B-166070, MAY 15, 1969

B-166070, MAY 15, 1969

TO MR. RASHIDUL Z. CHOUDHRY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 5, 1969, AGAIN REQUESTING RECONSIDERATION OF YOUR CLAIM FOR SEPARATE RATIONS FOR THE PERIOD FROM NOVEMBER 28, 1966, TO JANUARY 22, 1967, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE.

YOU SAY THAT YOU SERVED IN THE AIR FORCE FROM SEPTEMBER 3, 1964, TO SEPTEMBER 4, 1967. IT APPEARS THAT SOME TIME IN SEPTEMBER 1966 YOU INITIATED AN AF FORM 220 REQUESTING PERMISSION TO MESS SEPARATELY BASED ON YOUR RELIGIOUS BELIEFS AND THAT YOUR REQUEST WAS APPROVED BY YOUR SQUADRON COMMANDER. HOWEVER, THE FINANCE AND ACCOUNTING OFFICER AT YOUR STATION QUESTIONED THE AUTHORIZATION AND, PRIOR TO POSTING IN THE APPROPRIATE RECORDS, REFERRED THE AF FORM 220 -- WHICH, HE STATES, HAD BEEN SIGNED BY YOU -- TO THE BASE COMMANDER FOR REVIEW. ON NOVEMBER 28, 1966, THE BASE COMMANDER DISAPPROVED YOUR REQUEST THAT YOU BE ALLOWED TO MESS SEPARATELY FOR RELIGIOUS REASONS.

ON THE ASSUMPTION THAT THE APPROVAL OF YOUR SQUADRON COMMANDER WAS EFFECTIVE UNTIL OVERRULED BY THE BASE COMMANDER, OUR CLAIMS DIVISION, BY SETTLEMENT DATED DECEMBER 9, 1968, ALLOWED YOU THE AMOUNT OF $67.86 REPRESENTING SEPARATE RATIONS AT THE RATE OF $1.17 PER DAY FROM OCTOBER 1, 1966, THROUGH NOVEMBER 27, 1966, BUT WITHHELD PAYMENT SUBSEQUENT TO THE DATE OF THE BASE COMMANDER'S DISAPPROVAL. WE SUSTAINED THAT SETTLEMENT IN OUR DECISION OF MARCH 27, 1969, B-166070, FOR THE REASON THAT WHILE YOUR SQUADRON COMMANDER AUTHORIZED YOU TO MESS SEPARATELY, THE DISAPPROVAL OF THAT ACTION BY THE BASE COMMANDER, WITHOUT QUALIFICATION AS TO TIME, TERMINATED WHATEVER RIGHTS TO SEPARATE RATIONS ALLOWANCE YOU MAY HAVE HAD.

THE BASIS OF YOUR REQUEST FOR REVIEW IS THAT SINCE THE REGULATIONS REQUIRED THE USE OF AN AF FORM 220 TO START, STOP, OR ADJUST BASIC ALLOWANCE FOR SUBSISTENCE, AND SINCE YOU DID NOT SIGN AN AF FORM 220 TO STOP SEPARATE RATIONS, YOU ARE ENTITLED TO SEPARATE RATIONS ALLOWANCE THROUGH JANUARY 22, 1967.

THE REGULATIONS PERTAINING TO SEPARATE RATIONS IN EFFECT DURING THE PERIOD COVERED BY YOUR CLAIM ARE CONTAINED IN AFM 177-105, 1964 ED. PARAGRAPHS 10422A, B AND C OF THOSE REGULATIONS PROVIDED AS FOLLOWS:

"A. NORMALLY, ENLISTED MEMBERS WILL BE SUBSISTED IN KIND. FOR UNIFORMITY IN MAKING DETERMINATIONS, GOVERNMENT MESSES AVAILABLE IN THE GEOGRAPHICAL AREA MUST BE USED TO THE FULLEST EXTENT COMPATIBLE WITH ECONOMY AND EFFICIENCY. EVERY COMMANDER HAVING ENLISTED PERSONNEL ASSIGNED TO HIS COMMAND MUST DETERMINE WHETHER A GOVERNMENT MESS IS AVAILABLE. IF MESS IS AVAILABLE, HE MUST THEN DETERMINE THE PRACTICABILITY (PARA 10424) FOR ENLISTED PERSONNEL ASSIGNED TO HIS COMMAND TO USE SUCH MESS.

"B. THE SUBSISTENCE ALLOWANCES REFERRED TO IN THIS SECTION ARE NOT TO BE AUTHORIZED SOLELY ON THE BASIS OF MARITAL STATUS, DEPENDENCY, LOCATION OF THE AIRMAN'S RESIDENCE, OR AS AN EXTRA INCENTIVE OR COMPENSATION ON THE BASIS OF AIRMAN'S ASSIGNMENT TO SPECIALIZED DUTIES (SUCH AS BAND, RECRUITING, CHAUFFEUR, OR ORDERLY).

"C. DETERMINATIONS BY COMMANDERS ARE CONCLUSIVE OF THE RIGHTS OF THE AIRMAN, SUBJECT TO REVIEW OF PAYMENTS INVOLVED BY ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE COURTS. (8 COMP. GEN 82; 39 ID. 614)" PARAGRAPH 10425B PROVIDED IN PERTINENT PART THAT:

"PERMISSION TO MESS SEPARATELY MAY BE GRANTED BY THE COMMANDER OF A MAJOR COMMAND, NUMBERED AIR FORCE, AIR DIVISION, AF BASE, WING, OR OTHER COMPARABLE SEPARATE COMMAND. AUTHORITY TO GRANT PERMISSION TO MESS SEPARATELY MAY BE REDELEGATED TO SQUADRON COMMANDERS, SQUADRON SECTION COMMANDERS, UNIT PERSONNEL OFFICERS, OR BASE PERSONNEL OFFICERS FOR ORGANIZATIONS OPERATING UNDER THE CBPO CONCEPT, IF STANDARD CRITERIA FOR GRANTING PERMISSION ARE ESTABLISHED THROUGH BASE OR COMMAND * * *.'

NO INFORMATION HAS BEEN FURNISHED AS TO WHETHER YOUR SQUADRON COMMANDER HAD BEEN DELEGATED AUTHORITY TO GRANT PERMISSION TO MESS COMMANDER HAD BEEN DELEGATED AUTHORITY TO GRANT PERMISSION TO MESS SEPARATELY. HOWEVER, IF HE HAD THAT AUTHORITY HE WAS BOUND BY THE POLICIES OF THE AIR FORCE AND THE STANDARD CRITERIA ESTABLISHED BY THE BASE COMMANDER IN SUCH MATTERS. SINCE THE FINANCE OFFICER QUESTIONED THE ACTION TAKEN BY YOUR SQUADRON COMMANDER FOR THE STATED REASON THAT HE DOUBTED "WHETHER OCCASIONAL DIETARY PROBLEMS WERE ADEQUATE REASONS TO MESS SEPARATELY," HE ACTED PROPERLY IN REFERRING THE MATTER FOR REVIEW. IN FORWARDING THE PAPERS TO THE BASE COMMANDER, THE BASE COMPTROLLER RECOMMENDED DISAPPROVAL OF YOUR REQUEST "SINCE IT DOES NOT MEET THE REQUIREMENTS OF THE ESTABLISHED CRITERIA FOR IMPRACTICABILITY OF MESSING.'

THE BASE COMMANDER'S DISAPPROVAL OF YOUR REQUEST FOR PERMISSION TO MESS SEPARATELY, WITHOUT QUALIFICATION AS TO TIME, UNEQUIVOCALLY TERMINATED ANY RIGHT TO PAYMENT OF SEPARATE RATIONS ALLOWANCE YOU MAY HAVE HAD PRIOR TO THE DATE OF HIS ACTION ON NOVEMBER 28, 1966. THAT DISAPPROVAL WAS IN THE NATURE OF A REVIEW OF YOUR ORIGINAL REQUEST ON AF FORM 220 AND DID NOT REQUIRE THE USE OF ANOTHER AF FORM 220 TO STOP YOUR ENTITLEMENT. IN A COMMUNICATION DATED NOVEMBER 30, 1966, ADDRESSED TO "551AAF" THE COMPTROLLER REQUESTED THAT YOU "BE ADVISED OF THE DISAPPROVAL AND THE REASONS FOR THE DISAPPROVAL.' SINCE THE RIGHT TO MESS SEPARATELY AND RECEIVE A CASH ALLOWANCE IN LIEU OF SUBSISTENCE IN KIND IS PERMISSIVE ONLY, IT CAN BE WITHDRAWN AT ANY TIME BY THE PERSON GRANTING SUCH PERMISSION OR, AS IN YOUR CASE, BY THE DELEGATING AUTHORITY.

WHILE THERE IS DOUBT AS TO WHETHER YOU WERE PROPERLY AUTHORIZED TO MESS SEPARATELY AND RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE, WE WILL NOT QUESTION THE AMOUNT ALLOWED YOU BY SETTLEMENT DATED DECEMBER 9, 1968. HOWEVER, IN NO CASE MAY A SEPARATE RATIONS ALLOWANCE BE PAID UNLESS THE PAYMENT IS AUTHORIZED BY PROPER AUTHORITY. SINCE THE BASE COMMANDER, UPON REVIEW, DISAPPROVED YOUR REQUEST FOR PERMISSION TO MESS SEPARATELY AND SINCE HIS DETERMINATION WAS CONCLUSIVE OF YOUR RIGHTS, THERE IS NO AUTHORITY FOR PAYMENT OF SEPARATE RATIONS ALLOWANCE SUBSEQUENT TO THE DATE OF HIS DISAPPROVAL.

AS STATED IN OUR DECISION OF MARCH 27, 1969, SINCE YOU WERE ENTITLED TO RATIONS IN KIND WITHOUT CHARGE SUBSEQUENT TO NOVEMBER 27, 1966, IF YOU ATE ANY MEALS IN THE BASE DINING HALL FOR WHICH YOU WERE CHARGED, A CLAIM FOR REFUND OF THE AMOUNT PAID BY YOU FOR SUCH MEALS WILL RECEIVE CONSIDERATION IF YOU CAN ESTABLISH THE NUMBER OF MEALS YOU ATE THERE AND THE AMOUNTS YOU PAID FOR THOSE MEALS.