B-154690, SEP. 1, 1964

B-154690, SEP. 1, 1964

TO TECHNICAL SERGEANT ROBERT E. FLORA, USAF:

FURTHER REFERENCE IS MADE TO YOUR FIRST INDORSEMENT DATED JUNE 24, 1964, WITH ENCLOSURES, REQUESTING REVIEW OF OUR SETTLEMENT OF DECEMBER 12, 1963, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FROM DECEMBER 1, 1962, THROUGH MAY 28, 1963, WHILE YOU WERE ASSIGNED TO THE 81ST CONSOLIDATED AIRCRAFT MAINTENANCE SQUADRON, 81ST TACTICAL FIGHTER WING, APO 755. YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT YOU HAD FURNISHED NO EVIDENCE SHOWING THAT YOU REQUESTED PERMISSION TO MESS SEPARATELY OR THAT YOU WERE AUTHORIZED SEPARATE RATIONS FOR THE PERIOD IN QUESTION.

YOU SAY THAT OUR STATEMENT THAT NO EVIDENCE WAS FURNISHED BY YOU SHOWING THAT YOU REQUESTED PERMISSION TO MESS SEPARATELY OR THAT YOU WERE AUTHORIZED SEPARATE RATIONS FOR THE PERIOD FROM DECEMBER 1, 1962, TO MAY 28, 1963, IS NOT ACCURATE. YOU ALSO SAY THAT YOUR ORIGINAL CLAIM CONTAINS A STATEMENT FROM YOUR SQUADRON COMMANDER, LIEUTENANT COLONEL FRANK S. MCGLYNN, JR., THAT YOU WERE GRANTED AUTHORITY TO RESIDE OFF BASE WITH DEPENDENTS ON OCTOBER 4, 1962; THAT NO TIME LIMIT WAS PLACED UPON COLONEL MCGLYNN'S AUTHORIZATION; THAT IT IS ASSUMED THAT IT WAS INTENDED TO RUN CONTINUOUSLY FROM OCTOBER 4, 1962; AND THAT YOU ARE ADVISED THAT THE LEGAL EFFECT OF SUCH AUTHORIZATION IS THAT IT CONTINUES UNTIL IT IS REVOKED. YOU SAY FURTHER THAT SEVERAL AIRMEN AT YOUR STATION SUBMITTED CLAIMS AFTER YOUR CLAIM WAS SUBMITTED AND THAT SUCH CLAIMS WERE SUBSEQUENTLY APPROVED, AND YOU REQUEST THAT, AS A MATTER OF EQUITY, YOUR CLAIM BE APPROVED AS WELL. YOU ENCLOSED A COPY OF YOUR ORIGINAL CLAIM DATED JUNE 11, 1963, AND A COPY OF THE FIRST INDORSEMENT THEREON, ALSO DATED JUNE 11, 1963, SIGNED BY LIEUTENANT COLONEL FRANK S. MCGLYNN, R., IN WHICH IT IS STATED: "SERGEANT FLORA WAS GRANTED AUTHORITY TO RESIDE OFF BASE WITH DEPENDENTS IN TEMPORARY LODGING ON 4 OCTOBER 1962.'

SECTION 402, TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE TO MEMBERS OF THE UNIFORMED SERVICES "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' THE APPLICABLE AIR FORCE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED WERE CONTAINED IN PART TWO, CHAPTER 4, AIR FORCE MANUAL 177-105. UNDER PARAGRAPH 20404B (1) (B), CHANGE 10, SEPTEMBER 1, 1961, OF SUCH REGULATIONS, AIRMEN WERE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN AUTHORIZED TO RATION SEPARATELY NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS AND IT WAS THERE PROVIDED THAT SUCH AUTHORIZATION TO RATION SEPARATELY MIGHT BE CERTIFIED BY THE COMMANDER OF A MAJOR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING OR OTHER COMPARABLE COMMAND. WHILE IT WAS ALSO THERE PROVIDED THAT AUTHORITY TO APPROVE REQUESTS TO RATION SEPARATELY MIGHT BE DELEGATED TO SQUADRON COMMANDERS PROVIDED STANDARD CRITERIA FOR APPROVAL OF REQUESTS WERE ESTABLISHED THROUGHOUT THE BASE OR COMMAND, THERE IS NO EVIDENCE SHOWING THAT SUCH AUTHORITY WAS SO DELEGATED AT HEADQUARTERS, 81ST TACTICAL FIGHTER WING, APO 755, PRIOR TO APRIL 9, 1963.

PARAGRAPH 20409, CHANGE 10, SEPTEMBER 1, 1961, PROVIDED THAT "AF FORM 220, REQUEST, AUTHORIZATION AND PAY ORDER, BAS--- SEPARATE RATIONS" WOULD BE USED AS APPLICATION, AUTHORIZATION, AND SUBSTANTIATING DOCUMENT TO CREDIT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WHEN AN AIRMAN WAS PERMITTED TO RATION SEPARATELY AT HIS PERMANENT DUTY STATION UNDER PARAGRAPH 20404B (1) (B). IT WAS STATED EXPLICITLY IN THAT PARAGRAPH THAT SECTION I OF AF FORM 220 WOULD BE COMPLETED BY AN AIRMAN REQUESTING PERMISSION TO RATION SEPARATELY, TO SHOW THE AIRMAN'S FULL NAME, GRADE, SERVICE NUMBER, PERMANENT ORGANIZATION AND DUTY STATION, MARITAL STATUS, EFFECTIVE DATE DESIRED, REASON FOR REQUEST (IF OTHER THAN A CURRENT EFFECTIVE DATE WAS DESIRED THE REASON FOR DELAY IN SUBMISSION WAS TO BE SHOWN); THAT AFTER THE APPLICATION WAS DATED AND SIGNED BY THE AIRMAN IT WAS TO BE PRESENTED TO THE SQUADRON COMMANDER; AND THAT SECTION II OF AF FORM 220 WOULD BE COMPLETED BY THE UNIT, BASE OR WING COMMANDER. SECTION 20409B (2) (C) READ AS FOLLOWS:

"THE EFFECTIVE DATE SPECIFIED ON AF FORM 220 FOR SEPARATE RATIONS CREDIT IS THE DATE THE AIRMAN IS AUTHORIZED, INCLUDING VERBAL AUTHORITY, TO RATION SEPARATELY OR TO RESIDE WITH DEPENDENTS, AND IN FACT DOES. VERBAL AUTHORITY GIVEN ON THE EFFECTIVE DATE SHOWN WILL BE CONFIRMED BY THE COMMANDER OR HIS AUTHORIZED REPRESENTATIVE INSECTION II OF AF FORM 220. RETROACTIVE AUTHORITY TO RATION SEPARATELY IS PROHIBITED.

THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE AFFIRMATIVELY SHOWING THAT YOU MADE A WRITTEN REQUEST ON AF FORM 220 TO RATION SEPARATELY ON DECEMBER 1, 1962, OR THAT SUCH A REQUEST WAS APPROVED BY THE BASE COMMANDER OR HIS AUTHORIZED REPRESENTATIVE AS PROVIDED IN THE CITED REGULATIONS. FURTHERMORE, THERE IS NO SHOWING THAT ANY WRITTEN ORDERS HAVE EVER BEEN ISSUED PURPORTING TO CONFIRM VERBAL ORDERS GRANTING PERMISSION TO YOU TO RATION SEPARATELY DURING THE PERIOD FROM DECEMBER 1, 1962, THROUGH MAY 28, 1963. THERE IS, THEREFORE, NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

YOU SAY THAT UPON YOUR ARRIVAL AT APO 755 ON OCTOBER 4, 1962, YOU OCCUPIED TEMPORARY LODGING FOR A PERIOD OF 58 DAYS DUE TO NON AVAILABILITY OF PERMANENT QUARTERS AND THAT YOU WERE GRANTED PERMISSION TO RESIDE OFF BASE WITH YOUR DEPENDENTS DURING SUCH PERIOD OF OCCUPANCY OF TEMPORARY LODGING AND WERE PAID THE TEMPORARY LODGING ALLOWANCE THROUGH NOVEMBER 30, 1962. YOU URGE THAT SUCH AUTHORIZATION TO RESIDE OFF BASE WITH DEPENDENTS" SHOULD BE CONSIDERED AS CONTINUING IN EFFECT AFTER NOVEMBER 30, 1962, FOR THE PURPOSE OF ENTITLING YOU TO PAYMENT FOR SEPARATE RATIONS.

SECTION 405, TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF STATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, AND THE APPLICABLE REGULATIONS IN EFFECT AT THE TIME UNDER CONSIDERATION WERE CONTAINED IN PART TWO, CHAPTER 16, AIR FORCE MANUAL 177 -105, AND IN CHAPTER 4, PART G, JOINT TRAVEL REGULATIONS. UNDER SUCH REGULATIONS, THE TEMPORARY LODGING ALLOWANCE WAS AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF QUARTERS OR ARRANGEMENTS FOR OTHER PERMANENT QUARTERS WHEN GOVERNMENT QUARTERS WERE NOT AVAILABLE. SUCH ALLOWANCE WAS PAYABLE UNDER THOSE REGULATIONS FOR A PERIOD NOT IN EXCESS OF 60 DAYS WHEN GOVERNMENT QUARTERS WERE NOT FURNISHED THE MEMBER, HIS DEPENDENTS, OR THE MEMBER FOR HIMSELF AND HIS DEPENDENTS, AND TEMPORARY LODGINGS (HOTEL OR HOTEL LIKE ACCOMMODATIONS) WERE ACTUALLY OCCUPIED AT PERSONAL EXPENSE. THE REGULATIONS PROVIDED THAT DD FORM 114 (MILITARY PAY ORDER) SHOULD BE USED TO SUBSTANTIATE BEGINNING, CHANGE, AND END OF MILITARY PAY RECORD CREDIT ENTRIES. AS TO THE PERIOD IMMEDIATELY FOLLOWING THE 60-DAY PERIOD FOR WHICH THE TEMPORARY LODGING ALLOWANCE MAY BE AUTHORIZED, WE FIND NOTHING IN THE REGULATIONS RELATING TO THAT ALLOWANCE WHICH COULD BE CONSIDERED AS AN AUTHORIZATION FOR THE MEMBER "TO RATION SEPARATELY OR TO RESIDE WITH DEPENDENTS" WITHIN THE INTENT AND MEANING OF SECTION 20409B (2) (C) OF AIR FORCE MANUAL 177-105 QUOTED ABOVE.

WITH REGARD TO YOUR STATEMENT THAT SEVERAL AIRMEN AT YOUR STATION SUBMITTED CLAIMS AFTER YOUR CLAIM WAS SUBMITTED AND THAT SUCH CLAIMS WERE SUBSEQUENTLY APPROVED, IT MAY BE STATED THAT IF SUCH PAYMENTS WERE MADE IN CIRCUMSTANCES IDENTICAL WITH YOURS, THEY WERE ERRONEOUS AND COULD AFFORD NO BASIS FOR A LIKE PAYMENT TO YOU. FURTHERMORE, IT SHOULD BE POINTED OUT THAT OUR OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE UNITED STATES SOLELY ON MORAL OR EQUITABLE GROUNDS. SO FAR AS CLAIMS OF MEMBERS OF THE ARMED SERVICES ARE CONCERNED, THE JURISDICTION OF OUR OFFICE IS SUCH THAT WE MAY APPROVE FOR ALLOWANCE ONLY THOSE CLAIMS WHICH ARE FOR PAYMENT IN ACCORDANCE WITH THE APPLICABLE LAW AND REGULATIONS. IN THE ABSENCE OF SUCH CONDITIONS, AS HERE, OUR OFFICE IS WITHOUT DISCRETION IN THE MATTER AND MUST DISALLOW THE CLAIM.