B-169677, MAY 22, 1970

B-169677, MAY 22, 1970

RATION COMMUTATION PAYMENTS--AUTHORIZATION--RETROACTIVE SPECIAL ORDER DATED DEC. 20, 1968 PURPORTEDLY CONFIRMING COMMANDING OFFICER'S VERBAL ORDERS OF DEC. 8, 1967 AUTHORIZING MEMBER TO RATION SEPARATELY MAY NOT BE ACCEPTED AS PROVIDING LEGAL BASIS FOR PAYMENT OF SEPARATE RATIONS ALLOWANCE FOR PERIOD CLAIMED SINCE REGULATIONS PROVIDE THAT ENLISTED MEMBER IS ENTITLED TO BASIC DAILY ALLOWANCE FOR SUBSISTENCE "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED" AND IF WRITTEN CONFIRMATORY ORDERS ARE NOT ISSUED PROMPTLY SUCH ORDERS ARE RECOGNIZED ONLY WHEN THERE HAS BEEN FULL ADMINISTRATIVE DISCLOSURE OF ALL FACTS AND CIRCUMSTANCES TO ESTABLISH THAT VERBAL ORDERS WERE ACTUALLY ISSUED.

TO MR. ROBERT M. LONG:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 14, 1970, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED FEBRUARY 6, 1970, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE RATIONS ALLOWANCE FOR THE PERIOD FROM DECEMBER 8, 1967, TO DECEMBER 8, 1968.

WITH YOUR LETTER DATED JANUARY 3, 1969, YOU ENCLOSED A COPY OF SPECIAL ORDERS NO. 152, DATED DECEMBER 20, 1968, ISSUED AT HEADQUARTERS, SCHOOL BRIGADE, USASCS, FORT MONMOUTH, NEW JERSEY, CONFIRMING VERBAL ORDERS OF THE COMMANDING OFFICER OF DECEMBER 8, 1967, AUTHORIZING YOU TO RATION SEPARATELY EFFECTIVE DECEMBER 8, 1967. YOU SAID THAT YOU WERE UNABLE TO RECEIVE PAYMENT AT FORT MONMOUTH BECAUSE YOUR PAY RECORDS HAD BEEN CLOSED AND PAY VOUCHER MADE UP BEFORE YOUR SEPARATION FROM THE ARMY ON DECEMBER 20, 1968. YOU ALSO SAID THAT YOU HAD NEVER BEEN ISSUED A MEAL CARD, USED GOVERNMENT MESSING FACILITIES, OR DRAWN MONIES FOR SEPARATE RATIONS DURING THE PERIOD OF YOUR CLAIM.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT WHERE CONFIRMING ORDERS ARE NOT ISSUED PROMPTLY, SUCH ORDERS GENERALLY WILL BE RECOGNIZED ONLY WHEN THERE IS A FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF VERBAL ORDERS AND THE CIRCUMSTANCES WHICH PREVENTED A PROMPT CONFIRMATION.

IN YOUR LETTER OF MARCH 14, 1970, YOU SAY THAT WHEN YOU REPORTED TO FORT MONMOUTH FOR DUTY YOU APPLIED FOR SEPARATE RATIONS AS YOU INTENDED TO LIVE OFF POST WITH YOUR FAMILY. AFTER THREE MONTHS, DURING WHICH YOU RECEIVED NO BASIC ALLOWANCE FOR SUBSISTENCE, YOU INQUIRED AND WERE TOLD TO REAPPLY WHICH YOU DID. WHEN YOU INQUIRED THREE MONTHS LATER AS TO WHY YOU HAD NOT RECEIVED SEPARATE RATIONS, YOU WERE TOLD IT WOULD BE LOOKED INTO. HOWEVER, NO EXPLANATION OF THE ADMINISTRATIVE DELAY OR ANY OTHER INFORMATION INDICATING THAT VERBAL ORDERS WERE ACTUALLY CURRENTLY ISSUED HAS BEEN FURNISHED.

SECTION 402 (B) (2) OF TITLE 37, U.S. CODE, PROVIDES THAT AN ENLISTED MEMBER IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED." SECTION 302 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, ISSUED UNDER AUTHORITY OF 37 U.S.C. 402 (F) AUTHORIZES THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED TO PRESCRIBE SUCH SUPPLEMENTAL REGULATIONS "NOT INCONSISTENT HEREWITH" AS MAY BE DETERMINED NECESSARY OR DESIRABLE FOR CARRYING OUT THE APPLICABLE PROVISIONS OF LAW RELATING TO SUCH ALLOWANCES. PARAGRAPH 30131A, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES:

"AUTHORIZATION TO MESS SEPARATELY CANNOT COVER RETROACTIVE PERIODS. HOWEVER, THIS DOES NOT PREVENT PAYMENT OF BAS FROM THE TIME OF AN ORAL AUTHORIZATION BY PROPER AUTHORITY IF THE ORAL APPROVAL OF THE MEMBER'S REQUEST IS PROMPTLY CONFIRMED IN WRITING."

UNDER THE CITED STATUTORY PROVISION AND REGULATIONS, THE SEPARATE RATIONS ALLOWANCE IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT AN ENLISTED MEMBER WAS AUTHORIZED BY PROPER AUTHORITY TO MESS SEPARATELY AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED. WRITTEN ORDERS MAY BE ACCEPTED AS ESTABLISHING THAT PERMISSION TO MESS SEPARATELY WAS GRANTED PRIOR TO THE DATE OF THE ORDERS ONLY IF IT IS SHOWN THAT SUCH WRITTEN ORDERS WERE ISSUED IN CONFIRMATION OF SPECIFIC VERBAL ORDERS ISSUED BY PROPER AUTHORITY AT OR PRIOR TO THE BEGINNING OF THE PERIOD INVOLVED AND THEN ONLY IF SUCH CONFIRMATORY ORDERS WERE ISSUED WITHIN A COMPARATIVELY SHORT PERIOD OF TIME AFTER THE ISSUANCE OF VERBAL ORDERS.

IF CONFIRMATORY ORDERS ARE NOT ISSUED PROMPTLY, IT IS OUR PRACTICE TO RECOGNIZE SUCH ORDERS ONLY WHERE THERE HAS BEEN FULL ADMINISTRATIVE DISCLOSURE OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE VERBAL ORDERS. THAT IS TO SAY, THERE MUST BE EVIDENCE OTHER THAN THE BELATED CONFIRMATORY ORDERS THEMSELVES TO ESTABLISH THAT VERBAL ORDERS ACTUALLY WERE ISSUED.

SPECIAL ORDERS NO. 152 CONFIRMING VERBAL ORDERS OF DECEMBER 8, 1967, WAS ISSUED MORE THAN A YEAR AFTER THE PURPORTED ISSUANCE OF VERBAL ORDERS. THERE IS NO ADMINISTRATIVE REPORT OF THE FACTS AND CIRCUMSTANCES SURROUNDING EITHER THE ISSUANCE OF VERBAL ORDERS IN LIEU OF WRITTEN ORDERS OR THE CIRCUMSTANCES WHICH PREVENTED PROMPT CONFIRMATION OF VERBAL ORDERS. VERBAL ORDERS GRANTING PERMISSION TO MESS SEPARATELY CAN BE DELIVERED ONLY TO THE PERSON AFFECTED THEREBY AND SINCE YOU APPEAR TO HAVE BEEN UNAWARE OF SUCH ORDERS IN DECEMBER 1967, THEY APPEAR TO BE FICTITIOUS. IN THE CIRCUMSTANCES DISCLOSED, THE ORDERS ISSUED DECEMBER 20, 1968, MAY NOT BE ACCEPTED AS PROVIDING A LEGAL BASIS FOR PAYMENT OF SEPARATE RATIONS ALLOWANCE FOR THE PERIOD CLAIMED. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 6, 1970, IS SUSTAINED.