B-152728, DEC. 5, 1963

B-152728, DEC. 5, 1963

TO STAFF SERGEANT ALBERT BAKER, RET.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1963, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENTS DATED JUNE 19, 1961, AND SEPTEMBER 16, 1963, WHICH DISALLOWED YOUR CLAIMS FOR BASIC ALLOWANCE FOR SUBSISTENCE AND REIMBURSEMENT FOR MEALS PURCHASED AT THE AIR FORCE MESSING FACILITIES, AMARILLO AIR FORCE BASE, TEXAS, DURING THE PERIOD JUNE 28, 1959, TO SEPTEMBER 12, 1960, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE.

THE SETTLEMENT DATED JUNE 19, 1961, DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR THE REASON THERE WAS NO EVIDENCE THAT YOU HAD MADE APPLICATION TO MESS SEPARATELY AND THAT YOU HAD RECEIVED APPROVAL IN WRITING TO DO SO IN ADVANCE OF THE PERIOD OF YOUR CLAIM. THE SETTLEMENT DATED SEPTEMBER 16, 1963, DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR MEALS PURCHASED AT AMARILLO AIR FORCE BASE FOR THE REASON THAT THERE WAS NO EVIDENCE FROM OFFICIAL SOURCES SHOWING THE NUMBER OF MEALS AND AMOUNT COLLECTED FOR EACH MEAL, AND ALSO SHOWING THAT SUCH MEALS SHOULD HAVE BEEN FURNISHED YOU WITHOUT CHARGE.

SECTION 402 OF TITLE 37 OF THE U.S.C. AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED MEMBERS UNDER PRESCRIBED CONDITIONS INCLUDING INSTANCES "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SUBSECTION 402 (F) PROVIDES THAT THE PRESIDENT OF THE UNITED STATES MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION. SUBSECTION 3 (C) OF EXECUTIVE ORDER NO. 10119 DATED MARCH 27, 1950, ISSUED UNDER THAT AUTHORITY 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 WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.

THE PERTINENT AIR FORCE REGULATIONS FOR THE PERIOD PRIOR TO JULY 1, 1960, ISSUED UNDER SECTION 2 OF THE EXECUTIVE ORDER, WERE CONTAINED IN AIR FORCE MANUAL NO. 173-20. PARAGRAPH 20104 OF THAT MANUAL PROVIDED THAT AIRMEN WERE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE INSTALLATION COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20108 PROVIDED THAT PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE AUTHORIZED FOR AIRMEN AFTER AUTHORIZATION WAS GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS AND THAT THE AUTHORIZATION OF THE INSTALLATION COMMANDER WAS CONCLUSIVE OF THE RIGHTS OF AIRMEN. THE REGULATIONS FOR THE PERIOD BEGINNING JULY 1, 1960, ARE CONTAINED IN AIR FORCE MANUAL NO. 177-105. PARAGRAPH 20404 OF THAT MANUAL PROVIDES THAT AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED BY THE BASE COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. PARAGRAPH 20408 PROVIDES THAT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WILL BE STARTED AND STOPPED ON THE BASIS OF MILITARY PAY ORDERS PREPARED BY CERTIFYING OFFICERS IN QUADRUPLICATE. THAT PARAGRAPH FURTHER PROVIDES THAT AFTER AUTHORIZATION IS GRANTED FOR AN AIRMAN TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS, A MILITARY PAY ORDER AUTHORIZING PAYMENT WILL BE ISSUED; THAT THE AUTHORIZATION OF THE BASE COMMANDER IS CONCLUSIVE OF THE RIGHTS OF AN AIRMAN, SUBJECT TO REVIEW OF PAYMENTS INVOLVED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT, AND THE COURTS; AND THAT THE MILITARY PAY ORDER WILL STATE THE DATE OF COMMENCEMENT AND THE TYPE OF ALLOWANCE TO WHICH THE AIRMAN IS ENTITLED, AND WILL BE SUBSTANTIATED BY COPIES OF THE BASE AUTHORIZATION TO RATION SEPARATELY.

IT IS APPARENT THAT UNDER THE CITED STATUTORY PROVISIONS AND REGULATIONS THE ALLOWANCE IN QUESTION IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED PERSON, AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, WAS AUTHORIZED BY THE PROPER AUTHORITY TO MESS SEPARATELY. WE HAVE HELD, GENERALLY, THAT RETROACTIVE WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED, BUT ONLY IF IT IS SHOWN THAT SUCH WRITTEN ORDERS WERE ISSUED TO CONFIRMATION OF SPECIFIC VERBAL ORDERS ISSUED BY PROPER AUTHORITY AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED, AND ONLY IF THEY WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF THE VERBAL ORDERS. IT IS OUR PRACTICE TO RECOGNIZE SUCH RETROACTIVE WRITTEN ORDERS ONLY WHERE THERE HAS BEEN A FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF THE VERBAL ORDERS; IN OTHER WORDS, THERE MUST BE EVIDENCE OTHER THAN BELATED CONFIRMATORY ORDERS THEMSELVES TO ESTABLISH THAT VERBAL ORDERS WERE ACTUALLY ISSUED.

IN YOUR CASE, ORDERS DATED SEPTEMBER 13, 1960, WERE ISSUED PURPORTING TO CONFIRM VERBAL ORDERS OF YOUR COMMANDING OFFICER AUTHORIZING YOU TORATION SEPARATELY AND RESIDE OFF BASE EFFECTIVE JUNE 28, 1959, BUT THE AIR FORCE IN LETTER DATED JUNE 7, 1963, ADVISED THE HONORABLE HENRY B. GONZALEZ, HOUSE OF REPRESENTATIVES, THAT THE ORDERS WERE IMMEDIATELY ISSUED IN SEPTEMBER 1960 WHEN YOU LEARNED YOU HAD NOT BEEN AUTHORIZED TO RATION SEPARATELY. FOR THIS REASON AND SINCE THERE IS NO EVIDENCE OF RECORD THAT YOU WERE GIVEN PERMISSION ON OR PRIOR TO JUNE 28, 1959, TO RATION SEPARATELY, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE. ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1961, DISALLOWING THAT CLAIM WAS CORRECT AND IS SUSTAINED.

IN THE ABSENCE OF EVIDENCE THAT YOU WERE AUTHORIZED TO RATION SEPARATELY, YOU SHOULD NOT HAVE BEEN CHARGED FOR YOUR MEALS AT THE MESSING FACILITIES AT AMARILLO AIR FORCE BASE. AS YOU WERE ADVISED IN OUR SETTLEMENT DATED SEPTEMBER 16, 1963, THE AIR FORCE RECORDS SHOWING CASH COLLECTIONS FOR GOVERNMENT MEALS AT AMARILLO AIR FORCE BASE HAVE BEEN DESTROYED, AND THE PRESENT RECORD DOES NOT CONTAIN ANY EVIDENCE OTHER THAN YOUR STATEMENT THAT YOU WERE REQUIRED TO PAY $309.09 FOR YOUR MEALS THERE. HENCE, ON THE BASIS OF THE PRESENT RECORD THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT. HOWEVER, IF YOU CAN FURNISH ANY EVIDENCE, INCLUDING BUT NOT LIMITED TO AFFIDAVITS FROM PERSONS WHO KNEW THE CIRCUMSTANCES UNDER WHICH YOU OBTAINED YOUR MEALS AT AMARILLO AIR FORCE BASE AND INFORMATION AS TO HOW YOU DETERMINED THAT YOU PAID FOR APPROXIMATELY TWO-THIRDS (826 OF 1239) OF YOUR MEALS DURING THE PERIOD OF YOUR CLAIM, FURTHER CONSIDERATION WILL BE GIVEN THE MATTER. IF YOUR STATEMENT AS TO THE NUMBER OF MEALS EATEN IN A GOVERNMENT MESS AND THE AMOUNTS PAID FOR EACH MEAL IS BASED ON A CONTEMPORANEOUS RECORD WHICH YOU KEPT OF THE MEALS PURCHASED, SUCH RECORD OR AN AUTHENTICATED COPY OF IT SHOULD BE SUBMITTED IN SUPPORT OF YOUR CLAIM.

REGARDING YOUR REQUEST THAT ALL OF YOUR CLAIM DOCUMENTS BE RETURNED TO YOU, YOU ARE ADVISED THAT IT WILL BE NECESSARY TO RETAIN THEM HERE SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENTS DISALLOWING YOUR CLAIMS WERE BASED, WHICH ACTIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. I GAO MANUAL 3040.10; 8 ID. 2010.10.