B-144603, MAR. 1, 1961

B-144603, MAR. 1, 1961

TO COLONEL CHARLES F. BALDWIN, USA, RETIRED:

YOUR LETTER DATED NOVEMBER 19, 1960, REQUESTING INFORMATION AS TO THE STATUS OF YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO YOUR RETIREMENT FROM THE U.S. ARMY WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT OF OCTOBER 6, 1960, CONCERNING SUCH CLAIM.

WHILE YOU WERE ON DUTY WITH THE UNITED STATES ARMY MISSION TO VENEZUELA AT CARACAS, VENEZUELA, SPECIAL ORDERS NO. 118, DATED JUNE 18, 1959, AS AMENDED BY SPECIAL ORDERS NO. 129, DATED JULY 6, 1959, RELIEVED YOU FROM YOUR ASSIGNMENT THERE AND ASSIGNED YOU TO UNITED STATES ARMY TRANSFER CENTER (1400), PERSONNEL CENTER, FORT HAMILTON, NEW YORK, FOR THE PURPOSE OF RETIREMENT. YOU WERE DIRECTED TO PROCEED FROM VENEZUELA TO CONTINENTAL UNITED STATES ON OR ABOUT JULY 21, 1959, VIA COMMERCIAL AIRCRAFT AND/OR SURFACE VESSEL. IT WAS PROVIDED THAT CONCURRENT TRAVEL FOR YOUR WIFE AND TRANSPORTATION OF HOUSEHOLD GOODS WAS AUTHORIZED. PURSUANT TO THESE ORDERS YOU AND YOUR WIFE TRAVELED FROM CARACAS TO FORT HAMILTON WHERE BY SPECIAL ORDERS NO. 123, DATED JUNE 22, 1959, YOU WERE RETIRED FROM ACTIVE SERVICE, RELIEVED FROM YOUR ASSIGNMENT AT FORT HAMILTON AND FURTHER DUTY, JULY 31, 1959, AND PLACED ON THE UNITED STATES ARMY RETIRED LIST AUGUST 1, 1959. TRANSPORTATION TO HOME OF SELECTION WITHIN ONE YEAR WAS AUTHORIZED.

IT APPEARS THAT YOU DID NOT IMMEDIATELY SELECT YOUR HOME UPON RETIREMENT, BUT AFTER VISITING YOUR RELATIVES IN CALIFORNIA, YOU AND MRS. BALDWIN RETURNED TO CARACAS VIA NEW ORLEANS, LOUISIANA, WHERE YOU REMAINED, AND CARACAS HAS BECOME YOUR HOME OF SELECTION. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE TO YOU FOR THE TRAVEL FROM FORT HAMILTON TO CARACAS.

IN THE SETTLEMENT OF OCTOBER 6, 1960, YOU WERE ALLOWED THE SUM OF $81.42, REPRESENTING AN ALLOWANCE OF SIX CENTS PER MILE FOR YOUR TRAVEL FROM FORT HAMILTON TO NEW ORLEANS AND FROM LA CUMIRS, VENEZUELA, TO CARACAS, AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL WAS DISALLOWED AS NOT HAVING BEEN PERFORMED AS A NECESSARY INCIDENT TO YOUR RETIREMENT. IT APPEARS TO BE YOUR CONTENTION THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR YOUR WATER TRANSPORTATION BY COMMERCIAL MEANS FROM NEW ORLEANS TO LA GUAIRA AND TO ALLOWANCES FOR YOUR WIFE'S TRAVEL FROM FORT HAMILTON TO CARACAS.

SECTION 303 (A) AND (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AWARDED, 37 U.S.C. 253 (A) AND (C), AND THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT THERETO, AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES FOR RETIRED MEMBERS AND THEIR DEPENDENTS FROM LAST DUTY STATION TO HOME UPON THEIR RETIREMENT. PARAGRAPH 4158-1A OF THE REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED UNDER THE CIRCUMSTANCES INVOLVED IN YOUR CASE MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 1150-3B DEFINES THE TERM "HOME OF SELECTION" AS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT UNDER THE CONDITIONS OUTLINED IN PARAGRAPH 4158- 1A. TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE IN SUCH CASES IS AUTHORIZED BY PARAGRAPH 7012A FROM LAST DUTY STATION TO THE SELECTED HOME, AND REIMBURSEMENT FOR THEIR TRAVEL EXPENSES MAY NOT EXCEED THAT AUTHORIZED BETWEEN THOSE POINTS.

PARAGRAPH 3 (C), ARMY REGULATIONS 635-130, PROVIDES THAT OFFICERS ASSIGNED TO DUTY WITHIN THE CONTINENTAL UNITED STATES WILL BE RETIRED AT THEIR DUTY STATIONS, BUT THAT OFFICERS ON FOREIGN SERVICE NORMALLY WILL BE RETURNED TO THE CONTINENTAL UNITED STATES TO ARRIVE ON OR BEFORE DATE OF RETIREMENT AND THAT THEIR RETIREMENTS WILL BE EFFECTED AT THE APPROPRIATE PERSONNEL PROCESSING ACTIVITY ADJACENT TO APPROPRIATE ARMY TERMINAL. CONSISTENT WITH THOSE REGULATIONS YOU WERE DIRECTED BY SPECIAL ORDERS NO. 118 TO PROCEED FROM CARACAS TO FORT HAMILTON FOR RETIREMENT AT THAT POINT. WHETHER, HOWEVER, AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE, AND WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT--- PARTICULARLY AS TO ITS DURATION, THE NATURE OF THE DUTY ENJOINED, ETC. 24 COMP. GEN. 667, 670; 33 COMP. GEN. 98. YOU WERE TRANSFERRED FROM DUTY OVERSEAS TO FORT HAMILTON FOR A SHORT PERIOD OF DUTY IN CONNECTION WITH YOUR RETIREMENT ANNOUNCED BY SPECIAL ORDERS NO. 123 RELIEVING YOU FROM FURTHER DUTY ON JULY 31, 1959. THUS FORT HAMILTON MUST BE REGARDED AS A TEMPORARY DUTY STATION. THE PERMANENT CHANGE OF STATION IN YOUR CASE WAS FROM OVERSEAS TO THE HOME TO BE SELECTED BY YOU INCIDENT TO YOUR RETIREMENT.

UNDER YOUR ORDERS YOU WERE ENTITLED TO TRANSPORT YOUR DEPENDENT FROM YOUR LAST PERMANENT DUTY STATION, WHICH WAS AT CARACAS, TO THE PLACE ESTABLISHED AS YOUR RESIDENCE UPON RETIREMENT. SINCE YOU SELECTED CARACAS AS YOUR HOME, NO AUTHORITY EXISTED FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL INCIDENT TO YOUR RETIREMENT, YOUR LAST DUTY STATION AND HOME OF SELECTION BEING LOCATED AT THE SAME PLACE AND NO TRAVEL BEING REQUIRED BETWEEN THE LAST DUTY STATION AND HOME OF SELECTION. ACCORDINGLY, SO MUCH OF THE SETTLEMENT DATED OCTOBER 6, 1960, AS DISALLOWED YOUR CLAIM FOR YOUR WIFE'S TRAVEL IS SUSTAINED.

THE TRAVEL PERFORMED BY YOU PURSUANT TO SPECIAL ORDERS NO. 118 WAS REQUIRED BY THE ORDERS AND SPECIAL ORDERS NO. 123 CONSTITUTES AUTHORITY FOR YOUR TRANSPORTATION AT GOVERNMENT EXPENSE FROM FORT HAMILTON TO YOUR HOME OF SELECTION. GOVERNMENT TRANSPORTATION IS SHOWN TO HAVE BEEN UNAVAILABLE FOR THE PERFORMANCE OF TRAVEL FROM FORT HAMILTON TO YOUR HOME. THEREFORE, REGARDLESS OF THE ROUTE YOU ACTUALLY TRAVELED FROM FORT HAMILTON TO CARACAS, THE AMOUNT OF YOUR REIMBURSEMENT SHOULD HAVE BEEN MEASURED BY THE COST TO THE GOVERNMENT HAD TRANSPORTATION BEEN FURNISHED TO YOU FROM FORT HAMILTON TO CARACAS BY COMMERCIAL MEANS. ACCORDINGLY, THE AMOUNT CHARGEABLE TO THE UNITED STATES ON SUCH BASIS WILL BE COMPUTED AND A SETTLEMENT FOR THE DIFFERENCE, IF ANY, OVER THE AMOUNT ALLOWED FOR YOUR TRAVEL BY THE SETTLEMENT DATED OCTOBER 6, 1960,WILL ISSUE AT AN EARLY DATE.