B-131159, MAY 7, 1957

B-131159: May 7, 1957

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USA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13. IT APPEARS FROM THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY THAT YOU WERE RETIRED FROM THE ARMY WITH OVER 32 YEARS' SERVICE EFFECTIVE AUGUST 31. IT IS DISCLOSED THAT YOU DEPARTED FORT BLISS. WHERE YOU HAVE BEEN EMPLOYED CONTINUOUSLY AT THE NEW MEXICO MILITARY INSTITUTE. IS THE TOWNSHIP AND COUNTY FROM WHICH YOU ENTERED THE SERVICE AND THE PLACE WHERE YOU VOTE. GAY AND I INTEND TO HAVE NO PERMANENT HOME OTHER THAN A LEGAL ADDRESS.'. I ACTUALLY WILL BE IN MY HOME COUNTY IN AUGUST THIS YEAR (1956). WILL RETURN HERE TO THE NEW MEXICO MILITARY INSTITUTE FOR DUTY AS SUPERINTENDENT.'. THE JOINT TRAVEL REGULATIONS PROVIDE (PARAGRAPH 4158-1A) THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED WITH PAY MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES TO THAT PLACE FROM HIS LAST DUTY STATION.

B-131159, MAY 7, 1957

TO LIEUTENANT GENERAL HOBART R. GAY, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1957, FORWARDED HERE BY LETTER DATED FEBRUARY 27, 1957, FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED SEPTEMBER 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR TRAVEL PERFORMED FROM FORT BLISS, TEXAS, TO ROCKPORT, ILLINOIS, INCIDENT TO YOUR RETIREMENT ON AUGUST 31, 1955.

IT APPEARS FROM THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY THAT YOU WERE RETIRED FROM THE ARMY WITH OVER 32 YEARS' SERVICE EFFECTIVE AUGUST 31, 1955, AT FORT BLISS, TEXAS. IN A LETTER OF AUGUST 13, 1956, TO THE FINANCE CENTER, U.S. ARMY, YOU CLAIMED MILEAGE FOR YOUR TRAVEL AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM EL PASO, TEXAS, TO ROCKPORT, ILLINOIS.

IT IS DISCLOSED THAT YOU DEPARTED FORT BLISS, TEXAS, ON SEPTEMBER 1, 1955, ARRIVED THE SAME DAY AT ROSWELL, NEW MEXICO, WHERE YOU HAVE BEEN EMPLOYED CONTINUOUSLY AT THE NEW MEXICO MILITARY INSTITUTE; THAT ROCKPORT, ILLINOIS, IS THE TOWNSHIP AND COUNTY FROM WHICH YOU ENTERED THE SERVICE AND THE PLACE WHERE YOU VOTE; AND YOU STATE THAT "1. I INTEND TO MAKE ROCKPORT, ILLINOIS, MY LEGAL RESIDENCE SO LONG AS I LIVE. 2. I EXPECT TO BE EMPLOYED AT THE NEW MEXICO MILITARY INSTITUTE FOR APPROXIMATELY ONE OR TWO MORE YEARS, AFTER WHICH DATE MRS. GAY AND I INTEND TO HAVE NO PERMANENT HOME OTHER THAN A LEGAL ADDRESS.' YOU ALSO STATE THAT "UNDER PRESENT PLANNING, I ACTUALLY WILL BE IN MY HOME COUNTY IN AUGUST THIS YEAR (1956), BUT WILL RETURN HERE TO THE NEW MEXICO MILITARY INSTITUTE FOR DUTY AS SUPERINTENDENT.' YOU CERTIFIED THAT YOU TRAVELED TO ROCKPORT, ILLINOIS, AND ARRIVED THERE AUGUST 5, 1956.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND THE REGULATIONS PRESCRIBED UNDER THAT SECTION BY THE SECRETARIES CONCERNED AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES FOR RETIRED MEMBERS AND THEIR DEPENDENTS FROM LAST DUTY STATION TO HOME AND PROVIDES THAT SUCH A RETIRED MEMBER MAY SELECT HIS HOME FOR THE PURPOSES OF THOSE ALLOWANCES. THE JOINT TRAVEL REGULATIONS PROVIDE (PARAGRAPH 4158-1A) THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED WITH PAY MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES TO THAT PLACE FROM HIS LAST DUTY STATION, PROVIDED THAT SUCH TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. THOSE REGULATIONS (PARAGRAPH 1150-3B) DEFINE 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. ALSO, SEE PARAGRAPH 7000-13 OF THE REGULATIONS WHICH PROVIDES THAT MEMBERS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO HOME, PROVIDED THE TRAVEL IS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE.

WE HAVE CONSISTENTLY HELD THAT TRAVEL OF DEPENDENTS MAY NOT BE CONSIDERED TO BE WITHIN THE INTENT AND PURPOSE OF THE LAW AND REGULATIONS AUTHORIZING SUCH TRAVEL UNLESS SUCH TRAVEL ACTUALLY IS PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AND IS INCIDENT TO A CHANGE OF STATION OF THE PERSON IN THE ARMED SERVICES. REIMBURSEMENT FOR TRAVEL OF DEPENDENTS TO A PLACE OF TEMPORARY RESIDENCE FOR SUCH PURPOSES AS A VISIT OR FOR SPENDING A VACATION WITH A MEMBER WHILE HE IS ON LEAVE IS NOT AUTHORIZED. SEE 33 COMP. GEN. 431 AND THE DECISIONS CITED IN THAT CASE.

WHEN A MEMBER SELECTS A HOME AT THE TIME OF RETIREMENT AND PERFORMS TRAVEL TO THAT HOME, IT MUST BE CLEARLY SHOWN THAT AT THE TIME THE TRAVEL WAS PERFORMED THE MEMBER INTENDED TO ESTABLISH A BONA FIDE RESIDENCE AT THE PLACE HE SELECTED AS HIS "HOME" AND INTENDS TO RESIDE THERE. WHILE YOU PERFORMED TRAVEL TO ROCKPORT, ILLINOIS, THE HOME SELECTED BY YOU UPON RETIREMENT, YOU ADMIT THAT AT THE TIME THE TRAVEL WAS PERFORMED YOU DEFINITELY HAD NO INTENTION TO MAKE THAT PLACE YOUR HOME OR ESTABLISH A BONA FIDE RESIDENCE AND REMAIN THERE. RATHER, AFTER A BRIEF VISIT IN THE SUMMER OF 1956 YOU RETURNED TO YOUR DUTIES AS SUPERINTENDENT OF THE NEW MEXICO MILITARY INSTITUTE, ROSWELL, NEW MEXICO. IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT ROCKPORT, ILLINOIS, WAS NOT YOUR "HOME" FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES WITHIN THE MEANING OF THE LAW AND THE REGULATIONS.

ACCORDINGLY, THERE IS NO PROPER BASIS FOR ALLOWING YOUR CLAIM FOR MILEAGE FOR YOUR TRAVEL AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM EL PASO, TEXAS, TO ROCKPORT, ILLINOIS, AND THE SETTLEMENT OF SEPTEMBER 24, 1956, IS SUSTAINED.

CONCERNING YOUR QUERY AS TO WHAT PLACE, IF ANY, YOU AND YOUR WIFE ARE ENTITLED TO TRAVEL ALLOWANCES INCIDENT TO YOUR RETIREMENT, IT IS PROPER TO ADVISE YOU THAT IT APPEARS THAT SINCE YOU ACTUALLY TRAVELED TO ROSWELL, NEW MEXICO, THE PLACE WHERE YOU APPARENTLY INTENDED TO RESIDE AND ACTUALLY HAVE RESIDED, WE WILL GIVE FURTHER CONSIDERATION TO THE MATTER IF YOUR CLAIM IS RESTATED FOR MILEAGE FOR YOUR TRAVEL AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM FT. BLISS, TEXAS, TO ROSWELL, NEW MEXICO.