B-155768, FEB. 2, 1965

B-155768, FEB. 2, 1965

TO MASTER SERGEANT GEORGE W. SAXTON, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 30, 1964, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED JULY 21, 1964, OF OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE IN THE AMOUNT OF $1,310.24, BELIEVED TO BE DUE YOU FOR THE PERIOD FROM NOVEMBER 25, 1960, THROUGH APRIL 5, 1964, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE.

YOU SAID IN A LETTER DATED APRIL 6, 1964, ADDRESSED TO THE ACCOUNTING AND FINANCE OFFICER, ENT AIR FORCE BASE, THAT TO THE BEST OF YOUR KNOWLEDGE WHEN YOU REPORTED AT THAT STATION ON NOVEMBER 22, 1960, YOU WERE PLACED ON SEPARATE RATIONS; THAT AS FAR AS YOU ARE CONCERNED ALL PAPERS AND DOCUMENTS THAT YOU WERE SUPPOSED TO HAVE SIGNED WERE COMPLETED ON NOVEMBER 25, 1960, AND YOU WERE LED TO BELIEVE THAT YOU WERE THEN ON SEPARATE RATIONS. YOU AVER THAT YOU "HAD NO RECOURSE TO CHECK FINANCE TO SEE IF THAT WAS CORRECT" AND THAT THE FIRST TIME YOU NOTICED YOU WERE NOT ON SEPARATE RATIONS WAS WHEN, EARLY IN 1964, YOU WERE PLACED ON THREE MONTHS' TEMPORARY DUTY. THE RECORD SHOWS THAT YOU HAVE BEEN CREDITED WITH SEPARATE RATIONS FROM APRIL 6, 1964.

THE VOUCHER COVERING PAYMENT OF THE AMOUNT CLAIMED, FORWARDED HERE ON JUNE 26, 1964, FOR DIRECT SETTLEMENT AS A DOUBTFUL CLAIM, IS SUPPORTED BY AF FORM 220, DATED APRIL 6, 1964, ON WHICH YOUR PRESENT COMMANDER, MAJOR PAUL J. BUCKLEY, APPROVED YOUR REQUEST FOR AUTHORITY TO RATION SEPARATELY ON NOVEMBER 25, 1960, AND PURPORTED TO CONFIRM VERBAL ORDERS OF NOVEMBER 25, 1960.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT WHILE VERBAL ORDERS WILL BE RECOGNIZED AS COMPETENT ORDERS WHEN THEY ARE PROPERLY CONFIRMED IN WRITING WITHIN A COMPARATIVELY SHORT PERIOD OF TIME, CONFIRMATORY ORDERS IN YOUR CASE ISSUED MORE THAN THREE YEARS AFTER THE PURPORTED VERBAL ORDERS MAY NOT BE CONSIDERED SUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS.

SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 68L, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (A) (1958 ED.) IN EFFECT AT THE TIME YOU ALLEGE YOU FIRST BECAME ENTITLED TO SEPARATE RATIONS (NOW 37 U.S.C. 402) AUTHORIZED THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 2 OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SAID SECTION 301, PROVIDES GENERALLY THAT THE SECRETARIES CONCERNED ARE AUTHORIZED TO PRESCRIBE SUPPLEMENTARY REGULATIONS FOR CARRYING OUT THE PURPOSE OF THE ORDER AND OF SECTION 301 OF THE ACT.

UNDER PARAGRAPH 20404B (1) (B), CHANGE 4, OCTOBER 20, 1960, OF AFM 177- 105, AIRMEN WERE 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 20404B (3) PROVIDED THAT FINAL ACTION ON APPLICATIONS FOR BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE TAKEN BY THE COMMANDER OF A MAJOR AIR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING, OR OTHER COMPARABLE SEPARATE COMMAND. PARAGRAPH 20408 PROVIDED THAT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE STARTED AND STOPPED ON THE BASIS OF MILITARY PAY ORDERS PREPARED BY CERTIFYING OFFICERS IN QUADRUPLICATE. PARAGRAPH 40719B (3) (A), CHANGE L, JULY 1, 1960, PROVIDED THAT AS SOON AS POSSIBLE AFTER PREPARATION OF THE MILITARY PAY ORDERS PREPARED IN QUADRUPLICATE THE ORIGINAL AND TWO COPIES WOULD BE DELIVERED TO THE ACCOUNTING AND FINANCE OFFICER AND THE FOURTH COPY WOULD BE RETAINED BY THE CERTIFYING OFFICER.

BY LETTER DATED APRIL 6, 1964, YOUR PRESENT COMMANDER, MAJOR PAUL J. BUCKLEY, STATED "TO THE BEST OF MY KNOWLEDGE, ALL SOURCES HAVE BEEN CHECKED, AND RECORDS ARE NON EXISTENT. IT IS MY OPINION THAT TSGT SAXTON WAS NEVER PLACED ON SEPARATE RATIONS DUE TO ADMINISTRATIVE ERROR, AND THAT HE WAS IN NO WAY AT FAULT.' ON THAT BASIS HE APPROVED YOUR REQUEST FOR AUTHORITY TO RATION SEPARATELY RETROACTIVE TO NOVEMBER 25, 1960, AND PURPORTED TO CONFIRM VERBAL ORDERS OF THE THEN COMMANDING OFFICER.

WHILE IT MAY BE THAT YOU MADE APPLICATION TO RATION SEPARATELY ON OR ABOUT NOVEMBER 25, 1960, THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE SHOWING THAT ANY SUCH REQUEST WAS APPROVED BY PROPER AUTHORITY AT THAT TIME. THE STATEMENT OF MAJOR BUCKLEY SUPPORTS THIS VIEW. IN THE ABSENCE OF A PROPER AUTHORIZATION TO MESS SEPARATELY, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. NO EFFECT MAY BE GIVEN THE ATTEMPT TO SUPPLY SUCH AUTHORIZATION BY MEANS OF CONFIRMING VERBAL ORDERS SINCE THERE IS NO PROOF THAT SUCH ORDERS ACTUALLY WERE ISSUED. MAJOR BUCKLEY COULD NOT CONFIRM NONEXISTENT VERBAL ORDERS. FURTHERMORE, IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES AND WE CANNOT APPROVE THE PAYMENT OF OTHERWISE IMPROPER CLAIMS ON THE BASIS THAT SUCH OFFICERS ACTED IN A NEGLIGENT MANNER IN PERFORMING THEIR DUTIES.