B-160197, DEC. 2, 1966

B-160197, DEC. 2, 1966

TO MR. HAMILTON SEAMAN:

BY LETTER DATED SEPTEMBER 20, 1966, YOU REQUESTED REVIEW OF OUR OFFICE SETTLEMENT OF AUGUST 17, 1966, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF ADDITIONAL PER DIEM AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, EDWARDS AIR FORCE BASE, CALIFORNIA.

BY TRAVEL ORDER NO. TA 3804, DATED AUGUST 26, 1964, AS AMENDED BY TRAVEL ORDER NO. TA 4132, DATED SEPTEMBER 16, 1964, YOU WERE AUTHORIZED TO TRAVEL TO LOWRY AIR FORCE BASE, DENVER, COLORADO, AND RETURN, FOR THE PURPOSE OF ATTENDING A TRAINING COURSE AT THE LOWRY TECHNICAL TRAINING CENTER. YOUR TRAVEL ORDER PROVIDED THAT "PER DIEM OF $16.00 IS AUTHORIZED EXCEPT AS CHANGED BY THE APPLICABLE PROVISIONS OF SECTION 4, CHAPTER 9, AFM 40-10.' MOREOVER, SUCH ORDER SPECIFICALLY PROVIDED THAT "OPEN MESS AVAILABLE TO ALL STUDENTS OCCUPYING V (B) OQ (GS-9 AND ABOVE).'

PURSUANT TO YOUR TRAVEL ORDER, YOU PERFORMED TEMPORARY DUTY AT LOWRY AIR FORCE BASE FROM SEPTEMBER 3, 1964, TO MAY 25, 1965, AND RECEIVED PAYMENT OF PER DIEM AT THE RATE OF $7 FOR THAT PERIOD. HOWEVER, FOR THE PERIOD SEPTEMBER 3, 1964, THROUGH MARCH 19, 1965, YOU CLAIM AN ADDITIONAL $2 PER DAY ON THE BASIS THAT GOVERNMENT MESSING FACILITIES WERE NOT AVAILABLE FOR YOUR USE AT LOWRY AIR FORCE BASE.

THE FILE IN YOUR CASE CONTAINS SEVERAL STATEMENTS OF NONAVAILABILITY OF GOVERNMENT MESS (DD FORM 1351-5) COVERING THE PERIOD SEPTEMBER 3, 1964, TO MAY 25, 1965, WHICH YOU OBTAINED AT LOWRY AIR FORCE BASE. SUCH STATEMENTS INDICATE IN THE REMARKS SECTION THAT BEGINNING WITH MARCH 20, 1965,"OFFICERS CLUB FACILITIES ARE AVAILABLE AT THIS STATION.' IN THE STATEMENTS COVERING THE PERIOD SEPTEMBER 3, 1964, THROUGH MARCH 19, 1965, NO REFERENCE IS MADE TO THE AVAILABILITY OF OFFICERS' CLUB FACILITIES, AND YOU STATE THAT DURING SUCH PERIOD YOU WERE NOT AFFORDED THE USE OF OPEN MESS FACILITIES. THEREFORE, YOU CONTEND THAT YOUR PER DIEM FOR THAT PERIOD SHOULD NOT HAVE BEEN REDUCED BY $2.

PARAGRAPH 22A OF SECTION 4, CHAPTER 9, AFM 40-10S, EFFECTIVE DURING THE PERIOD HERE INVOLVED, PROVIDED:

"A. GOVERNMENT QUARTERS AND SPECIFIC MEAL FACILITIES AVAILABLE. FOR EMPLOYEES ATTENDING TRAINING COURSES WHERE GOVERNMENT QUARTERS AND OFFICERS' CLUB, OFFICERS' OPEN MESS, OR FIELD RATION MESS ARE AVAILABLE WHERE A TRAINING COURSE IS HELD THE PER DIEM RATE PRESCRIBED IN PARAGRAPHS 19D AND 20G WILL BE SUBJECT TO REDUCTIONS AS FOLLOWS:

"/1) IF AN EMPLOYEE DOES NOT USE, TAKES ONLY ONE MEAL A DAY AT EITHER TYPE OF MEAL FACILITY, OR TAKES AT LEAST TWO MEALS A DAY AT AN OFFICERS' CLUB OR OFFICERS' OPEN MESS, THE PER DIEM RATE IS REDUCED $2, BUT THE REDUCED PER DIEM RATE WILL NOT BE LESS THAN $6.

"/2) IF AN OFFICERS' CLUB OR OFFICERS' OPEN MESS IS NOT AVAILABLE AND ONLY A FIELD RATION MESS IS AVAILABLE, OR AN EMPLOYEE TAKES AT LEAST TWO MEALS A DAY AT A FIELD RATION MESS, THE PER DIEM RATE IS REDUCED $4, BUT THE REDUCED PER DIEM RATE WILL NOT BE LESS THAN $3.50.'

PARAGRAPH 19D, REFERRED TO IN THE SECTION QUOTED ABOVE, PRESCRIBED A $9 PER DIEM RATE FOR TEMPORARY DUTY WHEN GOVERNMENT QUARTERS WERE USED IF A CHARGE OF NOT IN EXCESS OF $1 PER DAY WERE MADE FOR SUCH USE.

WE UNDERSTAND THAT A CERTIFICATE OF NONAVAILABILITY OF GOVERNMENT MESS (DD FORM 1351-5) IS TO BE REGARDED ONLY AS EVIDENCE THAT A FIELD RATION MESS WAS NOT AVAILABLE TO THE EMPLOYEE UNLESS A SPECIFIC STATEMENT REGARDING THE AVAILABILITY OF OFFICERS' CLUB OR OFFICERS' OPEN MESS FACILITIES IS INCLUDED IN THE REMARKS SECTION OF SUCH STATEMENT. THEREFORE, WE REQUESTED A REPORT FROM THE COMMANDER, LOWRY TECHNICAL TRAINING CENTER, AS TO WHETHER OR NOT EATING FACILITIES AT THE OFFICERS' OPEN MESS OR OFFICERS' CLUB WERE AVAILABLE FOR YOUR USE DURING THE PERIOD SEPTEMBER 3, 1964, THROUGH MARCH 19, 1965. THAT REPORT, RECEIVED HERE ON NOVEMBER 14, 1966, READS AS FOLLOWS:

"ON NOVEMBER 18, 1964, THE BY-LAWS OF THE LOWRY OFFICERS' OPEN MESS WERE AMENDED TO ALLOW PERSONS OF MR. SEAMAN'S GRADE AND STATUS TO USE THE FACILITIES, INCLUDING PURCHASE OF MEALS, WITH NO REQUIREMENT FOR THE PAYMENT OF FEES OR MEMBERSHIP DUES. PRIOR TO THAT DATE, NO WRITTEN AUTHORITY FOR MR. SEAMAN TO EAT IN THE OPEN MESS EXISTED; HOWEVER, IT WAS THE PRACTICE TO PERMIT ANYONE RESIDING IN THE BOQ TO UTILIZE THE DINING FACILITY.'

SINCE THE EVIDENCE BEFORE US REASONABLY ESTABLISHES THAT DINING FACILITIES IN FACT WERE AVAILABLE FOR YOUR USE AT THE OFFICERS' OPEN MESS DURING THE PERIOD OF YOUR CLAIM, WE MUST CONCLUDE THAT UNDER THE APPLICABLE REGULATIONS, QUOTED ABOVE, YOU ARE NOT ENTITLED TO PAYMENT OF ADDITIONAL PER DIEM.