B-150838, APRIL 5, 1963, 42 COMP. GEN. 558

B-150838, APRIL 5, 1963, 42 COMP. GEN. 558

SUBSISTENCE ALLOWANCE - RATIONS IN KIND AVAILABILITY - DETERMINATION ENLISTED MEN OF THE AIR FORCE AT AN OVERSEAS LOCATION WHO PRIOR TO THE AVAILABILITY OF MESSING FACILITIES RESIDED ON THE LOCAL ECONOMY AND WERE PAID A BASIC SUBSISTENCE ALLOWANCE AT A RATE AUTHORIZED WHEN RATIONS IN KIND ARE NOT AVAILABLE MAY NOT CONTINUE TO BE PAID SUCH RATE ON THE BASIS OF A GENERAL DETERMINATION THAT THE DISTANCE BETWEEN RESIDENCE AND PLACE OF DUTY MADE IT IMPRACTICABLE FOR THE MEN TO USE THE AVAILABLE MESS, SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 402, AND EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, REQUIRING THE DETERMINATION OF IMPRACTICABILITY TO BE MADE ON THE BASIS OF EACH MEMBER'S INDIVIDUAL CIRCUMSTANCES, DISTANCE BETWEEN RESIDENCE AND MESS NOT BEING A FACTOR FOR CONSIDERATION; THEREFORE, BASIC ALLOWANCE FOR SUBSISTENCE AT ANY RATE IN EXCESS OF THE SEPARATE RATIONS RATE MAY NOT BE AUTHORIZED UNLESS THE USE OF THE MESS WOULD INTERFERE WITH THE ACCOMPLISHMENT OF THE ORGANIZATION'S MISSION, OR MEALS ARE MISSED BY THE MEN BECAUSE OF SCHEDULED DUTY.

TO MAJOR A. C. BRIDEWELL, JR., DEPARTMENT OF THE AIR FORCE, APRIL 5, 1963:

BY LETTER DATED FEBRUARY 15, 1963, THE ASSISTANT CHIEF, PAY AND TRAVEL DIVISION, DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR LETTER OF AUGUST 14, 1962, REQUESTING ADVANCE DECISION AS TO THE PROPER RATE OF PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE FOR ENLISTED MEN IN ANKARA, TURKEY, EFFECTIVE MAY 1, 1962. THE REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO AF 688 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FILE ACCOMPANYING YOUR REQUEST DISCLOSES THAT PRIOR TO MAY 1, 1962, A GOVERNMENT MESS CAPABLE OF SERVING ALL THE ENLISTED MEN STATIONED IN THE ANKARA AREA WAS NOT AVAILABLE SO THAT THOSE MEN WHO ARE REQUIRED TO RESIDE ON THE LOCAL ECONOMY WERE MORE OR LESS AUTOMATICALLY PAID BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY. HOWEVER, A NEW OR ENLARGED GOVERNMENT MESS WAS ESTABLISHED MAY 1, 1962, WHICH WAS CAPABLE OF SERVING ALL ENLISTED SERVICE MEMBERS ON DUTY IN THE ANKARA METROPOLITAN AREA AND AS A CONSEQUENCE, MEMBERS LIVING ON THE LOCAL ECONOMY NO LONGER WERE PAID AT THE $2.57 RATE WHICH IS PAYABLE WHERE GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE, IN THE ABSENCE OF PROPER DETERMINATIONS IN THE CASE OF EACH INDIVIDUAL THAT IT WAS IMPRACTICABLE FOR HIM TO USE THE AVAILABLE MESS. THESE MEN HAVE BEEN ALLOWED THE SEPARATE RATIONS RATE OF $1.20 PER DAY AS THOUGH THEY WERE GIVEN PERMISSION TO MESS SEPARATELY.

YOU FORWARDED WITH YOUR SUBMISSION THE CLAIMS OF THREE ENLISTED MEN, TECHNICAL SERGEANT GERALD D. PETERS, STAFF SERGEANT JAMES D. HERRING AND MASTER SERGEANT WILLIAM J. BENNETT, WHO ARE ASSIGNED TO THREE DIFFERENT ORGANIZATIONS OPERATING AT PLACES IN THE ANKARA AREA--- LOCATED AT DISTANCES VARYING FROM 10.5 TO 1.1 MILES FROM THE GOVERNMENT MESS--- REQUESTING PAYMENT OF THE DIFFERENCE BETWEEN $1.20 AND $2.57 PER DAY FOR BASIC ALLOWANCE FOR SUBSISTENCE FROM MAY 1, 1962, TO THE PRESENT TIME. THE CLAIMS ARE SUPPORTED IN EACH CASE BY DETERMINATIONS OF THE COMMANDING OFFICERS OF THE INSTALLATIONS TO WHICH THE AIRMEN ARE ASSIGNED THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT TO ENLISTED MEMBERS ASSIGNED TO THEIR COMMAND, TOGETHER WITH MILITARY PAY ORDERS ON WHICH ARE LISTED A NUMBER OF AIRMEN INCLUDING THE CLAIMANTS) BEARING CERTIFICATES THAT THE AIRMEN SO LISTED ARE AUTHORIZED BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY DUE TO THE IMPRACTICABILITY OF FURNISHING RATIONS IN KIND TO THEM.

THE CLAIMS AND DETERMINATIONS OF THE COMMANDING OFFICERS CITE VARIOUS FACTORS TO JUSTIFY IMPRACTICABILITY, SUCH AS, DISTANCE BETWEEN PRIVATELY OBTAINED QUARTERS, PLACE OF DUTY AND THE AVAILABLE GOVERNMENT MESS, LACK OR INADEQUACY OF GOVERNMENT TRANSPORTATION, SCHEDULED DUTY AT HOURS WHEN THE GOVERNMENT MESS IS CLOSED, TRAFFIC AND WEATHER CONDITIONS, MORALE, ETC., PRINCIPAL RELIANCE BEING PLACED ON DISTANCE BETWEEN PLACE OF RESIDENCE AND PLACE OF DUTY.

YOU SAY THAT MOST ACTIVITIES ARE LOCATED WITHIN AN AREA THAT IS APPROXIMATELY TWO MILES LONG AND ONE MILE WIDE, THAT FOR MOST UNITS IN THE ANKARA AREA GOVERNMENT TRANSPORTATION FROM THE VARIOUS SITES HAS BEEN AND IS NOW BEING PROVIDED TO AND FROM THE DINING HALL AND THAT IN CASES WHERE SUCH TRANSPORTATION IS IMPRACTICABLE DUE TO DISTANCE AND THE SPECIFIC NATURE OF THE DUTIES PERFORMED, SUPPLEMENTAL SUBSISTENCE CLAIMS FOR MISSED MEALS ARE BEING PROCESSED. YOU ASK THE FOLLOWING QUESTIONS:

A. IS BAS AT THE INCREASED RATE PAYABLE BASED ON THESE CLAIMS?

B. IF QUESTION A. ABOVE IS ANSWERED IN THE AFFIRMATIVE, WHAT WOULD BE THE EFFECTIVE DATE?

C. ALTHOUGH THE CLAIMS SUBMITTED HEREWITH ARE REPRESENTATIVE OF 3 ORGANIZATIONS ONLY, CLAIMS WHICH ARE BASICALLY THE SAME COULD BE SUBMITTED BY FIFTEEN OTHER ORGANIZATIONS. ALL TOLD, OVER FIVE HUNDRED SERVICE MEMBERS IN THE ANKARA AREA ARE INVOLVED. IF THE THREE CLAIMS SUBMITTED ARE ACCEPTABLE FOR PAYMENT, WOULD THIS AUTHORITY EXTEND TO THE OTHER CLAIMS NOT SUBMITTED?

ON FEBRUARY 2, 1960, THE COMMANDER OF THE UNITED STATES LOGISTIC DETACHMENT 30, DETERMINED THAT SINCE ISSUANCE OF RATIONS IN KIND WAS NOT PRACTICABLE AND GOVERNMENT MESSING FACILITIES WERE NOT AVAILABLE IN ANKARA, TURKEY, ALL ENLISTED MEN RESIDING ON THE LOCAL ECONOMY WERE ELIGIBLE TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY. UPON COMPLETION OF THE NEW TUSLOG DETACHMENT 30 DINING FACILITY, THE COMMANDER OF THAT ORGANIZATION ON APRIL 25, 1962, ANNOUNCED ITS AVAILABILITY TO ALL ENLISTED MEMBERS ON DUTY IN OR RESIDING IN THE ANKARA METROPOLITAN AREA. HE THEREFORE DECLARED THAT A GOVERNMENT MESS WAS AVAILABLE EFFECTIVE MAY 1, 1962, AND THAT ALL CERTIFICATES ISSUED IN SUPPORT OF PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WOULD NO LONGER BE CONSIDERED VALID OR ACCEPTABLE BY THE DETACHMENT 30 ACCOUNTING AND FINANCE OFFICER. HE FURTHER STATED THAT AFTER MAY 1, 1962, THE $2.57 RATE WOULD BE ALLOWED ONLY TO THOSE MEMBERS FOR WHOM THE USE OF THE GOVERNMENT MESS OR ISSUANCE OF RATIONS IN KIND IS CONSIDERED IMPRACTICABLE BECAUSE OF DUTY ASSIGNMENT AND INDICATED THAT IN THE EVENT THE CIRCUMSTANCES ARE QUESTIONABLE AND WHERE IT APPEARS THAT THE REQUIREMENTS OF THE PERTINENT REGULATIONS HAVE NOT BEEN MET, THE ITEMS IN QUESTION WOULD BE FORWARDED TO THIS OFFICE FOR DECISION.

APPARENTLY AS A RESULT OF THIS ANNOUNCEMENT, NO PAYMENTS HAVE BEEN MADE AT THE RATE OF $2.57 SUBSEQUENT TO MAY 1, 1962, EXCEPT FOR MISSED MEALS DUE TO DUTY ASSIGNMENT AND THAT MEMBERS WHO DID NOT USE THE GOVERNMENT MESS AFTER IT BECAME AVAILABLE ON MAY 1, 1962, HAVE BEEN ALLOWED BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $1.20 PER DAY AS THOUGH THE MEN HAD BEEN AUTHORIZED TO MESS SEPARATELY FOR THEIR OWN CONVENIENCE.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (1958 ED./--- SEE 37 U.S.C. 402 FOR PROVISIONS OF LAW CURRENTLY IN EFFECT--- PROVIDED THAT 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. REGULATIONS AUTHORIZED BY SUBSECTION 301 (D) TO BE PRESCRIBED BY THE PRESIDENT, CONTAINED IN EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, PROVIDED 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 BY THE SECRETARIES THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. DEPARTMENTAL REGULATIONS ISSUED TO IMPLEMENT THE STATUTE AND EXECUTIVE ORDER PROVIDE IN GENERAL THAT THE DETERMINATION OF IMPRACTICABILITY FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT IS THE RESPONSIBILITY OF THE INSTALLATION COMMANDERS, THAT EACH MEMBER'S CASE SHOULD BE CONSIDERED ON THE BASIS OF HIS INDIVIDUAL CIRCUMSTANCES AND THAT THE DETERMINATION THAT UTILIZATION OF A GOVERNMENT MESS WOULD BE IMPRACTICABLE SHOULD BE JUSTIFIED BY A CERTIFYING OFFICER. IT IS CONTEMPLATED THAT THE DETERMINATIONS WILL BE MADE BY THE INSTALLATION COMMANDER ON THE BASIS OF THE EXISTING FACTS AND CIRCUMSTANCES WHICH, UNDER THE LAW AND REGULATIONS, REASONABLY JUSTIFY A CONCLUSION THAT THE FURNISHING OF SUBSISTENCE IN KIND BY THE GOVERNMENT IS IMPRACTICABLE. CERTAIN GENERAL POLICY CRITERIA HAVE BEEN FORMULATED FOR THE GUIDANCE OF INSTALLATION COMMANDERS IN APPROVING THESE ALLOWANCES FOR SUBSISTENCE. SOME OF THESE FACTORS ARE: (1) GOVERNMENT MESSING FACILITIES WHEN AVAILABLE WITHIN THE GEOGRAPHICAL AREA WILL BE EMPLOYED TO THE FULLEST EXTENT COMPATIBLE WITH ECONOMY AND EFFICIENCY; (2) A CASH ALLOWANCE IS AUTHORIZED SOLELY IN THE INTEREST OF ECONOMY TO THE GOVERNMENT WHEN MESSING FACILITIES ARE NOT AVAILABLE, OR UTILIZATION IS IMPRACTICABLE, AND NOT TO PROVIDE ADDITIONAL COMPENSATION TO THE MEMBER CONCERNED; (3) SUBSISTENCE AND QUARTERS ALLOWANCES ARE SEPARATE ALLOWANCES, APPROVAL OF ONE DOES NOT ENTAIL APPROVAL OF BOTH. PARAGRAPH 4 -24B, ARMY REGULATIONS 37-104, SPECIFICALLY PROVIDES THAT ENTITLEMENT TO BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PRESCRIBED WHEN RATIONS IN KIND ARE NOT AVAILABLE IS NOT CONTINGENT ON THE LOCATION OF RESIDENCE WITH RELATION TO THE PLACE OF EMPLOYMENT; THAT THE GOVERNING FACTOR IS THE LOCATION OF THE MEMBER'S PLACE OF EMPLOYMENT WITH RELATION TO THE NEAREST GOVERNMENT MESSING FACILITY; AND THAT MISSING ONE OR TWO MEALS DAILY BECAUSE OF THE NATURE OF ASSIGNED DUTIES DOES NOT FOR THAT REASON AUTHORIZE PAYMENT OF THE FULL BASIC ALLOWANCE FOR SUBSISTENCE OF $2.57 PER DAY. WHILE A CONTEMPORANEOUS ADMINISTRATIVE AUTHORIZATION OR DETERMINATION BY PROPER AUTHORITY USUALLY IS CONSIDERED TO BE THE BEST EVIDENCE OF THE FACTS, IT IS NOT CONCLUSIVE OF THE MATTER WHERE THE FACTS ARE OTHERWISE CLEARLY ESTABLISHED. THUS, WHERE THE DETERMINATION THAT IT WAS IMPRACTICABLE FOR ENLISTED MEN TO USE AN AVAILABLE MESS WAS BASED ON IMPROPER FACTORS, SUCH AS, DEPENDENCY OR MARITAL STATUS, WE HAVE REFUSED TO RECOGNIZE THE DETERMINATION AS CONCLUSIVE. 39 COMP. GEN. 614.

WHILE DISTANCE AND AVAILABILITY OF GOVERNMENT TRANSPORTATION BETWEEN PLACE OF DUTY AND PLACE OF MESS ARE FACTORS TO BE CONSIDERED IN DETERMINING THE AVAILABILITY OF RATIONS IN KIND, WE HAVE FOUND NO PROVISION OF LAW WHICH EVIDENCES A LEGISLATIVE INTENT THAT THE DISTANCE BETWEEN PLACE OF RESIDENCE AND PLACE OF MESS SHOULD BE CONSIDERED IN THIS MATTER. THE GENERAL DETERMINATION OF APRIL 30, 1962, THAT IT IS IMPRACTICABLE FOR ALL ENLISTED PERSONNEL ASSIGNED TO JUSMMAT TO USE THE AVAILABLE GOVERNMENT MESS IS BASED LARGELY ON THE FACT THAT SUCH PERSONNEL MUST LIVE IN PRIVATE HOUSING, SOME OF THEM SOME DISTANCE FROM THE MESS, A FACTOR NOT FOR CONSIDERATION UNDER THE LAW AND REGULATIONS. WHILE PARAGRAPH 2D OF THAT DETERMINATION REFERS TO THE FACT THAT, IF THE GOVERNMENT MESS IS USED "THE DUTY HOURS WOULD NECESSARILY HAVE TO BE SHORTENED TO PERMIT THE NORMAL TIME FOR MESSING, TO INCLUDE TRAVEL TIME" AND THAT THAT WOULD ADVERSELY AFFECT THE MISSION, FACTS IN SUPPORT OF SUCH DETERMINATION WERE NOT FURNISHED. FROM THE INFORMATION THAT WAS SUBMITTED, IT APPEARS UNLIKELY THAT THE DISTANCE OF THE MESS FROM THE POINT OF DUTY OF THE PERSONNEL INVOLVED IS SUCH THAT IT WOULD BE IMPRACTICABLE FOR THEM TO USE THE MESS FOR AT LEAST TWO MEALS A DAY. HENCE, EXCEPT IN CASES WHERE THE USE OF THE AVAILABLE GOVERNMENT MESS WOULD ACTUALLY INTERFERE WITH THE ACCOMPLISHMENT OF THE MISSION OF AN ORGANIZATION BECAUSE OF THE DISTANCE BETWEEN PLACE OF DUTY AND THE MESSING FACILITY OR MEALS ARE MISSED BECAUSE OF SCHEDULED DUTY, THERE IS NO AUTHORITY FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE AT ANY RATE IN EXCESS OF $1.20 PER DAY FOR ENLISTED MEN ON DUTY IN THE ANKARA METROPOLITAN AREA SUBSEQUENT TO THE ESTABLISHMENT OF AN ADEQUATE GOVERNMENT MESS ON MAY 1, 1962. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE AND QUESTIONS (B) AND (C) REQUIRE NO ANSWER. IF, AS STATED BY SERGEANT HERRING, HE WAS REQUIRED TO WORK ON SHIFTS OF 24 HOURS PER DAY WITHOUT RELIEF DURING MEAL HOURS, HIS CLAIM FOR MEALS SO MISSED SHOULD BE PROCESSED FOR PAYMENT IN THE MANNER MENTIONED IN THE THIRD PARAGRAPH OF YOUR LETTER.