B-146491, FEB. 16, 1962

B-146491, FEB. 16, 1962

TO THE SECRETARY OF THE TREASURY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 22, 1962, REQUESTING THAT NOTICES OF EXCEPTION NOS. 200430, 200431, AND 200432, IN THE TOTAL AMOUNT OF $100,177.07, BE RECONSIDERED WITH A VIEW TO THEIR BEING REMOVED. THE EXCEPTIONS WERE TAKEN AGAINST AUTHORIZED CERTIFYING OFFICERS OF THE EIGHTH COAST GUARD DISTRICT IN CONNECTION WITH CERTIFICATIONS RELATING TO PAYMENTS OF BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY, THE RATE AUTHORIZED WHEN RATIONS IN KIND ARE NOT AVAILABLE, TO ENLISTED PERSONNEL ASSIGNED TO THE COAST GUARD AIR DETACHMENTS LOCATED AT NEW ORLEANS, LOUISIANA, BILOXI, MISSISSIPPI, AND CORPUS CHRISTI, TEXAS.

IN REQUESTING RECONSIDERATION OF THE NOTICES OF EXCEPTION, IT IS STATED THAT A COAST GUARD GENERAL MESS WAS NOT ESTABLISHED OR MAINTAINED AT ANY OF THE COAST GUARD UNITS IN QUESTION AND THAT ANY GENERAL MESSES WITHIN A REASONABLE DISTANCE OF THESE UNITS WERE OPERATED BY THE NAVY AND AIR FORCE UNDER THE DEPARTMENT OF DEFENSE. IT IS STATED THAT IT WAS NOT WITHIN THE SCOPE OF THE AUTHORITY OF THE OFFICER MAKING THE DETERMINATION OF AVAILABILITY TO ENTER INTO A FACILITIES AGREEMENT WITH THE DEPARTMENT OF DEFENSE FOR MESSING OF COAST GUARD PERSONNEL ON A PERMANENT BASIS, AND THAT SUCH AN ARRANGEMENT WOULD ENTAIL A CHANGE IN THE AUTHORIZED COMPLEMENT OF THESE UNITS SO AS TO PROVIDE FOR ASSIGNMENT OF COAST GUARD PERSONNEL TO THE NAVY AND AIR FORCE MESSES AS COOKS. IT IS SUGGESTED THAT THE ENLISTED MEMBERS COULD NOT USE THESE MESSES ON A "RATIONS IN IND" BASIS UNTIL ADMINISTRATIVE ARRANGEMENTS HAD BEEN MADE BY PROPER AUTHORITY; AND THEREFORE, THAT IT CANNOT BE CONSIDERED THAT A GOVERNMENT MESS WAS AVAILABLE TO THEM.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 251, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE INVOLVED HERE, WHEN RATIONS IN KIND ARE NOT AVAILABLE. LESSER RATE IS PROVIDED FOR ENLISTED MEN GRANTED PERMISSION TO MESS SEPARATELY. SECTION 301 (D) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SECTION 3 (B), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, 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 REGULATIONS PRESCRIBED PURSUANT TO SECTION 2 HEREOF, THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.' SECTION 2 PROVIDES THAT THE DEPARTMENT CONCERNED MAY ISSUE APPROPRIATE REGULATIONS.

APPLICABLE COAST GUARD REGULATIONS CONTAINED IN PARAGRAPH 2B01020, 2B01021, 4B01008 AND 4B01009, COAST GUARD COMPTROLLER MANUAL, PROVIDE THAT ENLISTED MEMBERS ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE. PARAGRAPH 2B01021-2A OF THE MANUAL FURTHER PROVIDES THAT DISTRICT COMMANDERS ARE AUTHORIZED TO GRANT BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PRESCRIBED IN PARAGRAPH 2B01020-3A (1) ($2.57 PER DAY) TO ENLISTED MEMBERS WHO ARE SO ENTITLED, AND THAT, IN THE DETERMINATION OF THIS AUTHORIZATION, THEY SHOULD CONSIDER RATIONS IN KIND AVAILABLE IF A GENERAL OR COMMUTED RATION MESS IS MAINTAINED AT THE ACTIVITY WHERE THE ENLISTED MEMBERS ARE SERVING OR WITHIN A REASONABLE DISTANCE THEREOF. PARAGRAPH 4B01009-2A CONTAINS A SIMILAR PROVISION.

IT IS OUR VIEW THAT THE FOREGOING STATUTE AND REGULATIONS AUTHORIZE PAYMENT TO ENLISTED MEMBERS OF THE COAST GUARD OF A BASIC ALLOWANCE AT THE INCREASED RATE OF $2.57 PER DAY ONLY WHEN IT IS PROPERLY DETERMINED BY THE DISTRICT COMMANDER THAT IT IS IMPRACTICABLE FOR THE GOVERNMENT TO FURNISH SUBSISTENCE IN KIND AT A GOVERNMENT, NOT NECESSARILY A COAST GUARD, INSTALLATION. IT IS CONTEMPLATED THAT SUCH A DETERMINATION MADE BY THE DISTRICT COMMANDER WILL BE BASED ON FACTS AND CIRCUMSTANCES WHICH REASONABLY JUSTIFY A CONCLUSION THAT THE FURNISHING OF SUBSISTENCE IN KIND BY THE GOVERNMENT IS IMPRACTICABLE. THE CITED ADMINISTRATIVE REGULATIONS PROVIDE THAT THE DISTRICT COMMANDER SHOULD CONSIDER THAT RATIONS IN KIND ARE AVAILABLE "IF A GENERAL OR COMMUTED RATION MESS IS MAINTAINED AT THE ACTIVITY WHERE THE ENLISTED MEMBERS ARE SERVING OR WITHIN A REASONABLE DISTANCE THEREOF.' THE RELATED CORRESPONDENCE CONSIDERED IN THIS MATTER INDICATES THAT GOVERNMENT MESSING FACILITIES ARE AND WERE AVAILABLE FOR THE COAST GUARD PERSONNEL INVOLVED BUT THAT THEY WERE NOT UTILIZED BECAUSE OF AN AUTHORIZATION FOR THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY ISSUED BY THE DISTRICT COMMANDER. SINCE SUCH ACTION ON HIS PART WAS WITHOUT AUTHORITY OF LAW, IT IS CONCLUDED THAT THE RECORD PRESENTS NO PROPER BASIS FOR REMOVAL OF THE NOTICES OF EXCEPTIONS.

YOU REQUEST TO BE ADVISED WHETHER COLLECTION OF THE AMOUNTS INVOLVED MAY BE SUSPENDED WHILE LEGISLATION IS SOUGHT TO VALIDATE THESE PAYMENTS. YOU STATE THAT THE AMOUNTS WOULD BE CARRIED IN SUSPENSE ON THE MILITARY PAY RECORD OF THE MEMBERS ON ACTIVE DUTY, SUBJECT TO COLLECTION IF THE MEMBER IS SEPARATED FROM ACTIVE DUTY PRIOR TO PASSAGE OF VALIDATING LEGISLATION AND THAT COLLECTION ACTION WOULD BE TAKEN AGAINST MEMBERS WHO HAVE SINCE BEEN SEPARATED FROM ACTIVE DUTY.

YOU ARE ADVISED THAT WE HAVE NO OBJECTION TO THE SUSPENSION OF COLLECTION ACTION IN THIS MATTER AS REQUESTED UNTIL THE 87TH CONGRESS HAS COMPLETED ACTION ON THE PROPOSED RELIEF LEGISLATION OR HAS ADJOURNED.