B-149001, JUL. 12, 1962

B-149001, JUL. 12, 1962

TO LIEUTENANT COLONEL ALAIN A. CHEVALIER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1962, AND SUBSEQUENT SECOND INDORSEMENT, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED JULY 8, 1952, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD JUNE 9, 1949, TO FEBRUARY 28, 1951, WHILE ASSIGNED TO DUTY IN THE FREE TERRITORY OF TRIESTE. YOU REQUEST RECONSIDERATION OF THE SETTLEMENT IN VIEW OF THE ACTION TAKEN BY THE COURT OF CLAIMS IN THE CASE OF AXUP V. UNITED STATES, CT.CL.NO. 56-53, OCTOBER 9, 1957.

IN YOUR COMMUNICATION OF APRIL 11, 1951, TO DISBURSING OFFICER, TRIESTE UNITED STATES TROOPS, APO 209, U.S. ARMY, IN WHICH YOU CLAIMED STATION PER DIEM ALLOWANCE YOU CERTIFIED THAT NO GOVERNMENT MESS WAS AVAILABLE EXCEPT DURING CERTAIN SPECIFIED BRIEF PERIODS OF FIELD DUTY. YOU ALSO CERTIFIED THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM JUNE 9, 1949, TO APRIL 11, 1951.

ARMY SPECIAL REGULATIONS 35-3080-1, DATED MAY 23, 1949, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, GOVERNED THE PAYMENT OF TRAVEL AND STATION PER DIEM TO MILITARY PERSONNEL ON DUTY OUTSIDE THE UNITED STATES. PARAGRAPH 2F (1) PROVIDED AS FOLLOWS:

"/1) FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS" MESS. ANY ORGANIZATIONAL MESS OPERATED FOR ARMY, AIR FORCE, OR NAVY ENLISTED PERSONNEL WILL BE CONSTRUED AS A "GOVERNMENT MESS" FOR THE PURPOSE OF THESE REGULATIONS. A RESTAURANT OR CAFETERIA OPERATED BY ARMY OR AIR FORCE EXCHANGES OR OFFICERS' CLUBS IS NOT CONSIDERED TO BE A "GOVERNMENT MESS.'"

PARAGRAPH 4A PROVIDED THAT STATION PER DIEM ALLOWANCES WERE AUTHORIZED WHERE GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS WERE NOT AVAILABLE.

THOSE REGULATIONS DID NOT CONTEMPLATE THE PAYMENT OF A STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS INSTALLATION IF EITHER AN OFFICERS' MESS OR ORGANIZATIONAL MESS FOR ENLISTED MEN WAS IN OPERATION. THE INFORMATION ORIGINALLY FURNISHED FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES AVAILABLE AT TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE. SUBSEQUENT INVESTIGATION BY REPRESENTATIVES OF THIS OFFICE INDICATED THAT WHILE SOME OFFICERS' MESSES WERE IN OPERATION AT ONE TIME, IT WAS NOT POSSIBLE TO DETERMINE WITH ANY DEGREE OF ACCURACY WHEN AND FOR WHAT OFFICERS THEY WERE AVAILABLE. HOWEVER, IT IS CLEAR THAT ORGANIZATIONAL MESSES FOR ENLISTED MEN WERE IN OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. CONSEQUENTLY IT WOULD APPEAR THAT A "GOVERNMENT MESS" AS DEFINED IN THE PERTINENT REGULATIONS WAS AVAILABLE TO YOU AS AN OFFICER DURING THE PERIOD OF YOUR CLAIM. SEE DECISION B-111431, MARCH 17, 1953, COPY ENCLOSED.

ALTHOUGH AS STATED IN YOUR LETTER, A JUDGMENT WAS GIVEN IN FAVOR OF THE CLAIMANTS IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES, CT.CL.NO. 56-53, SUCH ACTION WAS IN THE FORM OF AN ORDER ISSUED OCTOBER 9, 1957, BASED ON A STIPULATION OF THE PARTIES IN WHICH IT WAS STATED THAT AN OFFER WAS SUBMITTED BY THE PLAINTIFFS AND ACCEPTED ON BEHALF OF THE DEFENDANT WHEREBY THE PLAINTIFFS AGREED TO WITHDRAW ALL CLAIMS FOR PER DIEM SUBSISTENCE ALLOWANCES IF DEFENDANT WOULD AGREE TO PAY ALL UNPAID PER DIEM QUARTERS ALLOWANCES IN RESPECT TO THOSE PLAINTIFFS WHO BETWEEN SEPTEMBER 15, 1947, AND MARCH 31, 1951, (A)WERE IN TRIESTE (B) HAD DEPENDENTS IN TRIESTE AND (C) WERE NOT FORMALLY ASSIGNED GOVERNMENT-OWNED QUARTERS IN TRIESTE. THE PARTIES STIPULATED THAT JUDGMENT BE ENTERED FOR THE PLAINTIFFS NAMED AND IN THE AMOUNTS SHOWN, IN FULL SETTLEMENT AND SATISFACTION OF ALL (PER DIEM QUARTERS ALLOWANCE) ASSERTED IN THE PETITION. IT WAS FURTHER STIPULATED THAT THE CLAIM OF CERTAIN PLAINTIFFS FOR STATION PER DIEM ALLOWANCES BE DISMISSED AND THESE CLAIMS WERE DISMISSED WITH PREJUDICE. THUS, NO JUDGMENT ON THE QUESTION OF PER DIEM SUBSISTENCE ALLOWANCES WAS ENTERED IN FAVOR OF ANY OF THE PLAINTIFFS IN THE AXUP CASE. WHILE THE JUDGMENT IN THE AXUP CASE IS BINDING ONLY UPON THE PARTIES TO THAT ACTION, THE CONCLUSION TO BE DRAWN FROM THE DISMISSAL WITH PREJUDICE OF THE CLAIMS FOR PER DIEM SUBSISTENCE ALLOWANCE, IF ANY IS TO BE DRAWN, IS THAT YOU ARE NOT ENTITLED TO SUCH ALLOWANCE.

IN THESE CIRCUMSTANCES AND SINCE UNDER THE APPLICABLE REGULATIONS IT APPEARS THAT A GOVERNMENT MESS WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM, YOU ARE NOT ENTITLED TO PAYMENT OF STATION SUBSISTENCE PER DIEM ALLOWANCE.