B-130417, MARCH 26, 1957, 36 COMP. GEN. 670

B-130417, MARCH 26, 1957, 36 COMP. GEN. 670

MILITARY PERSONNEL - SUBSISTENCE ALLOWANCES - RATES - EMERGENCY CONDITIONS - RETROACTIVE EFFECT A DETERMINATION THAT SUBSISTENCE ALLOWANCES AT EMERGENCY RATES SHOULD BE PAID MEMBERS OF THE UNIFORMED SERVICES AT A PARTICULAR PLACE TO COMPENSATE FOR EXTRAORDINARY EXPENSES MAY BE MADE RETROACTIVELY EFFECTIVE TO COVER A REASONABLE TIME BETWEEN THE DATE THE EMERGENCY CONDITIONS COMMENCED AND THE DATE OF THE ADMINISTRATIVE DETERMINATION. AIRMEN WHO, PURSUANT TO AN ADMINISTRATIVE DETERMINATION DATED AUGUST 12, 1952, WHICH AUTHORIZED SUBSISTENCE ALLOWANCE PAYMENTS AT EMERGENCY RATES OF $3.00 PER DAY, RETROACTIVE TO JULY 1, 1952, WERE PAID $3.00 PER DAY RETROACTIVELY FROM DATE OF ARRIVAL AT STATION IN FEBRUARY 1952 TO MAY 1, 1952 AND THEREAFTER AT $3.42 PER DAY ARE NOT ENTITLED TO RETAIN INCREASED SUBSISTENCE ALLOWANCE PAYMENTS RECEIVED PRIOR TO JULY 1, 1952, RETROACTIVELY EFFECTIVE DATE OF THE ADMINISTRATIVE DETERMINATION, NOR TO PAYMENTS AT RATES IN EXCESS OF $3.00 PER DAY AFTER JULY 1, 1952, IN VIEW OF FACT THAT NEITHER ACT OF MAY 19, 1952, NOR AIR FORCE REGULATIONS OF JULY 1, 1952, WHICH AUTHORIZED INCREASE AT NOT TO EXCEED $3.42 PER DAY, IS SELF-EXECUTING.

TO THE SECRETARY OF THE AIR FORCE, MARCH 26, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 14, 1957, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE ( FINANCIAL MANAGEMENT), REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICES NOTICES OF EXCEPTION STATED TO HAVE BEEN ISSUED AGAINST 84 PAYMENTS OF BASIC ALLOWANCE FOR SUBSISTENCE AT THE EMERGENCY RATE, WHICH HAVE BEEN MADE TO 73 AIRMEN.

SECTION 301 (E) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 251 (E), AUTHORIZES PAYMENT OF A BASIC ALLOWANCE FOR SUBSISTENCE TO ENLISTED PERSONS AT A GREATER RATE WHEN DUTY IS PERFORMED "UNDER EMERGENCY CONDITIONS" THAN WHEN DUTY IS PERFORMED UNDER NORMAL CONDITIONS IN PLACES WHERE GOVERNMENT MESSING FACILITIES ARE NOT AVAILABLE. SECTION 3 (D), EXECUTIVE ORDER NO. 10119, MARCH 27, 1950, ISSUED UNDER AUTHORITY CONTAINED IN SECTION 201, DEFINES SUCH EMERGENCY CONDITIONS AS "CONDITIONS REQUIRING EXTRAORDINARY EXPENSES FOR SUBSISTENCE" AS DETERMINED IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED. APPLICABLE AIR FORCE REGULATIONS CONTAINED IN PARAGRAPH 20104-B (4), AIR FORCE MANUAL 173-20, JULY 1, 1952, PROVIDED THAT DETERMINATIONS AS TO WHETHER "EMERGENCY CONDITIONS" EXISTED IN A PARTICULAR LOCALITY, SHOULD BE MADE BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF, PERSONNEL, HEADQUARTERS, U.S. AIR FORCE, AND THAT REQUESTS FOR SUCH DETERMINATIONS SHOULD BE SUBMITTED TO THAT OFFICE.

IT IS REPORTED THAT IN THE SITUATIONS HERE INVOLVED, THE COMMANDING OFFICER OR OFFICERS OF THE AIRMEN CONCERNED INITIATED A REQUEST FOR A DETERMINATION OF "EMERGENCY CONDITIONS" SHORTLY AFTER THEY LEARNED THAT THE MEN UNDER THEIR COMMAND WERE INCURRING EXTRAORDINARY EXPENSES FOR SUBSISTENCE AND THAT AFTER A LAPSE OF SEVERAL MONTHS, DURING WHICH A REQUEST WAS MADE FOR ADDITIONAL INFORMATION, IT WAS DETERMINED THAT SUCH CONDITIONS EXISTED WITHIN THE MEANING OF THE CITED PROVISIONS OF LAW AND REGULATIONS. IT IS REPORTED, ALSO, THAT UNDER SUCH CIRCUMSTANCES, PAYMENTS AT THE EMERGENCY RATE WERE AUTHORIZED RETROACTIVELY TO THE DATE THE AIRMEN WERE ASSIGNED TO DUTY IN THE LOCALITY INVOLVED. WHILE YOUR LETTER MAKES REFERENCE TO NO SPECIFIC PAYMENT, IT APPEARS THAT PAYMENTS MADE PURSUANT TO AUTHORIZATIONS SUCH AS ST ENDORSEMENT DATED AUGUST 12, 1952, DEPARTMENT OF THE AIR FORCE, TO OFFUTT AIR FORCE BASE, OMAHA, NEBRASKA, ARE REPRESENTATIVE OF THOSE INVOLVED. THAT AUTHORIZATION IS AS FOLLOWS:

1. AUTHORITY IS GRANTED TO PAY THE EMERGENCY SUBSISTENCE ALLOWANCES AS PROVIDED IN PARAGRAPH 6C, AFR 173-124, DATED 13 MARCH 1951, TO AIRMEN ON DUTY WITH DETACHMENTS 6 AND 16 OF THE 3903RD RADAR BOMB SCORING GROUP LOCATED AT HOUSTON, TEXAS AND CHARLOTTE, NORTH CAROLINA RESPECTIVELY.

2. THIS AUTHORITY IS RETROACTIVE TO 1 JULY 1952. AT SUCH TIME AS THE COMMANDING OFFICER, 3903RD RADAR BOMB SCORING GROUP DETERMINES THAT AN EMERGENCY NO LONGER EXISTS, THE AUTHORITY GRANTED ABOVE WILL TERMINATE.

IT WILL BE NOTED THAT THE AUTHORIZATION, STATED TO BE EFFECTIVE JULY 1, 1952, WAS FOR PAYMENT OF THE EMERGENCY SUBSISTENCE ALLOWANCE AS FIXED IN PARAGRAPH 6C, AIR FORCE REGULATION 173-124, MARCH 13, 1951. THAT REGULATION FIXED THE EMERGENCY RATE AT $3 PER DAY. THE MAXIMUM EMERGENCY RATE WAS INCREASED FROM $3 TO $3.42 PER DAY BY THE ACT OF MAY 19, 1952, 66 STAT. 80, 37 U.S.C. 251. AFTER THE ISSUANCE OF SUCH AUTHORIZATION THE AIRMEN INVOLVED WERE CREDITED WITH THE DIFFERENCE BETWEEN THE REGULAR RATE OF $2.25 PER DAY THERETOFORE PAID TO THEM AND THE EMERGENCY RATE OF $3 PER DAY FOR APPLICABLE PERIODS PRIOR TO APRIL 30, 1952, AND THE DIFFERENCE BETWEEN THE INCREASED REGULAR RATE OF $2.57 AND $3.42 FROM MAY 1, 1952, EFFECTIVE DATE OF THE ACT OF MAY 19, 1952, TO THE DATE OF LAST PAYMENT AT THE REGULAR RATE. PAYMENT WAS MADE AT THE $3.42 RATE AFTER THAT DATE. THE AUDIT EXCEPTIONS COVER THE PERIODS PRIOR TO THE DATE OF THE ADMINISTRATIVE DETERMINATION OF THE EMERGENCY CONDITIONS AND APPLY TO THE PAYMENTS IN EXCESS OF THE REGULAR RATE. THERE IS NO SHOWING OF AUTHORITY FOR ADJUSTING SUBSISTENCE ALLOWANCE PAYMENTS FOR PERIODS PRIOR TO THE EFFECTIVE DATE STATED IN THE AUTHORIZATION.

IN SOME CIRCUMSTANCES, EMERGENCY CONDITIONS CANNOT ACCURATELY BE FORESEEN, SINCE THE EXTENT OF THE EMERGENCY--- IN THIS TYPE OF CASE, THE AMOUNT OF THE EXTRAORDINARY EXPENSES--- HAS TO BE EXPERIENCED TO BE KNOWN. WHILE THE REGULAR RATE OF BASIC ALLOWANCE FOR SUBSISTENCE IS A FIXED ONE, PAYMENT AT THE EMERGENCY RATE IS AUTHORIZED AT "NOT TO EXCEED" THE MAXIMUM RATE. THE STATUTE THUS CONTEMPLATES THE FIXING OF VARYING EMERGENCY RATES BASED UPON CONDITIONS ACTUALLY ENCOUNTERED AT DIFFERENT PLACES. IT WOULD SEEM THAT TO ACCOMPLISH THE PURPOSE OF THE STATUTE SUCH RATE MIGHT BE MADE EFFECTIVE RETROACTIVELY TO COVER A REASONABLE TIME BETWEEN THE DATE THE EMERGENCY CONDITIONS COMMENCED AND THE DATE OF THE ADMINISTRATIVE DETERMINATION. WHILE IT WAS HELD IN 32 COMP. GEN. 315, THAT THE REGULATIONS MAY NOT BE AMENDED RETROACTIVELY TO CHANGE EXISTING RATES OF PER DIEM, IT THERE WAS RECOGNIZED THAT REGULATIONS, WHEN FIRST ISSUED, MAY BE MADE RETROACTIVE IN PROPER CASES TO THE DATE CONTEMPLATED BY THE STATUTE. IT IS OUR VIEW THAT THE FIRST DETERMINATION THAT BASIC ALLOWANCE FOR SUBSISTENCE AT THE EMERGENCY RATE SHOULD BE PAID FOR A PARTICULAR PLACE MAY INCLUDE A DATE FROM WHICH SUCH INCREASED PAYMENTS ARE AUTHORIZED AND THAT SUCH DETERMINATION MAY BE EFFECTIVE RETROACTIVELY TO THE EXTENT INDICATED ABOVE.

IN THAT CONNECTION, IT IS NOTED THAT WHILE THE ST ENDORSEMENT OF AUGUST 12, 1952, MENTIONED ABOVE, AUTHORIZED PAYMENT OF SUBSISTENCE ALLOWANCE AT THE RATE PROVIDED IN PARAGRAPH 6C, AIR FORCE REGULATION 173-124, MARCH 13, 1951 ($3 PER DAY), PARAGRAPH 1, SPECIAL ORDERS, NO. 35, AUGUST 28, 1952, HEADQUARTERS, 3944TH RADAR BOMB SCORING SQUADRON, TURNER AIR FORCE BASE, ALBANY, GEORGIA, CITING AS AUTHORITY THE ST ENDORSEMENT OF AUGUST 12, 1952, AND "CONFIRMING" APPARENTLY FICTITIOUS VERBAL ORDERS DATED JULY 1, 1952, OF THE COMMANDING OFFICER, PURPORTED TO AUTHORIZE PAYMENT AT THE RATE OF $3.40 PER DAY EFFECTIVE FROM DATE OF ARRIVAL AT DOUGLAS MUNICIPAL AIRPORT, CHARLOTTE, NORTH CAROLINA. PAY RECORDS SHOW THAT THE AIRMEN INVOLVED WERE CREDITED WITH INCREASED RATES RETROACTIVE TO DIFFERENT DATES IN FEBRUARY 1952, BASED ON A MAXIMUM RATE OF $3 PER DAY PRIOR TO MAY 1, 1952, AND A RATE OF $3.42 PER DAY THEREAFTER. HOWEVER, WE HAVE FOUND NO AUTHORITATIVE ADMINISTRATIVE ACTION WHICH INCREASED THE RATE ABOVE $3 PER DAY. ENACTMENT OF THE ACT OF MAY 19, 1952, DID NOT AUTOMATICALLY INCREASE THE RATE TO $3.42 AND PROMULGATION OF PARAGRAPH 20101-D, AIR FORCE MANUAL 173-20, JULY 1, 1952, WHICH AUTHORIZED PAYMENT IN THE LANGUAGE OF THE STATUTE AT "NOT TO EXCEED" $3.42 PER DAY, DID NOT ACCOMPLISH THAT RESULT, SINCE NEITHER WAS SELF-EXECUTING. HENCE, UNDER THE AUTHORIZATION OF AUGUST 12, 1952, WE FIND NO AUTHORITY FOR PAYMENT OF SUBSISTENCE ALLOWANCE AT THE EMERGENCY RATE PRIOR TO JULY 1, 1952, NOR DOES THE RECORD BEFORE US SHOW AUTHORITY TO PAY THAT ALLOWANCE AT A RATE IN EXCESS OF $3 PER DAY AFTER JULY 1, 1952.

ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TO HAVE THE AUDIT EXCEPTIONS INVOLVED ADJUSTED ON THAT BASIS.