B-160585, JAN. 26, 1967

B-160585, JAN. 26, 1967

TO SERGEANT EUGENE A. HELTERBRAND, USA, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 7, 1966, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 26, 1965, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE RATIONS FOR THE PERIOD DECEMBER 27, 1962, TO APRIL 5, 1965, WHILE YOU WERE PERFORMING DUTY AS A SPECIALIST 5 ASSIGNED TO BATTERY B, SPECIAL TROOPS, UNITED STATES ARMY AIR DEFENSE CENTER, FORT BLISS, TEXAS.

YOU SAY THAT WHEN YOU ARRIVED AT FORT BLISS FROM FRANCE AND REPORTED TO BATTERY B, SPECIAL TROOPS, ON DECEMBER 27, 1962, YOU ASKED THE FIRST SERGEANT ABOUT PERMISSION TO LIVE OFF THE POST; THAT "PAPER WORK WAS FIXED FOR SEPARATE RATIONS; " THAT YOU RECEIVED CORRESPONDENCE IN JANUARY 1963 ABOUT RATIONS BUT YOU NOW CANNOT LOCATE IT; AND THAT YOU DID NOT NOTICE THAT YOU WERE NOT BEING CREDITED BASIC ALLOWANCE FOR SUBSISTENCE UNTIL MARCH 1965. AN INVESTIGATION CONDUCTED THEREAFTER FAILED TO REVEAL A REQUEST FOR SEPARATE RATIONS IN THE FILES OF YOUR UNIT, YOUR FIELD 201 FILE, OR IN THE RECORDS HOLDING AREA, FORT BLISS, TEXAS. THEREFORE, YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THAT THERE IS NO RECORD OF AN APPLICATION FOR SEPARATE RATIONS BY YOU DURING THE PERIOD OF YOUR CLAIM OR OF AN APPROVAL OF SUCH AN APPLICATION. YOU REQUEST THE REOPENING OF YOUR CLAIM BUT HAVE FURNISHED NO EVIDENCE IN ADDITION TO THAT PREVIOUSLY FORWARDED TO THIS OFFICE.

SECTION 402 (B), TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE ON A DAILY BASIS TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES "WHEN PERMISSION TO MESS SEPARATELY IS GRANTED.' SECTION 301 (A) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 812, AS AMENDED, 37 U.S.C. 251 (1958 ED.),CONTAINED SIMILAR AUTHORITY.

PARAGRAPH 4-23, AR 37-104, CHANGE 38, APRIL 1, 1961, IN EFFECT AT THE TIME OF YOUR ASSIGNMENT TO BATTERY B, PROVIDED THAT AUTHORIZATION FOR PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE WAS REQUIRED BEFORE SUCH PAYMENT MIGHT BE MADE. PARAGRAPH 4-24 PROVIDED THAT FINAL ACTION ON APPLICATIONS FOR THE BASIC ALLOWANCE FOR SUBSISTENCE WOULD BE TAKEN BY THE COMMANDER OF A POST, DIVISION, ARMY, CORPS, OR SIMILAR COMMANDER FOR TROOPS UNDER HIS COMMAND, THAT AUTHORIZATIONS WOULD BE REVIEWED SEMIANNUALLY, OR MORE FREQUENTLY IF NECESSARY, TO INSURE COMPLIANCE WITH THE REGULATIONS, AND THAT WITH DUE REGARD FOR THE BEST INTEREST OF THE SERVICE, THE INSTALLATION COMMANDER MIGHT AUTHORIZE, OR DELEGATE AUTHORITY TO UNIT COMMANDERS TO AUTHORIZE, INDIVIDUALLY, ENLISTED MEN TO MESS SEPARATELY.

BEFORE FAVORABLE ACTION MAY BE TAKEN ON A CLAIM SUCH AS YOURS, IT MUST BE SHOWN THAT YOU WERE CURRENTLY GRANTED PERMISSION TO RATION SEPARATELY BY YOUR INSTALLATION COMMANDER OR BY AN OFFICER TO WHOM SUCH AUTHORITY HAD BEEN PROPERLY DELEGATED. WHILE YOU INDICATE THAT PROPER "PAPER WORK" WAS ACCOMPLISHED TO THAT END, OFFICIAL RECORDS APPEAR TO CONTAIN NO INFORMATION TO THAT EFFECT AND THE FACT THAT YOU WERE NOT PAID SEPARATE RATIONS UNTIL A PROPER AUTHORIZATION WAS ISSUED IN APRIL 1965 ARGUES STRONGLY AGAINST THE EXISTENCE OF AN EARLIER AUTHORIZATION. ALTHOUGH PAYMENT HAS BEEN RECOMMENDED BY THE ADMINISTRATIVE OFFICE, THERE IS NO SHOWING THAT YOUR COMMANDING OFFICER AUTHORIZED YOU TO MESS SEPARATELY PRIOR TO APRIL 1965 AND IN THE ABSENCE OF EVIDENCE WHICH AFFIRMATIVELY ESTABLISHES THAT THE REQUIREMENTS OF THE LAW AND THE REGULATIONS WERE FULFILLED, ..END :