B-159973, OCT. 19, 1966

B-159973, OCT. 19, 1966

TO SERGEANT ERNEST G. STEPHENS, AF 17351662:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1966, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED AUGUST 3, 1966, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD FROM NOVEMBER 9, 1964, TO JANUARY 18, 1966, WHILE ASSIGNED TO 5TH COMMUNICATIONS SQUADRON, DIVISION (PACAF), APO SAN FRANCISCO 96323.

BY LETTER DATED JANUARY 21, 1966, A REQUEST WAS MADE BY THE ADMINISTRATIVE OFFICER OF YOUR SQUADRON THAT YOU BE PLACED ON SEPARATE RATIONS EFFECTIVE NOVEMBER 9, 1964, IT BEING STATED THAT ACTION APPARENTLY HAD NOT BEEN TAKEN PREVIOUSLY TO PLACE YOU ON SEPARATE RATIONS. IN YOUR CLAIM DATED MAY 9, 1966, YOU STATED THAT YOU UNDERSTOOD THE NECESSARY PAPERS AUTHORIZING SEPARATE RATIONS WERE PREPARED AT THE TIME YOU WERE BEING PROCESSED IN AT YOUR NEW DUTY STATION UPON ARRIVAL NOVEMBER 9, 1964, BUT THAT IT WAS NOT UNTIL JANUARY 1966, THAT YOU DISCOVERED YOU WERE NOT BEING CREDITED WITH SEPARATE RATION ALLOWANCES.

IN TRANSMITTING YOUR CLAIM, YOUR SQUADRON COMMANDER STATED IN LETTER DATED MAY 9, 1966, THAT AT THE TIME OF YOUR ARRIVAL HE HAD INTERVIEWED YOU AND HAD APPROVED SEPARATE RATION STATUS FOR YOU, THAT IT WAS HIS UNDERSTANDING THAT THE NECESSARY PAPERWORK HAD BEEN SUBMITTED AND THAT AN ENTRY HAD BEEN MADE TO THAT EFFECT. HE INDICATED, HOWEVER, THAT HE WAS SUBSEQUENTLY ADVISED THAT THERE WAS NO RECORD OF ANY PAPERS OR DOCUMENTS INVOLVING AUTHORITY FOR SEPARATE RATIONS IN YOUR CASE FOR THE PERIOD CLAIMED. THIS WAS SUBSTANTIATED BY A REPORT FROM HEADQUARTERS KANTO BASE COMMAND DATED MAY 17, 1966, WHICH STATED THERE WERE NO SUBSTANTIATING DOCUMENTS OR STATEMENTS WHICH WOULD SUPPORT YOUR CLAIM.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 3, 1966, FOR THE REASONS STATED. IN YOUR LETTER OF AUGUST 9, 1966, YOU EXPRESS YOUR BELIEF THAT THE DISALLOWANCE WAS MADE WITHOUT FULL KNOWLEDGE OF ALL THE PARTICULARS OF THE CLAIM AND YOU REQUEST IN EFFECT THAT THE CLAIM BE RECONSIDERED.

SECTION 402/B) (2), TITLE 37, U.S.C. SUBJECT TO ADMINISTRATION UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, AUTHORIZES 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.' IMPLEMENTING REGULATIONS CONTAINED IN PARAGRAPH 30406, AIR FORCE MANUAL 177-105, JULY 1, 1964, ISSUED UNDER AUTHORITY CONTAINED IN EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, PROVIDES THAT AF FORM 220 WILL BE USED AS AN APPLICATION, AUTHORIZATION, AND SUPPORTING DOCUMENT TO CREDIT PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WHEN AN AIRMAN IS PERMITTED TO RATION SEPARATELY.

PARAGRAPH 30407, AIR FORCE MANUAL 177-105, PROVIDES THAT AN AIRMAN SHOULD SUBMIT AN APPLICATION ON AF FORM 220 IMMEDIATELY UPON REPORTING TO A NEW STATION OR OTHERWISE BECOMING ELIGIBLE TO RATION SEPARATELY. IT PROVIDES FURTHER THAT SECTION II OF THAT FORM SHOULD BE COMPLETED BY THE BASE OR WING COMMANDER, OR AUTHORIZED REPRESENTATIVE, TO SHOW THE EFFECTIVE DATE THE AIRMAN IS AUTHORIZED TO RATION SEPARATELY. IT PROVIDES FURTHER THAT IF THE DATE WAS BASED ON VERBAL ORDERS, SUCH ORDERS MUST BE CONFIRMED, BUT AUTHORITY TO RATION SEPARATELY CANNOT BE RETROACTIVE.

WHILE IT APPEARS THAT THE QUESTION OF YOUR ENTITLEMENT TO SEPARATE RATIONS WAS DISCUSSED UPON YOUR ARRIVAL AT YOUR DUTY STATION AND THAT YOU WOULD HAVE BEEN AUTHORIZED TO RATION SEPARATELY HAD PROPER REQUEST THEREFORE BEEN MADE AND APPROVED IN THE MANNER PRESCRIBED BY THE REGULATIONS, THERE IS NO EVIDENCE FROM ANY OFFICIAL SOURCE AFFIRMATIVELY SHOWING THAT AT THE TIME OF YOUR ARRIVAL AT YOUR STATION YOU HAD MADE A WRITTEN REQUEST ON AF FORM 220, OR THAT SUCH A REQUEST WAS APPROVED BY THE BASE OR WING COMMANDER, OR 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 NOVEMBER 9, 1964, TO JANUARY 18, 1966. IN THE CIRCUMSTANCES, THE STATEMENT BY YOUR COMMANDING OFFICER IN LETTER DATED MAY 9, 1966, MAY NOT BE ACCEPTED AS PROVIDING A LEGAL BASIS FOR PAYMENT OF THE SUBSISTENCE ALLOWANCE FOR THE PERIOD INVOLVED CONTRARY TO THE REQUIREMENTS OF THE REGULATIONS. ACCORDINGLY, THE SETTLEMENT OF AUGUST 3, 1966, IS SUSTAINED.

CONCERNING YOUR INQUIRY AS TO APPELLATE ACTION THAT YOU MIGHT TAKE IN THE MATTER, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS IS FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. THE COURT OF CLAIMS OF THE UNITED STATES, HOWEVER, HAS INDEPENDENT JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. 28 U.S.C. 2501.