B-120819, DEC 22, 1954

B-120819: Dec 22, 1954

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RETIRED: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26 AND NOVEMBER 5. WHEN YOU WERE DISCHARGED TO ACCEPT A RESERVE COMMISSION AND WERE ORDERED TO ACTIVE DUTY AS A CAPTAIN. YOU WERE RETIRED IN THE RANK OF COLONEL. WHICH YOU NOW HAVE RESUBMITTED. WERE RETURNED TO YOU BY THE DEPARTMENT OF THE ARMY. AT WHICH TIME YOU WERE ADVISED THAT UNDER A DECISION OF THIS OFFICE. YOU WERE NOT ENTITLED TO PAYMENT OF MILEAGE IN EXCESS OF THE DISTANCE FROM WASHINGTON. THAT IF YOU DESIRED PAYMENT ON SUCH BASIS A CERTIFICATE SETTING FORTH YOUR HOME AT THE TIME YOU WERE CALLED TO ACTIVE DUTY SHOULD BE FURNISHED WITH THE RETURN OF THE CLAIMS. NOTWITHSTANDING THE FACT THAT YOUR STATUS WAS CHANGED TO THAT OF A COMMISSIONED OFFICER IN THE RESERVE.

B-120819, DEC 22, 1954

PRECIS-UNAVAILABLE

COLONEL DAVID FRIESEL, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26 AND NOVEMBER 5, 1954, RELATIVE TO YOUR CLAIMS FOR MILEAGE AND FOR REIMBURSEMENT FOR THE COST OF HAULING AND TEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS INCIDENT TO YOUR RETIREMENT.

THE RECORD INDICATES THAT YOU ENLISTED IN THE REGULAR ARMY AS A PRIVATE AT NEW YORK, NEW YORK, ON OCTOBER 26, 1913; THAT YOU CONTINUED TO SERVE AS AN ENLISTED MAN UNDER A SERIES OF CONSECUTIVE ENLISTMENTS UNTIL MARCH 27, 1942, WHEN YOU WERE DISCHARGED TO ACCEPT A RESERVE COMMISSION AND WERE ORDERED TO ACTIVE DUTY AS A CAPTAIN, ARMY OF THE UNITED STATES; AND THAT BY SPECIAL ORDERS NO. 156, DATED AUGUST 11, 1953, YOU WERE RETIRED IN THE RANK OF COLONEL, UNITED STATES ARMY RESERVE, EFFECTIVE AUGUST 31, 1953, AT WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C. ALSO, IT APPEARS THAT YOU TRAVELED FROM WASHINGTON, D.C., TO LAS VEGAS, NEVADA, DECEMBER 15 TO 23, 1953; THAT YOU PLACED YOUR HOUSEHOLD EFFECTS IN COMMERCIAL STORAGE IN WASHINGTON ON NOVEMBER 24, 1953, AND THAT YOU DESIRE SHIPMENT OF THOSE EFFECTS TO LAS VEGAS. YOUR CLAIMS AS ORIGINALLY FILED, WHICH YOU NOW HAVE RESUBMITTED, WERE RETURNED TO YOU BY THE DEPARTMENT OF THE ARMY, AT WHICH TIME YOU WERE ADVISED THAT UNDER A DECISION OF THIS OFFICE, B-116568, DATED SEPTEMBER 21, 1953, AFFIRMED MARCH 10, 1954, YOU WERE NOT ENTITLED TO PAYMENT OF MILEAGE IN EXCESS OF THE DISTANCE FROM WASHINGTON, D.C., TO YOUR HOME OF RECORD, NOR TO SHIPMENT OF HOUSEHOLD EFFECTS TO A SELECTED HOME UPON RETIREMENT, AND THAT IF YOU DESIRED PAYMENT ON SUCH BASIS A CERTIFICATE SETTING FORTH YOUR HOME AT THE TIME YOU WERE CALLED TO ACTIVE DUTY SHOULD BE FURNISHED WITH THE RETURN OF THE CLAIMS.

IT APPEARS TO BE YOUR CONTENTION, IN SUBSTANCE, THAT, SINCE YOU SERVED IN THE REGULAR ARMY AS AN ENLISTED MAN FOR APPROXIMATELY 29 YEARS, AND NOTWITHSTANDING THE FACT THAT YOUR STATUS WAS CHANGED TO THAT OF A COMMISSIONED OFFICER IN THE RESERVE, IN WHICH YOU WERE RETIRED IN THE RANK OF COLONEL, YOU SHOULD BE ALLOWED MILEAGE AND TRANSPORTATION OF HOUSEHOLD EFFECTS FROM YOUR LAST DUTY STATION TO A PLACE SELECTED BY YOU AS HOME INCIDENT TO YOUR RETIREMENT IN LIKE MANNER AS MIGHT HAVE BEEN THE CASE HAD YOU CONTINUED TO SERVE AS AN ENLISTED MAN IN THE REGULAR ARMY AND RETIRED AS SUCH. THERE IS NO EXPRESS AUTHORITY OF LAW ENTITLING MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES TO ANY PLACE SELECTED BY THEM UPON RETIREMENT, THE APPLICABLE PROVISION CONTAINED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, PROVIDING MERELY THAT UPON RETIREMENT THEY SHALL RECEIVE SUCH ALLOWANCES FROM LAST DUTY STATION "TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY." PRESUMABLY FOR THE REASON THAT BECAUSE OF CIRCUMSTANCES PECULIAR TO CAREER MILITARY DUTY IT IS CONSIDERED A REGULAR OFFICER, UPON REACHING RETIREMENT, NO LONGER HAS AN ESTABLISHED RESIDENCE, RETIRED OFFICERS OF THE REGULAR SERVICES WHO SELECT A HOME AND PERFORM TRAVEL THERE WITHIN ONE YEAR AFTER RETIREMENT ARE, UNDER A LONGSTANDING RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, PAID TRAVEL AND TRANSPORTATION ALLOWANCES TO SUCH SELECTED HOME. ENLISTED MEN DO NOT SERVE UNDER THE SAME CIRCUMSTANCES AS DO OFFICERS, THEIR SERVICE BEING MADE UP OF A SERIES OF ENLISTMENTS UPON THE EXPIRATION OF EACH OF WHICH THEY ARE PAID MILEAGE FROM PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT WITHOUT REGARD TO PERFORMANCE OF ACTUAL TRAVEL. THUS, UPON REACHING RETIREMENT, AN ENLISTED MAN IN FACT ALREADY HAS RECEIVED MILEAGE FOR THE FULL DISTANCE BACK TO THE HOME FROM WHICH HE ORIGINALLY ENTERED THE SERVICE AND HAS NO REAL CLAIM TO FURTHER MILEAGE EXCEPT, PERHAPS, FOR THE DISTANCE TO THE PLACE OF LAST ENLISTMENT IF DIFFERENT FROM THE PLACE OF RETIREMENT. NONETHELESS, THE RULE, ORIGINALLY DESIGNED FOR APPLICATION IN CASES OF RETIRED REGULAR OFFICERS, SINCE HAS BEEN APPLIED IN CASES OF ENLISTED REGULARS UPON RETIREMENT. HOWEVER, A CASE OF A MEMBER WHO, AFTER LONG SERVICE AS AN ENLISTED MAN IN THE REGULAR ARMY, WAS COMMISSIONED A RESERVE OFFICER AND LATER RETIRED IN THAT STATUS WAS EXPRESSLY CONSIDERED IN DECISION OF MARCH 10, 1954, TO THE SECRETARY OF DEFENSE, B-116568, A COPY OF WHICH HAS BEEN FURNISHED YOU, AND NO BASIS WAS FOUND FOR EXTENDING THE RULE IN QUESTION TO SUCH CASES. YOU HAVE FURNISHED NO MATERIAL FACTS OR INFORMATION WHICH WOULD WARRANT ANY MODIFICATION OF THAT ACTION.

INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY BY RETIREMENT YOU ARE ENTITLED TO MILEAGE FOR YOUR TRAVEL NOT TO EXCEED THE DISTANCE FROM WASHINGTON, D.C., TO NEW YORK CITY, YOUR HOME OF RECORD. ALSO, YOU MAY BE REIMBURSED FOR EXPENSES INCURRED FOR PACKING AND HAULING YOUR HOUSEHOLD EFFECTS TO STORAGE AT YOUR LAST DUTY STATION AT THIS TIME WITHOUT PREJUDICE TO YOUR RIGHT TO FILE A CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF YOUR EFFECTS, AND ANY TEMPORARY STORAGE INCIDENT THERETO, IF AND WHEN SHIPMENT IS MADE. A SETTLEMENT FOR THE AMOUNT DUE AS INDICATED ABOVE WILL ISSUE AT AN EARLY DATE.