B-121353, DEC 2, 1954

B-121353, DEC 2, 1954

PRECIS-UNAVAILABLE

COLONEL CLEON J. CENTZKOW, RETIRED:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED AUGUST 3, 1954, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 22, 1954, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR YOUR TRAVEL AND REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT FROM PHOENIXVILLE, PENNSYLVANIA, TO EL PASO, TEXAS, DURING THE PERIOD SEPTEMBER 28, 1948, TO APRIL 26, 1949, INCIDENT TO YOUR RETIREMENT AS A COLONEL, UNITED STATES ARMY. YOU URGE THAT IF YOU ARE NOT ENTITLED TO MILEAGE TO EL PASO AS MINNESOTA, THE PLACE FROM WHICH YOU ENTERED THE ACTIVE MILITARY SERVICE IN JULY 1917.

BY ORDERS DATED AUGUST 30, 1948, YOU WERE PLACED ON THE RETIRED LIST AS A COLONEL EFFECTIVE AUGUST 31, 1948, AT VALLEY FORGE GENERAL HOSPITAL, PHOENIXVILLE, PENNSYLVANIA, AND DIRECTED TO PROCEED TO YOUR HOME AT THE PROPER TIME. YOU STATE THAT YOU AND YOUR WIFE TRAVELED BY PRIVATE CONVEYANCE FROM PHOENIXVILLE, PENNSYLVANIA, TO EL PASO, TEXAS, BETWEEN SEPTEMBER 28, 1948, AND APRIL 26, 1949.

SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, AS AMENDED, 37 U.S.C. 112 (1946 ED.), IN EFFECT AT THE TIME OF YOUR RETIREMENT PROVIDED THAT OFFICERS OF THE ARMY WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, INCLUDING TRAVEL FROM LAST STATION TO HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY OR DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT, SHOULD RECEIVE A MILEAGE ALLOWANCE FOR SUCH TRAVEL. THE STATUTE ALSO MADE PROVISION FOR REIMBURSEMENT FOR THE TRAVEL OF DEPENDENTS INCIDENT TO SUCH DIRECTED TRAVEL. THE DECISIONS OF THIS OFFICE HAVE HELD THAT AN OFFICER OF THE REGULAR ESTABLISHMENT PLACED ON THE RETIRED LIST CONTINUES TO BE AN OFFICER AND THAT AN ORDER ISSUED TO HIM BEFORE OR COINCIDENT WITH HIS RETIREMENT AND WHILE ON THE ACTIVE LIST, DIRECTING HIM TO TRAVEL TO HIS HOME UPON RETIREMENT, IS A COMPETENT ORDER ENTITLING HIM TO MILEAGE FOR TRAVEL FROM THE PLACE WHERE HE WAS ON DUTY WHEN RETIRED TO THE HOME SELECTED BY HIM. SEE 4 COMP. GEN. 954, 8 ID. 327, 30 ID. 169. THOSE DECISIONS RECOGNIZE THE FACT THAT GENERALLY A REGULAR OFFICER ON THE ACTIVE LIST IN THE ARMED SERVICES HAS NO FIXED HOME OR PLACE OF ABODE OUTSIDE THE SERVICE AND, HENCE, UPON TERMINATION OF HIS ACTIVE CAREER IN SUCH SERVICE BY RETIREMENT HE MAY SELECT THE PLACE WHICH IS TO BE HIS HOME. THE RIGHT TO MILEAGE IN SUCH CIRCUMSTANCES IS CONTINGENT, HOWEVER, UPON THE TRAVEL DIRECTED BEING PERFORMED PURSUANT TO THE ORDERS.

THE RECORD DOES NOT INDICATE HOW LONG YOU REMAINED AT EL PASO SUBSEQUENT TO APRIL 26, 1949, OR WHEN YOU RETURNED TO PENNSYLVANIA. IN THAT CONNECTION YOU MERELY STATE THAT THE POSTCARD NOTIFICATION OF EXISTENCE AT THE END OF THE MONTHS OF APRIL AND MAY 1949 WERE MAILED TO THE FINANCE OFFICER, U.S. ARMY, WASHINGTON, D.C., FROM EL PASO. THE MILEAGE VOUCHER EXECUTED MARCH 22, 1953, ATTACHED TO YOUR CLAIM WHICH WAS SENT TO THE CLAIMS DIVISION OF THIS OFFICE BY THE FINANCE OFFICE, U.S. ARMY, WASHINGTON, D.C., UNDER DATE OF MAY 8, 1953, SHOWS THAT YOU REQUESTED THE CHECK IN PAYMENT OF THE CLAIM BE MAILED TO A-105, THE WYNDON, WYNNEWOOD, PENNSYLVANIA, WHICH IS THE SAME ADDRESS USED IN YOUR CORRESPONDENCE WITH THIS OFFICE REGARDING YOUR CLAIM.

THE MERE FACT THAT YOU AND YOUR WIFE TRAVELED TO EL PASO, TEXAS, FOLLOWING YOUR RETIREMENT, ARRIVING THERE IN APRIL 1949, IS NOT SUFFICIENT TO ESTABLISH THAT PLACE AS YOUR HOME FOLLOWING RETIREMENT, THERE BEING INSUFFICIENT EVIDENCE TO SHOW THAT SUCH TRAVEL WAS INCIDENT TO ESTABLISHING A HOME AT THAT PLACE; OTHER EVIDENCE TENDING TO SHOW THAT A HOME WAS NOT ESTABLISHED AT THAT POINT. HENCE, IT MAY NOT BE CONCLUDED ON THE PRESENT RECORD THAT YOU ESTABLISHED A HOME IN EL PASO WITHIN THE MEANING OF THE APPLICABLE LAW AND REGULATIONS ENTITLING RETIRED MEMBERS OF THE REGULAR ARMY TO MILEAGE FOR THEMSELVES OR THEIR DEPENDENTS TO A PLACE WHICH THEY SELECT AS HOME AND TO WHICH THEY PERFORM TRAVEL FOLLOWING RETIREMENT. NOR IS THERE ANY LEGAL BASIS ON THE PRESENT RECORD TO ALLOW MILEAGE TO MINNEISKA INCIDENT TO YOUR RETIREMENT ORDERS AUTHORIZING YOU TO PROCEED TO YOUR HOME, SINCE IT IS NOT SHOWN THAT TRAVEL WAS PERFORMED TO MINNEISKA FOR THE PURPOSE OF REESTABLISHING A HOME AT THAT PLACE FOLLOWING YOUR RETIREMENT.

IT FOLLOWS THAT ON THE EVIDENCE SUBMITTED THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND MUST BE SUSTAINED.