B-156063, MAR. 23, 1965

B-156063, MAR. 23, 1965

TO MASTER SERGEANT ERNEST A. GROTTKE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1965, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 1, 1964, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) WHICH YOU BELIEVE TO BE DUE YOU FOR THE PERIOD JUNE 29, 1963, THROUGH MAY 31, 1964, WHILE YOU WERE ASSIGNED TO HEADQUARTERS SQUADRON, 340TH BOMBARDMENT WING, BERGSTROM AIR FORCE BASE, TEXAS.

RECORDS FURNISHED US BY THE DEPARTMENT OF THE AIR FORCE SHOW THAT IN PART I OF AF FORM 220, DATED AUGUST 24, 1964, YOU REQUESTED AUTHORITY TO RATION SEPARATELY FROM YOUR ORGANIZATION EFFECTIVE AS OF 0001, JUNE 29, 1963, GIVING AS A REASON FOR YOUR REQUEST THAT YOU WERE MARRIED AND RESIDED WITH YOUR LEGAL DEPENDENTS AT 1217 HARRISON LANE, AUSTIN, TEXAS. PART II OF THAT FORM CONTAINS THE FOLLOWING STATEMENT:

"I HAVE VERIFIED THE INFORMATION ABOVE AND APPROVE THIS REQUEST. UNLESS SPECIFICALLY TERMINATED PRIOR TO THAT TIME, AUTHORIZATIONS TO RATION SEPARATELY REMAIN IN EFFECT AFTER DISCHARGE AND REENLISTMENT, OR RETIREMENT AND RECALL TO ACTIVE DUTY AT THE SAME STATION THE DAY FOLLOWING DATE OF DISCHARGE OR RETIREMENT, WITH NO CHANGE IN PAY GROUP. THE VOCO DATE OF 0001 29 JUNE 63 IS HEREBY CONFIRMED.'

BELOW SUCH STATEMENT THERE APPEARS THE SIGNATURE OF LIEUTENANT COLONEL THOMAS M. HOLLAND, JR., AS "COMMANDER OR AUTHORIZED REPRESENTATIVE.' SUCH REQUEST WAS ACCOMPANIED BY AFFIDAVITS OF TWO ENLISTED MEMBERS OF THE AIR FORCE WHO STATED, IN EFFECT, THAT ON MANY OCCASIONS FROM JULY 1963 THROUGH MAY 1964 YOU ATE AT THE ALERT FACILITY DINING HALL AT BERGSTROM AIR FORCE BASE AND THAT YOU ALWAYS PAID CASH FOR YOUR MEALS. IT WAS ALSO ACCOMPANIED BY THE AFFIDAVIT OF STAFF SERGEANT MIGUEL BARRIENTOS, CHIEF CLERK OF HEADQUARTERS SQUADRON, 340TH BOMBARDMENT WING, WHO STATED THAT YOU HAD BEEN ASSIGNED TO THAT SQUADRON SINCE JULY 1963 AND THAT DURING SUCH PERIOD OF TIME YOU WERE NEVER ISSUED A "DD FORM 714, MEAL CARD," BY THAT SQUADRON AS IT WAS ASSUMED THAT YOU WERE ON SEPARATE RATIONS. YOUR OWN AFFIDAVIT, DATED SEPTEMBER 1, 1964, YOU STATED THAT YOU ARRIVED AT BERGSTROM AIR FORCE BASE ON JUNE 28, 1963, FROM RAMEY AIR FORCE BASE, PUERTO RICO, WHERE YOU HAD BEEN ON SEPARATE RATIONS DURING ALL OF YOUR TOUR; THAT WHEN YOU ARRIVED AT BERGSTROM AIR FORCE BASE NO ONE EVER MENTIONED THAT YOU HAD TO REINITIATE A SEPARATE RATIONS REQUEST THERE; THAT YOU ASSUMED THAT A PERSON WHO WAS ON SEPARATE RATIONS WOULD STAY ON SEPARATE RATIONS UNTIL HE REQUESTED OTHERWISE; AND THAT FROM THE BEGINNING OF THE PERIOD INVOLVED, JUNE 28, 1963, YOU BELIEVED THAT YOU WERE DRAWING SEPARATE RATIONS. YOU ALSO THERE STATED THAT DURING THAT PERIOD YOU WERE NEVER ISSUED A "DD FORM 714, MEAL CARD," AND THAT YOU NEVER ATE A MEAL AT GOVERNMENT EXPENSE.

YOUR CLAIM AND THE SUPPORTING PAPERS WERE FORWARDED BY HEADQUARTERS, 340TH COMBAT SUPPORT GROUP (STRATEGIC AIR COMMAND), BERGSTROM AIR FORCE BASE, TEXAS, TO SECOND AIR FORCE, BARKSDALE AIR FORCE BASE, LOUISIANA, STATING THAT THERE WAS DOUBT AS TO THE LEGALITY OF PAYMENT FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD INVOLVED BECAUSE OF THE FACT THAT, UNDER THE REGULATIONS, AUTHORIZATION TO RATION SEPARATELY CANNOT BE RETROACTIVE. THE SECOND AIR FORCE FORWARDED THE CLAIM TO HEADQUARTERS, STRATEGIC AIR COMMAND, OFFUTT AIR FORCE BASE, NEBRASKA, WITH THE FOLLOWING STATEMENT:

"SINCE A MEAL CARD WAS NOT PROVIDED TO THE CLAIMANT, AND HE DID NOT SUBSIST IN A GOVERNMENT MESS WITHOUT CHARGE, MSGT GROTTKE IS MORALLY ENTITLED TO BAS FOR THE PERIOD CLAIMED.'

ON SUCH BASIS, IT WAS RECOMMENDED THAT "PAYMENT OF THIS CLAIM BE APPROVED.' THE CLAIM WAS SUBSEQUENTLY FORWARDED BY HEADQUARTERS, STRATEGIC AIR COMMAND, TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, WHENCE IT WAS FORWARDED TO OUR CLAIMS DIVISION AS A CLAIM INVOLVING DOUBTFUL QUESTIONS OF LAW OR FACT, THE ACCOMPANYING REPORT INCLUDING THE FOLLOWING:

"THE QUESTION OF PROPRIETY OF PAYMENT ARISES BECAUSE OF THE UNUSUAL LENGTH OF TIME THAT ELAPSED BEFORE CONFIRMATION OF VOCO AUTHORIZING SEPARATE RATIONS EFFECTIVE 0001, 29 JUNE 63.'

AFTER SUCH STATEMENT THERE WAS ADDED: "WE RECOMMEND PAYMENT OF THIS CLAIM.'

SUBSECTION (A) OF SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (A) (1958 ED.) , AUTHORIZED THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHEN "PERMISSION TO MESS SEPARATELY IS GRANTED.' SUBSECTION (D) OF SECTION 301 PROVIDED: "THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION.' SECTION 2 OF EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950, ISSUED UNDER AUTHORITY OF SAID SECTION 301, PROVIDED GENERALLY THAT THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED, WITH RESPECT TO THE PERSONNEL OF THE UNIFORMED SERVICES IN HIS DEPARTMENT, WAS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS," NOT INCONSISTENT HEREWITH," AS HE MIGHT DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT THE PROVISIONS OF THE ORDER AND OF SECTION 301 OF THE ACT. EFFECTIVE NOVEMBER 1, 1962,37 U.S.C. 251 (A) WAS SUPERSEDED, WITHOUT SUBSTANTIVE CHANGE, BY 37 U.S.C. 402 (B).

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE WHICH WERE IN EFFECT DURING THE PERIOD INVOLVED WERE CONTAINED IN CHAPTER 4, PART TWO, AIR FORCE MANUAL 177-105. UNDER PARAGRAPH 20404B (2) (C) 1 (CHANGE 33, MAY 28, 1963) OF THOSE REGULATIONS, AIRMEN WERE ENTITLED TO RECEIVE THE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS WHEN GRANTED PERMISSION TO MESS SEPARATELY NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS. IT WAS THERE PROVIDED (1) THAT SUCH PERMISSION TO MESS SEPARATELY MIGHT BE GRANTED BY THE COMMANDER OF A MAJOR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AIR FORCE BASE, WING OR OTHER COMPARABLE SEPARATE COMMAND AND (2) THAT SUCH AUTHORITY TO GRANT PERMISSION TO MESS SEPARATELY MIGHT BE DELEGATED TO SQUADRON COMMANDERS PROVIDED STANDARD CRITERIA FOR GRANTING PERMISSION WERE ESTABLISHED THROUGHOUT THE BASE OR COMMAND.

PARAGRAPH 20409 (CHANGE 31, APRIL 15, 1963) 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 THIS PERMANENT DUTY STATION UNDER PARAGRAPH 20404B (2) (C) 1, AND IT WAS STATED EXPLICITLY THAT AIRMEN "SHOULD SUBMIT APPLICATIONS IMMEDIATELY UPON REPORTING TO A NEW STATION OR OTHERWISE BECOMING ELIGIBLE FOR SEPARATE RATIONS.' IT WAS THERE FURTHER STATED THAT SECTION I OF AF FORM 220 WOULD BE COMPLETED 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), AND THAT AFTER THE APPLICATION WAS DATED AND SIGNED BY THE AIRMAN IT WAS TO BE PRESENTED TO THE SQUADRON COMMANDER. IT WAS ALSO STATED THAT SECTION II OF AF FORM 220 WOULD BE COMPLETED BY THE UNIT, BASE OR WING COMMANDER AND THAT THE EFFECTIVE DATE SPECIFIED ON THAT FORM FOR SEPARATE RATIONS CREDIT WAS THE DATE THE AIRMAN WAS AUTHORIZED, INCLUDING VERBAL AUTHORITY, TO RATION SEPARATELY, AND, FURTHER, THAT VERBAL AUTHORITY GIVEN ON THE EFFECTIVE DATE SHOWN WOULD BE CONFIRMED BY THE COMMANDER OR HIS AUTHORIZED REPRESENTATIVE IN SECTION II, AND THAT "RETROACTIVE AUTHORITY TO RATION SEPARATELY IS PROHIBITED.'

ON THE BASIS OF THE EVIDENCE OF RECORD, IT MUST BE CONCLUDED THAT, DURING THE PERIOD IN QUESTION, YOU WERE NOT AUTHORIZED TO RATION SEPARATELY AS PROVIDED IN THE APPLICABLE REGULATIONS. IN OUR DECISION OF JUNE 5, 1958, B-135647, 37 COMP. GEN. 820, WE HELD, IN PERTINENT PART, AS FOLLOWS:

"* * * IT IS WELL ESTABLISHED IN ADMINISTRATIVE LAW THAT VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND MAY NO MORE BE WAIVED THAN PROVISIONS OF THE STATUTES THEMSELVES. REGULATIONS MUST CONTAIN A GUIDE OR STANDARD ALIKE TO ALL INDIVIDUALS SIMILARLY SITUATED, SO THAT ANYONE INTERESTED MAY DETERMINE HIS OWN RIGHTS OR EXEMPTIONS THEREUNDER. THE ADMINISTRATIVE AGENCY MAY NOT EXERCISE DISCRETION TO ENFORCE THEM AGAINST SOME AND TO REFUSE TO ENFORCE THEM AGAINST OTHERS. SEE UNITED STATES V. RIPLEY, 7 PET. 8; UNITED STATES V. DAVIS, 132 U.S. 334; FEDERAL CROP INSURANCE CORPORATION V. MERILL, 332 U.S. 380; SHERIDAN WYOMING COAL CO. V. KRUG, 172 F.2D 282; 31 COMP. GEN. 193, AND DECISIONS CITED THEREIN.'

YOU ARE ADVISED THAT THE STATUTORY REGULATIONS CITED ABOVE ARE BINDING ON ALL AIR FORCE OFFICERS AND EMPLOYEES, REGARDLESS OF ACTUAL KNOWLEDGE OF THOSE REGULATIONS, AND THAT NEITHER THE DEPARTMENT OF THE AIR FORCE NOR OUR OFFICE HAS AUTHORITY TO WAIVE OR TO IGNORE ANY OF THE PROVISIONS THEREOF IN THE CASE OF ANY PARTICULAR INDIVIDUAL. IN VIEW OF SUCH PROVISIONS, IT WAS NOT WITHIN THE BOUNDS OF THE AUTHORITY OF ANY OFFICIAL OF THE AIR FORCE TO APPROVE YOUR CLAIM FOR PAYMENT AND ANY PURPORTED APPROVAL THEREOF BY SUCH AN OFFICIAL WAS WITHOUT LEGAL BASIS. YOUR CASE MAY PRESENT ELEMENTS OF HARDSHIP, BUT SINCE YOU DID NOT REQUEST AND WERE NOT GIVEN PERMISSION TO MESS SEPARATELY AS PROVIDED IN THE APPLICABLE REGULATIONS AND SINCE IT APPEARS THAT RATIONS IN KIND WERE AVAILABLE TO YOU AT BERGSTROM AIR FORCE BASE, YOU ARE NOT ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD INVOLVED.

IN THE CIRCUMSTANCES, HOWEVER, YOU SHOULD NOT HAVE BEEN CHARGED FOR THE MEALS FURNISHED YOU BY THE ALERT FACILITY DINING HALL AT BERGSTROM AIR FORCE BASE DURING SUCH PERIOD. YOUR CLAIM FOR REFUND OF THE AMOUNTS EXPENDED BY YOU FOR THOSE MEALS WILL RECEIVE PROMPT CONSIDERATION IF YOU WILL (1) OBTAIN FROM THE FOOD SERVICE OFFICER OF THAT DINING HALL A CERTIFICATE SHOWING THE NUMBER OF MEALS WHICH YOU ATE THERE DURING THAT PERIOD, TOGETHER WITH THE PERTINENT DATES AND THE AMOUNTS YOU PAID FOR THOSE MEALS, AND (2) SEND THE CERTIFICATE TO GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON, D.C., 20548, REFERRING TO CLAIM NO. Z- 2277420.