B-135448, APR. 28, 1958

B-135448, APR. 28, 1958

TO MASTER SERGEANT MARION S. DYCHES, USAF:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 25, 1958, WITH ENCLOSURES, REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 22, 1958, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE (SEPARATE RATIONS) FOR THE PERIOD JUNE 24, 1955, TO JUNE 13, 1957.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE WAS NO EVIDENCE OF RECORD THAT YOUR COMMANDING OFFICER APPROVED, IN WRITING, YOUR APPLICATION FOR SEPARATE RATIONS FOR THE PERIOD COVERED BY YOUR CLAIM. YOU NOW SUBMIT A CERTIFICATE SIGNED BY LIEUTENANT COLONEL IRL D. WILSON, JR. USAF, WHICH STATES IN PERTINENT PART THAT,"THROUGH AN ADMINISTRATIVE ERROR, SPECIAL ORDERS WERE NEVER PUBLISHED TO CONFIRM VERBAL ORDERS ISSUED 24 JUNE 1955, AUTHORIZING M/SGT MARION S. DYCHES, AF34681789, TO RESIDE OFF THE RESERVATION AND RATION SEPARATELY. HE CONTINUALLY OCCUPIED PUBLIC QUARTERS FROM 24 JUNE 1955 THRU 11 JUL 56. I FURTHER CERTIFY THAT DURING THIS ENTIRE PERIOD HIS MESS PASS WAS STAMPED "SEPARATE RATIONS.' YOU URGE THAT YOUR CLAIM BE RECONSIDERED IN VIEW OF THIS CERTIFICATION.

SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 251/A), AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE OF ONE OF THREE TYPES, TYPE 2 OF WHICH IS "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' EXECUTIVE ORDER NO. 10119, DATED MARCH 27, 1950 (37 U.S.C. 251; AF BUL. 8, 1950), ISSUED UNDER AUTHORITY OF SECTION 301, STATES THAT SUCH PROVISION SHOULD BE CONSIDERED APPLICABLE IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS, OR WHILE SICK IN HOSPITALS, WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH 201104-B, AFM 173-20, PROVIDES HAT:

"/1) AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS AT THE RATES PRESCRIBED IN PARAGRAPH 20101D UNDER CIRCUMSTANCES DESCRIBED BELOW:

"* * * (B) WHEN AUTHORIZED BY THE INSTALLATION, COMMANDER TO SUBSIST THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS.'

PARAGRAPH 20108, AFM 173-20, PROVIDES THAT PAYMENT WILL BE AUTHORIZED FOR

"B. AIRMEN. AFTER DETERMINATION IS MADE * * * OR AUTHORIZATION IS GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A GOVERNMENT MESS * * *. THE DETERMINATION OR AUTHORIZATION OF THE INSTALLATION COMMANDER IS CONCLUSIVE OF THE RIGHTS OF THE AIRMAN * * *.'

THUS IT WILL READILY BE SEEN THAT THE ALLOWANCE IS NOT PAYABLE IN THE ABSENCE OF A SHOWING THAT THE ENLISTED PERSON WAS AUTHORIZED, BY PROPER AUTHORITY PRIOR TO THE PERIOD INVOLVED, TO MESS SEPARATELY. IT IS ADMINISTRATIVELY REPORTED IN YOUR CASE THAT THERE "ARE NO RECORDS WHATSOEVER REFLECTING A REQUEST FOR PERMISSION TO RATION SEPARATELY AND NO SPECIAL ORDERS HAVE EVER BEEN ISSUED GRANTING SUCH PERMISSION FOR THE PERIOD 24 JUNE 1955 TO 17 JUNE 1957.' CONCERNING THE CERTIFICATE OF COLONEL WILSON WHICH YOU SUBMITTED WITH YOUR REQUEST FOR REVIEW, SUCH CERTIFICATE CANNOT BE CONSIDERED AS PROPER ORDERS OR AUTHORIZATION TO MESS SEPARATELY WITHIN THE CONTEMPLATION OF THE STATUTE AND REGULATIONS. BASED ON THE FOREGOING, AND SINCE THERE IS NO EVIDENCE OF RECORD THAT YOU WERE GRANTED AUTHORITY TO MESS SEPARATELY, PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

RESPECTING YOUR ALLEGATION THAT WRITTEN ORDERS WERE NEVER ISSUED IN YOUR CASE BECAUSE OF ADMINISTRATIVE ERROR, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 14 ID. 221, 473, 855; 54 AM.JUR. 608; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES, 148 U.S. 573; HART V. UNITED STATES, 95 U.S. 216; COOKE V. UNITED STATES, 91 U.S. 389, 398.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 22, 1958, DISALLOWING YOUR CLAIM, WAS CORRECT AND IS SUSTAINED.