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B-167706, SEP. 29, 1969

B-167706 Sep 29, 1969
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MILITARY - SUBSISTENCE ALLOWANCE - RATE PROPRIETY DECISION TO ARMY ENLISTED MEMBER SUSTAINING DISALLOWANCE OF CLAIM FOR DIFFERENCE BETWEEN SUBSISTENCE ALLOWANCE RATE AT $2.57 OR $1.17 ON BASIS THAT MEMBER WAS AUTHORIZED TO MESS SEPARATELY. SINCE SUBSISTENCE ALLOWANCE AT RATE OF $1.17 WAS DETERMINED ON BASIS THAT RATIONS IN KIND WERE AVAILABLE AND THAT MEMBER WAS AUTHORIZED TO MESS SEPARATELY THERE IS NO BASIS FOR ADDITIONAL SUBSISTENCE ALLOWANCE. SP-6: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21. DISALLOWED YOUR CLAIM FOR THE REASON YOU HAVE BEEN PAID THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PROVIDED FOR A MEMBER AUTHORIZED TO MESS SEPARATELY PURSUANT TO COMPETENT ORDERS. YOU SAY YOU FEEL YOU ARE OWED THE AMOUNT OF $138.60 SINCE THE OTHER MEMBERS OF YOUR UNIT RECEIVED BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WHILE YOU WERE PAID ONLY $1.17 PER DAY.

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B-167706, SEP. 29, 1969

MILITARY - SUBSISTENCE ALLOWANCE - RATE PROPRIETY DECISION TO ARMY ENLISTED MEMBER SUSTAINING DISALLOWANCE OF CLAIM FOR DIFFERENCE BETWEEN SUBSISTENCE ALLOWANCE RATE AT $2.57 OR $1.17 ON BASIS THAT MEMBER WAS AUTHORIZED TO MESS SEPARATELY. SINCE SUBSISTENCE ALLOWANCE AT RATE OF $1.17 WAS DETERMINED ON BASIS THAT RATIONS IN KIND WERE AVAILABLE AND THAT MEMBER WAS AUTHORIZED TO MESS SEPARATELY THERE IS NO BASIS FOR ADDITIONAL SUBSISTENCE ALLOWANCE.

TO BILLY M. NIMS, SP-6:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1969, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED NOVEMBER 15, 1968, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY AND $1.17 PER DAY DURING THE PERIOD NOVEMBER 1, 1966, TO FEBRUARY 7, 1967.

SPECIAL ORDERS 55 DATED NOVEMBER 1, 1966, HEADQUARTERS, U.S. ARMY SIGNAL RESEARCH UNIT NO. 20, APO NEW YORK 09205, AUTHORIZED YOU TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $1.17 PER DAY AND ATTACHED YOU TO THE U.S. AIR FORCE HOSPITAL, ARMISH-MAAG, APO NY 09205, DURING THE PERIOD NOBEMBER 1, 1966, TO FEBRUARY 7, 1967, FOR THE PURPOSE OF RATIONS ONLY. SPECIAL ORDERS 68 DATED DECEMBER 19, 1966, REASSIGNED YOU FROM YOUR OVERSEAS STATION TO THE 2ND USASAFS (3002) TRRS, PETALUMA, CALIFORNIA, AND DIRECTED YOU TO PROCEED ON FEBRUARY 8, 1967.

THE SETTLEMENT OF NOVEMBER 15, 1968, DISALLOWED YOUR CLAIM FOR THE REASON YOU HAVE BEEN PAID THE BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE PROVIDED FOR A MEMBER AUTHORIZED TO MESS SEPARATELY PURSUANT TO COMPETENT ORDERS. IN YOUR LETTER OF JULY 21, 1969, YOU SAY YOU FEEL YOU ARE OWED THE AMOUNT OF $138.60 SINCE THE OTHER MEMBERS OF YOUR UNIT RECEIVED BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY WHILE YOU WERE PAID ONLY $1.17 PER DAY.

SECTION 402 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT AN ENLISTED MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO A BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS, OF ONE OF THE FOLLOWING TYPES: (1) WHEN RATIONS IN KIND ARE NOT AVAILABLE; (2) WHEN PERMISSION TO MESS SEPARATELY IS GRANTED; AND (3) WHEN ASSIGNED TO DUTY UNDER EMERGENCY CONDITIONS WHERE NO MESSING FACILITIES OF THE UNITED STATES ARE AVAILABLE. PURSUANT TO SUCH AUTHORITY, SECTION 303 OF EXECUTIVE ORDER NO. 11157, ISSUED ON JUNE 22, 1964, PROVIDES, AMONG OTHER THINGS, THAT THE TERM ,WHEN RATIONS IN KIND ARE NOT AVAILABLE" SHALL BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE IT IS DETERMINED, IN ACCORDANCE WITH REGULATIONS PRESCRIBED PURSUANT TO SECTION 302 THEREOF, THAT IS, BY THE SECRETARIES CONCERNED, THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT.

PARAGRAPH 10403 OF ARMY REGULATION 37-104, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PROVIDED IN PERTINENT PART:

"FOR UNIFORMITY IN MAKING DETERMINATIONS, GOVERNMENT MESSES WHEN AVAILABLE WITHIN THE GEOGRAPHICAL AREA WILL BE USED TO THE FULLEST EXTENT COMPATIBLE WITH ECONOMY AND EFFICIENCY. FINAL ACTION ON APPLICATIONS FOR BASIC ALLOWANCE FOR SUBSISTENCE WILL BE TAKEN BY THE COMMANDER OF A POST, DIVISION, ARMY, CORPS, OR SIMILAR COMMANDER FOR TROOPS UNDER HIS COMMAND. EVERY EFFORT WILL BE MADE BY LOCAL COMMANDERS TO AUTHORIZE UNIFORM RATES WHERE SIMILAR CONDITIONS EXIST. WHEN LOCAL COMMANDERS FAIL TO AUTHORIZE A UNIFORM RATE TO ARMY PERSONNEL WHERE SIMILAR DUTY CONDITIONS EXIST, THE SENIOR ARMY OFFICER WITHIN THE AREA WILL RESOLVE THE DIFFERENCES. WHEN THE SENIOR ARMY OFFICER CANNOT RESOLVE THE DIFFERENCES, THE CASE WILL BE FULLY DOCUMENTED AND FORWARDED THROUGH COMMAND CHANNELS TO THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, ATTN: PSD, WASHINGTON, D.C. 20310.' PARAGRAPH 30111 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL EFFECTIVE JANUARY 1, 1967, CONTAINS SUBSTANTIALLY THE SAME PROVISIONS AS PARAGRAPH 10403 OF ARMY REGULATION 37-104.

SPECIAL ORDERS 55 DATED NOVEMBER 1, 1966, AUTHORIZING A BASIC ALLOWANCE FOR SUBSISTENCE TO YOU AT THE RATE OF $1.17 WAS A DETERMINATION OF THE COMMANDER OF YOUR UNIT THAT RATIONS IN KIND WERE AVAILABLE TO YOU THERE AND THAT YOU WERE AUTHORIZED TO MESS SEPARATELY. SINCE IT IS REPORTED THAT THESE ORDERS WERE COMPETENT ORDERS AND APPROVED BY THE PROPER APPROVING AUTHORITY, THERE IS NO BASIS TO ALLOW ANY ADDITIONAL BASIC ALLOWANCE FOR SUBSISTENCE TO YOU.

IF OTHER ENLISTED MEMBERS OF YOUR UNIT WERE PAID BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.57 PER DAY UNDER CIRCUMSTANCES IDENTICAL TO YOURS, SUCH PAYMENTS WERE ERRONEOUS AND WOULD NOT PROVIDE A BASIS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 15, 1968, DISALLOWING YOUR CLAIM IS SUSTAINED.

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