B-152471, OCT. 31, 1963

B-152471, OCT. 31, 1963

TO HARRY R. DUNN, ABHC, USN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1963, REQUESTING RECONSIDERATION OF SETTLEMENT DATED AUGUST 16, 1963, WHICH DISALLOWED YOUR CLAIM FOR A SUBSISTENCE ALLOWANCE FOR 43 DINNERS AND 43 SUPPERS PROCURED AT PERSONAL EXPENSE WHILE PERFORMING SHORE PATROL DUTY AT NORFOLK, VIRGINIA, DURING THE PERIOD JANUARY 22 TO APRIL 30, 1963, AS A MEMBER OF THE UNITED STATES NAVY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR SHORE PATROL DUTY ORDERS OF JANUARY 22, 1963, NOT ONLY FAILED TO SHOW THAT YOU WERE ENTITLED TO AN ALLOWANCE FOR MEALS BUT SPECIFICALLY PROVIDED THAT THE ORDERS WERE ISSUED FOR HUMANITARIAN REASONS AND THAT THERE WOULD BE NO COST TO THE GOVERNMENT IN CONNECTION WITH SUCH ORDERS.

YOU SAY THAT WHILE YOU DID REQUEST TO BE ASSIGNED TO SHORE PATROL DUTY, YOU DID NOT ASK FOR AN ASSIGNMENT THAT WOULD REQUIRE YOU TO PROCURE YOUR OWN MEALS. YOU FURTHER POINT OUT THAT THE SHORE PATROL OFFICER HAS STATED THAT YOU WERE REQUIRED TO PROCURE 43 DINNERS AND 43 SUPPERS DUE TO BEING ON WATCH AT THE TIME AND THAT PARAGRAPH 3 OF THE PRINTED FORM (FLTGEN 1320/1 (REV. 2/62) USED IN THE ISSUANCE OF YOUR ORDERS OF JANUARY 22, 1963, PROVIDED "YOU WILL BE ENTITLED TO A CASH ALLOWANCE FOR EACH MEAL YOU ARE REQUIRED TO PROCURE WHILE ENGAGED IN THE PERFORMANCE OF THIS TY.' ALTHOUGH YOU DO NOT STATE THE SPECIFIC AMOUNT CLAIMED, ARTICLE C-7905 (3), BUREAU OF NAVAL PERSONNEL MANUAL, AUTHORIZES REIMBURSEMENT TO MEMBERS PERFORMING TEMPORARY SHORE PATROL DUTIES FOR ACTUAL EXPENSES INCURRED WHEN REQUIRED TO PROCURE MEALS AT THEIR OWN EXPENSE NOT TO EXCEED $1.75 FOR EACH DINNER OR SUPPER, AND IT IS ASSUMED THAT YOUR CLAIM IS FOR REIMBURSEMENT IN SUCH MAXIMUM AMOUNT.

REGARDING PARAGRAPH 3 OF THE SHORE PATROL DUTY ORDERS FORM IT IS FOR NOTING THAT PROVISION IS MADE THEREIN FOR INSERTION OF THE AMOUNTS OF THE DAILY CASH ALLOWANCES FOR QUARTERS AND FOR SUBSISTENCE AUTHORIZED IN THE PERFORMANCE OF THE DUTY. THIS PROVISION IS IN ACCORDANCE WITH ARTICLE C- 7905 (2) (D) OF THE BUREAU OF NAVAL PERSONNEL MANUAL WHICH PROVIDES THAT GENERAL SHORE PATROL ORDERS WILL CONTAIN WHAT SUBSISTENCE AND/OR QUARTERS ALLOWANCE ARE AUTHORIZED IF ANY. IN EACH OF THE SPACES PROVIDED IN PARAGRAPH 3 OF YOUR ORDERS FOR THE AMOUNT OF THE QUARTERS AND SUBSISTENCE ALLOWANCES AUTHORIZED, THE ORDER-ISSUING AUTHORITY OF YOUR SHIP, THE U.S.S. INDEPENDENCE (CVA-62), MADE THE INSERTION "N/A" (NOT APPLICABLE). SUCH INSERTION TOGETHER WITH THE OTHER INSERTED RESTRICTIONS AGAINST COST TO THE GOVERNMENT CLEARLY NEGATES ANY INFERENCE THAT MAY BE DRAWN FROM THE PRINTED PROVISIONS OF THE FORM THAT A MAXIMUM ALLOWANCE FOR SUBSISTENCE WAS INTENDED TO BE AUTHORIZED IN CONNECTION WITH YOUR PARTICULAR DUTY.

PARAGRAPH (1) OF ARTICLE C-7905 PROVIDES THAT COMMANDING OFFICERS OUTSIDE THE UNITED STATES, SENIOR OFFICERS PRESENT AFLOAT AND SHORE COMMANDS WITHIN THE UNITED STATES "MAY" AUTHORIZE AND PAY CASH SHORE PATROL ALLOWANCES FOR QUARTERS, SUBSISTENCE AND CERTAIN OTHER SUNDRY EXPENSES WHEN FACILITIES ARE NOT AVAILABLE TO PERSONNEL PERFORMING SHORE PATROL DUTY. THUS, THE REGULATIONS ISSUED IN CONNECTION WITH SHORE PATROL ORDERS AND EXPENSES DO NOT REQUIRE THAT THE ALLOWANCES PRESCRIBED THEREIN FOR SUBSISTENCE BE AUTHORIZED IN EVERY SITUATION BUT CONTEMPLATE THAT PAYMENT OF THE SPECIAL SHORE PATROL ALLOWANCE FOR MEALS IS A MATTER FOR ADMINISTRATIVE DETERMINATION.

WHILE, AS YOU STATE, IT MAY HAVE BEEN ESSENTIAL THAT A MEMBER PERFORM THE SHORE PATROL DUTY, THE RECORD BEFORE US DOES NOT DISCLOSE ANY SUCH AN ADMINISTRATIVE DETERMINATION. AND, A REQUEST FOR A PARTICULAR DUTY ASSIGNMENT FOR COMPASSIONATE REASONS MAY RESULT IN THE GIVING OF PREFERENCE TO THE PERSON MAKING THE REQUEST OVER OTHER PERSONS WHO ARE ELIGIBLE AND BETTER QUALIFIED FOR THE ASSIGNMENT TO MEET THE REQUIREMENTS OF THE SERVICE. THE COMMANDING OFFICER OF YOUR SHIP DID NOT AUTHORIZE THE SPECIAL ALLOWANCE INASMUCH AS YOUR ORDERS WERE ISSUED FOR HUMANITARIAN REASONS RATHER THAN BEING ISSUED IN THE NORMAL COURSE OF OPERATIONS AS REQUIRED BY THE NEEDS OF THE SERVICE, AND IT HAS BEEN OUR OUR CONSISTENT VIEW THAT WHEN AN INDIVIDUAL DUTY ASSIGNMENT IS MADE FOR PERSONAL REASONS OF THE MEMBER, SUCH FACTOR IS PROPERLY FOR ADMINISTRATIVE CONSIDERATION IN DETERMINING WHETHER SPECIAL ALLOWANCES WHICH MAY BE AUTHORIZED IN CONNECTION WITH SUCH ASSIGNMENT SHOULD BE GRANTED. ACCORDINGLY, SINCE THE RECORD FAILS TO SHOW ANY ADMINISTRATIVE INTENT ON THE PART OF YOUR COMMANDING OFFICER TO AUTHORIZE THE SPECIAL SHORE PATROL SUBSISTENCE ALLOWANCE IN CONNECTION WITH THE ASSIGNMENT, NO BASIS IS AFFORDED FOR REIMBURSEMENT FOR YOUR MEALS IN THE MAXIMUM AMOUNT PERMITTED UNDER ARTICLE C-7905 (3), SUPRA, FOR TEMPORARY SHORE PATROL DUTY.

SECTION 402, TITLE 37, U.S.C.HOWEVER, AUTHORIZES ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ARE ENTITLED TO BASIC PAY TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE WHEN RATIONS IN KIND ARE NOT AVAILABLE, AND UNDER EXECUTIVE ORDER 10119, MARCH 27, 1950, ISSUED PURSUANT THERETO, RATIONS IN KIND ARE NOT CONSIDERED AVAILABLE IN THE CASES OF ENLISTED MEN ON DUTY AT STATIONS WHERE IT IS DETERMINED THAT IT IS IMPRACTICABLE FOR SUBSISTENCE IN KIND TO BE FURNISHED BY THE GOVERNMENT. THIS BASIC ENTITLEMENT OF ENLISTED PERSONNEL TO SUBSISTENCE AS APPLICABLE TO YOUR SITUATION IS REFLECTED IN ARTICLE A 4404/4), BUREAU OF NAVAL PERSONNEL MANUAL, WHICH PROVIDES THAT AN ENLISTED MEMBER REQUIRED TO BE ABSENT FROM HIS STATION DURING ANY REGULAR MEAL HOUR DUE TO DUTY ASSIGNMENT IN A NONTRAVEL STATUS IS ENTITLED TO THE PRESCRIBED PRORATED SHARE OF THE CURRENTLY AUTHORIZED DAILY RATE OF THE SUBSISTENCE ALLOWANCE WHEN RATIONS IN KIND ARE NOT AVAILABLE TO HIM OR SUBSISTENCE IN KIND IS NOT OTHERWISE FURNISHED. THE SHORE PATROL OFFICER AT NORFOLK HAS CERTIFIED THAT YOU WERE REQUIRED TO PROCURE 43 DINNERS AND 43 SUPPERS AT PERSONAL EXPENSE DUE TO YOUR BEING ON WATCH AT THE TIME. HENCE, SINCE THE PERTINENT STATUTE AND REGULATIONS CLEARLY CONTEMPLATE PAYMENT OF THE BASIC ALLOWANCE FOR SUBSISTENCE TO MEMBERS WHEN PERFORMING DUTY UNDER SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT YOUR ENTITLEMENT TO THE BASIC ALLOWANCE IS NOT AFFECTED BY THE FACT THAT THE DUTY ASSIGNMENT WAS MADE FOR HUMANITARIAN REASONS.

ACCORDINGLY, A SETTLEMENT FOR PARTIAL BASIC ALLOWANCE FOR SUBSISTENCE AT THE RATE OF $1 EACH FOR DINNERS AND SUPPERS (NAVCOMPT MANUAL, PAR. 044025/3D) WILL ISSUE IN DUE COURSE.