13, 1960, STATES THAT AN INVESTIGATION SHOWS THAT YOU "DID NOT MAKE APPLICATION FOR PERMISSION TO RATION SEPARATELY" AND THAT, THEREFORE, YOU DID NOT RECEIVE SEPARATE RATIONS DURING THE PERIOD IN QUESTION. WHILE ATC FORM 53, DATED SEPTEMBER 8, 1960, PURPORTS TO GRANT RETROACTIVE PERMISSION FOR YOU TO MESS SEPARATELY DURING THE PERIOD OF YOUR CLAIM, IT IS OUR VIEW THAT A MEMBER WHO SECURES HIS OWN MEALS AWAY FROM AN AVAILABLE GOVERNMENT MESS WITHOUT BEING AUTHORIZED TO DO SO, CANNOT BE SAID TO HAVE BEEN GRANTED PERMISSION TO MESS SEPARATELY WITHIN THE MEANING OF THE CITED PROVISIONS OF LAW AND REGULATIONS, EVEN THOUGH AN ATTEMPT IS MADE TO GRANT SUCH PERMISSION RETROACTIVELY. THE AMOUNT PAID TO THE MEMBER AS A SUBSISTENCE ALLOWANCE WHEN PERMISSION TO MESS SEPARATELY IS GRANTED IS THE AMOUNT DETERMINED TO BE THE DAILY COST OF FURNISHING MEALS FOR THE MEMBER AT THE MESS. MERE ABSENCE FROM THE MESS BY A MEMBER ASSIGNED TO THE MESS RESULTS IN NO SAVINGS TO THE GOVERNMENT AND IT IS ONLY WHERE PERMISSION TO MESS SEPARATELY IS ADMINISTRATIVELY AUTHORIZED THAT IT IS POSSIBLE FOR THE GOVERNMENT TO REALIZE THE BENEFIT OF A MEMBER'S ABSENCE FROM THE MESS. SINCE THE INFORMATION FURNISHED FAILS TO SHOW THAT YOU WERE GRANTED PERMISSION TO MESS SEPARATELY, PRIOR TO ANY PORTION OF THE PERIOD COVERED BY YOUR CLAIM, YOU HAVE NOT MET THE CONDITIONS OF THE STATUTE AND REGULATIONS AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.