B-109551, OCT 17, 1952

B-109551, OCT 17, 1952

PRECIS-UNAVAILABLE

MASTER SERGEANT JAMES A. COPE, RA 20,738,385:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 16, 1952, WITH ENCLOSURES, AND JULY 28, 1952, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 28, 1952, WHICH DISALLOWED YOUR CLAIM FOR A MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE AT THE RATE OF $2.25 PER DAY FOR THE PERIOD MAY 1 THROUGH NOVEMBER 30, 1947, EXCLUSIVE OF PERIODS YOU WERE PAID A SUBSISTENCE ALLOWANCE IN A TRAVEL STATUS AND LESS PAYMENTS RECEIVED DURING SUCH PERIOD FOR SEPARATE RATIONS. WHILE SERVING AS AN ENLISTED MAN, UNITED STATES ARMY.

YOUR CLAIM WAS BASED ON AUTHORITY CONTAINED IN PARAGRAPH 19, SPECIAL ORDERS NO. 259, DATED DECEMBER 9, 1948, HEADQUARTERS COMMAND AND GENERAL STAFF COLLEGE AND FORT LEAVENWORTH, KANSAS, AS AMENDED BY PARAGRAPH 26, SPECIAL ORDERS NO. 260, DATED DECEMBER 18, 1948, SAME HEADQUARTERS, PURPORTEDLY CONFIRMING VERBAL ORDERS AUTHORIZING A MONETARY ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $2.25 PER DAY TO BE PAID TO YOU FROM MAY 1, 1947 TO NOVEMBER 30, 1947, INCLUSIVE, IT BEING STATED THAT THE SAID VERBAL ORDERS ISSUED UNDER EXIGENCIES WHICH PREVENTED THE ISSUANCE OF COMPETENT WRITTEN ORDERS IN ADVANCE.

SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PROVIDED THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MIGHT PRESCRIBE, ENLISTED MEN NOT FURNISHED RATIONS IN KIND SHOULD BE GRANTED AN ALLOWANCE FOR SUBSISTENCE. SUCH STATUTORY PROVISIONS AND THE REGULATIONS MADE PURSUANT THERETO WERE NOT SELF-EXECUTING AND CONFERRED NO RIGHT UPON AN ENLISTED MAN TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS OR SUBSISTENCE UNLESS THE PAYMENT THEREOF WAS AUTHORIZED CONTEMPORANEOUSLY WITH THE PERIOD INVOLVED IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS. 8 COMP. GEN. 82. SEE ALSO, PARAGRAPH 7, ARMY REGULATIONS NO. 35-4520, DATED DECEMBER 3, 1946. TO BE ENTITLED TO A SUBSISTENCE ALLOWANCE UNDER THE ABOVE-MENTIONED STATUTORY PROVISIONS AND REGULATIONS A DETERMINATION BY THE COMMANDING OFFICER CONCERNED MUST BE MADE THAT A SUBSISTENCE ALLOWANCE IS NECESSARY AND A CONTEMPORANEOUS AUTHORIZATION FOR ITS PAYMENT MUST BE ISSUED.

YOU ADMIT THAT YOU REQUESTED AUTHORITY FOR PAYMENT OF MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE RATHER THAN THE SEPARATE RATIONS WHICH HAD BEEN AUTHORIZED IN YOUR CASE, AND THAT SUCH AUTHORITY WAS NOT GRANTED. THAT FACT WOULD SEEM INCONSISTENT WITH THE ACTUAL ISSUANCE OF THE VERBAL ORDERS UPON WHICH YOU BASE YOUR CLAIM. ALSO, IF SUCH VERBAL ORDERS ACTUALLY ISSUED CONTEMPORANEOULSY, ON OR ABOUT MAY 1, 1947, NO SATISFACTORY EXPLANATION HAS BEEN OFFERED SHOWING WHY IT WAS IMPRACTICABLE TO REDUCE SUCH ORDERS TO WRITING FOR A PERIOD OF APPROXIMATELY ONE AND ONE-HALF YEARS AFTER THE AUTHORITY HAD PURPORTEDLY BEEN GRANTED. UNDER THE CIRCUMSTANCES HERE DISCLOSED, THIS OFFICE WOULD NOT BE WARRANTED IN ALLOWING YOU THE DIFFERENCE BETWEEN MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE AND SEPARATE RATIONS, AS CLAIMED.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 28, 1952, MUST BE AND IS SUSTAINED.

WITH REGARD TO THE INFERENCE IN YOUR LETTER OF APRIL 16, 1952, THAT SERGEANT HUBERT A. SHEPPARD AND MASTER SERGEANT LAWRENCE MUHLENFORTH WERE PAID MONETARY ALLOWANCE IN LIEU OF SUBSISTENCE BY THE FINANCE OFFICER AT FORT LEAVENWORTH, KANSAS, UNDER CIRCUMSTANCES SIMILAR TO THOSE DISCLOSED IN YOUR CLAIM, YOU MAY BE ADVISED THAT ACTION HAS BEEN INITIATED TO EXAMINE THE RECORDS TO ASCERTAIN WHETHER THE CIRCUMSTANCES INVOLVED IN THEIR CASES WERE IDENTICAL TO YOURS AND TO TAKE SUCH ACTION AS THE FINDINGS MAY INDICATE TO BE APPROPRIATE.