B-152472, NOV. 19, 1963

B-152472, NOV. 19, 1963

TO TECHNICAL SERGEANT RICHARD C. ARNOLD, USAF:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19, 1963, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 14, 1963, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT OF BASIC ALLOWANCE FOR SUBSISTENCE COMPUTED AT THE DAILY RATE OF $2.57 AND THAT WHICH YOU RECEIVED AT THE RATE OF $1.10 A DAY (SEPARATE RATIONS) FOR THE PERIOD OCTOBER 10, 1960, TO NOVEMBER 21, 1961, WHILE ASSIGNED TO DUTY AS HOTEL MANAGER, NEW HAVEN COURT HOTEL, CROMER, NORFOLK, ENGLAND.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE RECORD FAILS TO SHOW THAT ANY DETERMINATION WAS MADE BY YOUR COMMANDING OFFICER THAT RATIONS IN KIND WERE NOT AVAILABLE TO YOU OR THAT IT WAS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT AS REQUIRED BY THE APPLICABLE LAW AND REGULATIONS FOR PAYMENT OF THE HIGHER RATE. YOU SAY THAT ALTHOUGH TO YOUR KNOWLEDGE NO SUCH DETERMINATION HAD EVER BEEN MADE BY THE COMMANDING OFFICER, YOU WERE NOT APPRISED OF THE DIFFERENT SUBSISTENCE RATE AUTHORIZED WHEN GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE, AND THAT EVEN HAD YOU BEEN AWARE OF SUCH FACT IT WOULD NOT HAVE BEEN POSSIBLE TO GET THE DETERMINATION FROM THE COMMANDING OFFICER AS HE HAD ALREADY DEPARTED YOUR BASE WHEN YOU RECEIVED YOUR ORDERS. YOUR FURTHER STATE THAT YOUR BASE OF ASSIGNMENT AT APO 22, NEW YORK, NEW YORK, WAS 30 MILES FROM THE NEW HAVEN COURT HOTEL WHERE YOU RESIDED OURING THE DUTY ASSIGNMENT AND THAT NO GOVERNMENT MESS WAS AVAILABLE AT THE HOTEL INASMUCH AS IT WAS AN ANNEX OF THE NON-COMMISSIONED OFFICERS' OPEN MESS, A NON-APPROPRIATED FUND ACTIVITY.

SECTION 402 OF TITLE 37, U.S.C. PROVIDES THAT ENLISTED MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATES THERE PRESCRIBED WHEN (1) RATIONS IN KIND ARE NOT AVAILABLE; (2) PERMISSION TO MESS SEPARATELY IS GRANTED; AND (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO MESSING FACILITIES OF THE UNITED STATES ARE AVAILABLE. SUBSECTION (F) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION. SECTION 3 (B), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, AS AMENDED, ISSUED UNDER THAT STATUTORY AUTHORITY 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 THEREOF, THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. SECTION 3 (C) OF THE EXECUTIVE ORDER PROVIDES THAT THE TERM "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS OR WHILE SICK IN HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

APPLICABLE AIR FORCE REGULATIONS THEN CONTAINED IN PARAGRAPH 20401-D AIR FORCE MANUAL 177-105, PROVIDED THAT AIRMEN ARE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WHEN RATIONS IN KIND ARE NOT AVAILABLE. PARAGRAPH 20404-B (1) (A) OF THE MANUAL PROVIDED THAT AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE WHEN RATIONS IN KIND ARE NOT AVAILABLE, INCLUDING THOSE CIRCUMSTANCES WHERE IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT, EVEN THOUGH AVAILABLE. IT IS FURTHER PROVIDED THAT THE BASE COMMANDER CONCERNED IS RESPONSIBLE FOR DETERMINING THAT RATIONS IN KIND ARE NOT AVAILABLE FOR AN AIRMAN. DEPARTMENT OF DEFENSE INSTRUCTION 1338.2, OCTOBER 21, 1955, PROVIDED THAT GOVERNMENT MESSING FACILITIES, WHEN AVAILABLE WITHIN THE GEOGRAPHICAL AREA, WILL BE EMPLOYED TO THE FULLEST EXTENT COMPATIBLE WITH ECONOMY AND EFFICIENCY.

ALTHOUGH YOU SAY THAT NO GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU FOR THE REASON THAT THE HOTEL WAS A PART OF THE NCO OPEN MESS AND SITUATED 30 MILES FROM YOUR ASSIGNED BASE, IT SHOULD BE NOTED THAT THE DEPARTMENT OF DEFENSE INSTRUCTION OF OCTOBER 21, 1955, DOES NOT CONTEMPLATE THAT THE DETERMINATION OF AVAILABILITY BE MADE FROM CONSIDERATION OF AVAILABILITY OF FACILITIES AT YOUR PARTICULAR DUTY STATION ALONE, BUT REQUIRES THAT CONSIDERATION BE GIVEN TO THE AVAILABILITY OF ALL GOVERNMENT MESSING FACILITIES WITHIN THE GEOGRAPHICAL AREA OF THE PLACE WHERE YOU PERFORMED YOUR ASSIGNED DUTIES. WE HAVE NO REASON TO QUESTION THE CONCEPT ON WHICH THE INSTRUCTION AND SIMILAR REGULATIONS ARE BASED AND THUS HOLD THE VIEW THAT ALTHOUGH RATIONS IN KIND MAY NOT BE AVAILABLE AT THE STATION WHERE THE MEMBER'S DUTY IS BEING PERFORMED, THEY MAY NEVERTHELESS BE CONSIDERED TO BE AVAILABLE AND GENERALLY SHOULD BE PRESUMED TO BE AVAILABLE WITHIN THE MEANING OF SECTION 402 IF THEY ARE AVAILABLE AT A MILITARY INSTALLATION WHICH IS IN THAT AREA.

WHILE WE HAVE NO INFORMATION AS TO THE GOVERNMENT MESSING FACILITIES THEN SITUATED IN OR NEAR CROMER, ENGLAND, THE PLACE WHERE YOU PERFORMED YOUR DUTIES, WE FEEL THAT THE MILITARY AUTHORITIES CONCERNED WERE COGNIZANT OF THE ACTUAL CONDITIONS AND CIRCUMSTANCES INVOLVED, AND IT IS NOT OUR PRACTICE TO QUESTION A DETERMINATION OF AVAILABILITY OF SUCH FACILITIES WHICH IS IMPLIED IN THE GRANTING OF PERMISSION TO MESS SEPARATELY WHERE, AS HERE, IT IS ALLEGED ONLY THAT A GOVERNMENT MESS WAS NOT CONTAINED IN THE BUILDING WHERE THE MEMBER PERFORMED HIS ASSIGNED DUTIES AND WHICH WAS LOCATED A CONSIDERABLE DISTANCE FROM HIS BASE INSTALLATION. ALTHOUGH YOU MAY NOT HAVE BEEN AWARE OF THE CIRCUMSTANCES UNDER WHICH THE HIGHER SUBSISTENCE RATE WAS PAYABLE WHEN YOU WERE AUTHORIZED TO MESS SEPARATELY, SUCH UNFAMILIARITY WITH THE REGULATIONS MAY NOT ALSO BE IMPUTED TO THE BASE COMMANDER WHO HAD THE RESPONSIBILITY FOR DETERMINING, INDEPENDENTLY OF ANY PERSONAL REQUEST BY YOU, WHETHER UNDER THE PERTINENT CONDITIONS RATIONS IN KIND WERE AVAILABLE DURING YOUR DUTY ASSIGNMENT AS WELL AS FOR DECIDING WHETHER YOU WERE TO BE GRANTED SEPARATE RATIONS WHEN MESSING FACILITIES WERE CONSIDERED TO BE AVAILABLE.

ACCORDINGLY, IN THE LIGHT OF THE ABOVE LAW AND REGULATIONS AND THE INFORMATION PRESENTLY OF RECORD, WE MAY NOT PROPERLY CONCLUDE THAT YOU ARE ENTITLED TO RECEIVE THE HIGHER SUBSISTENCE ALLOWANCE INCIDENT TO YOUR DUTY ASSIGNMENT AS HOTEL MANAGER AT CROMER, AND THE SETTLEMENT OF MAY 14, 1963, IS SUSTAINED.