B-158003, FEB. 2, 1966

B-158003, FEB. 2, 1966

TO STAFF SERGEANT CLIFFORD E. MARSDEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1965, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF THE SETTLEMENT OF AUGUST 20, 1965, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE RATIONS ALLOWANCE FOR THE PERIOD APRIL 27, 1963, THROUGH SEPTEMBER 30, 1964.

THE RECORD INDICATES THAT IN FEBRUARY 1963, YOU WERE TRANSFERRED FROM OFFICE OF SPECIAL INVESTIGATIONS, DETACHMENT 6464, BENGUERIR, MOROCCO, TO OFFICE OF SPECIAL INVESTIGATIONS, DETACHMENT 6351, CHATEAUROUX, FRANCE; THAT YOU WERE IN A PERMANENT CHANGE OF STATION TRAVEL STATUS FEBRUARY 19 TO 27, 1963; THAT YOU WERE PAID A TEMPORARY LODGING ALLOWANCE FROM FEBRUARY 28 TO APRIL 26, 1963, AND THAT YOU WERE NOT ISSUED A MEAL CARD. ON DECEMBER 7, 1964, YOU ADDRESSED A COMMUNICATION TO YOUR UNIT COMMANDER REQUESTING PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD FEBRUARY 19, 1963, THROUGH SEPTEMBER 30, 1964. ON THE SAME DAY, MAJOR W. D. CROWLEY, UNIT COMMANDER, REQUESTED DCFAFM TO MAKE THE NECESSARY INQUIRY AND PROVIDE HIM WITH THE RESULTS, THUS INDICATING THAT HE HAD NO FIRST-HAND KNOWLEDGE IN THE MATTER. HOWEVER, ON NOVEMBER 7, 1964, THE SAME OFFICIAL SIGNED AN AF FORM 220 PURPORTING TO CONFIRM VERBAL ORDERS OF FEBRUARY 19, 1963, AUTHORIZING YOU TO RATION SEPARATELY AS OF THE LATTER DATE. AFTER OUR OFFICE REQUESTED A FURTHER REPORT SINCE YOU WERE NOT AT YOUR STATION IN CHATEAUROUX, FRANCE, ON FEBRUARY 19, 1963 (THAT BEING THE DATE ON WHICH YOU DEPARTED BENGUERIR, MOROCCO), MAJOR CROWLEY SIGNED ANOTHER AF FORM 220 ON APRIL 27, 1963, AUTHORIZING YOU TO MESS SEPARATELY BEGINNING ON THAT DATE.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF AUGUST 20, 1965, FOR THE REASON THAT YOU DID NOT, UPON FIRST REPORTING AT YOUR STATION, REQUEST PERMISSION TO RATION SEPARATELY BY EXECUTING SECTION 1 OF AF FORM 220 AS PROVIDED BY PARAGRAPH 20409B, CHANGE 31, APRIL 15, 1963, AIR FORCE MANUAL 177-105 (1960 ED.). YOU HAVE NOW FURNISHED A CERTIFICATE FROM THE CHIEF, ADMINISTRATIVE DIVISION, OFFICE OF SPECIAL INVESTIGATIONS, OSI DISTRICT 63, APO NEW YORK 09686, THAT AT THE TIME YOU WERE ASSIGNED TO OSI DETACHMENT 6351, THE PREPARATION OF MILITARY PAY ORDER AUTHORIZING BASIC ALLOWANCE FOR SUBSISTENCE (BAS) FOR MARRIED ENLISTED PERSONNEL WAS ACCOMPLISHED BY THE ADMINISTRATIVE DIVISION WITHOUT ACTION ON THE PART OF THE AIRMAN CONCERNED BEING NECESSARY. ALSO, YOU HAVE CERTIFIED THAT YOU WERE NOT REQUIRED TO SUBMIT A WRITTEN APPLICATION FOR SEPARATE RATIONS AT THE TIME HERE INVOLVED, BUT WERE ASKED ORALLY IF YOU DESIRED TO RATION SEPARATELY AND THAT YOU REPLIED IN THE AFFIRMATIVE.

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 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 ON APRIL 27, 1963, WERE CONTAINED IN CHAPTER 4, PART TWO, AIR FORCE MANUAL 177-105 (1960 ED.). UNDER PARAGRAPH 20404B (CHANGE 10, SEPTEMBER 1, 1960), 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. SUBSTANTIALLY IDENTICAL PROVISIONS ARE CONTAINED IN PARAGRAPH 10422B (3) (A), AIR FORCE MANUAL 177-105 (1964 ED.), EFFECTIVE JULY 1, 1964.

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 HIS PERMANENT DUTY STATION UNDER PARAGRAPH 20404B (2). IT WAS STATED EXPLICITLY IN THAT PARAGRAPH 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.' SUBSTANTIALLY IDENTICAL PROVISIONS ARE CONTAINED IN PARAGRAPHS 30406 AND 30407 OF AIR FORCE MANUAL 177-105 (1964 ED.), EFFECTIVE JULY 1, 1964.

IN CONNECTION WITH THE MATTER OF THE TIME WITHIN WHICH VERBAL ORDERS SHOULD BE CONFIRMED IT LONG HAS BEEN THE RULE THAT VERBAL ORDERS MUST BE CONFIRMED WITHIN A REASONABLE TIME AFTER SUCH ORDERS ARE ISSUED. THIS RULE IS BASED UPON THE PROBABILITY THAT MANY OF

THE FACTS WITH RESPECT TO SUCH ORDERS ARE MATTERS OF MEMORY RATHER THAN OF WRITTEN RECORD AND IF CONFIRMATORY ORDERS ARE TO BE OF SUCH ACCURACY AS TO PERMIT THE PAYMENT OF PUBLIC FUNDS ON THE BASIS THEREOF, THEY MUST BE ISSUED WHILE THE OFFICER ISSUING SUCH ORDERS HAS A VIVID MEMORY OF SUCH FACTS. IN THE PRESENT CASE, THE CONFIRMATORY ORDERS RELATING TO WHEN YOU ARRIVED AT YOUR STATION AND THE ALLEGED VERBAL AUTHORIZATIONS TO RATION SEPARATELY WERE ISSUED MORE THAN 2 YEARS LATER AND THE RECORD DOES NOT SUPPORT THE CONCLUSION THAT THE UNIT COMMANDER RECALLED ISSUING VERBAL ORDERS UPON YOUR ARRIVAL.

IN THESE CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT DURING THE PERIOD IN QUESTION, YOU WERE AUTHORIZED TO RATION SEPARATELY AS PROVIDED IN THE APPLICABLE REGULATIONS.

WITH RESPECT TO YOUR ALLEGATION THAT UPON REPORTING AT CHATEAUROUX YOU WERE TOLD THAT THE NECESSARY PAPER WORK TO PUT YOU ON SEPARATE RATIONS WOULD BE MADE OUT ADMINISTRATIVELY AND NOTHING WAS REQUIRED ON YOUR BEHALF, THE REGULATIONS SPECIFICALLY PROVIDED AS EXPLAINED ABOVE THAT AN AIRMAN WHO DESIRED TO RATION SEPARATELY WOULD REQUEST AUTHORIZATION BY EXECUTING SECTION I OF AF FORM 220. AFTER IT WAS COMPLETED AND SIGNED BY THE MEMBER IT WAS TO BE PRESENTED TO THE PROPER OFFICIAL FOR APPROVAL. 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.'

THE STATUTORY REGULATIONS CITED ABOVE ARE BINDING ON ALL AIR FORCE OFFICERS AND EMPLOYEES, REGARDLESS OF ACTUAL KNOWLEDGE OF THOSE REGULATIONS, AND 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, ANY RETROACTIVE APPROVAL OF YOUR CLAIM BY AN OFFICIAL OF THE AIR FORCE WAS WITHOUT LEGAL SIGNIFICANCE. IN THE ABSENCE OF A PROPER AUTHORIZATION FOR YOU TO RATION SEPARATELY DURING THE PERIOD IN QUESTION, 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 THE FACTS OF RECORD FORM NO BASIS FOR CONCLUDING THAT SUCH VERBAL ORDERS ACTUALLY WERE ISSUED.