B-135282, APR. 28, 1958

B-135282, APR. 28, 1958

TO MR. FORREST I. TOWNSEND:

FURTHER REFERENCE IS MADE TO YOUR LETTER (UNSIGNED) OF JANUARY 22, 1958, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 16, 1958, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR MILEAGE AND REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM PENSACOLA, FLORIDA, TO HARDY, NEBRASKA, INCIDENT TO YOUR DISCHARGE FROM THE UNITED STATES MARINE CORPS AS A CAPTAIN ON JUNE 30, 1956.

THE RECORD SHOWS THAT UNDER DATE OF NOVEMBER 1, 1957, HEADQUARTERS UNITED STATES MARINE CORPS, FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT, THE SAME BEING ACCOMPANIED BY AN ADMINISTRATIVE STATEMENT OF FACTS AND COPIES OF THE ORDERS DATED MAY 31, 1956, BY WHICH YOU WERE HONORABLY DISCHARGED FROM THE MARINE CORPS EFFECTIVE JUNE 30, 1956, WITH SEVERANCE PAY, IN CONFORMITY WITH THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 795, AS AMENDED. BY THE SETTLEMENT OF JANUARY 16, 1958, YOUR CLAIM WAS DISALLOWED GENERALLY ON THE GROUNDS THAT THE EVIDENCE FAILED TO ESTABLISH THAT HARDY, NEBRASKA--- REPORTED AS HAVING BEEN SELECTED BY YOU AS YOUR HOME UPON DISCHARGE--- WAS, IN FACT, YOUR HOME FOR TRAVEL ALLOWANCE PURPOSES WITHIN THE MEANING OF THE LAW AND REGULATIONS. IN YOUR LETTER OF JANUARY 22, 1958, YOU INDICATE A BELIEF THAT THE FACT HARDY WAS THE PLACE RECORDED AS YOUR HOME OF RECORD THROUGHOUT YOUR ACTIVE SERVICE SUFFICIENTLY SUPPORTS YOUR CLAIM FOR MILEAGE AND TRANSPORTATION OF DEPENDENTS TO THAT PLACE AS FOR TRAVEL TO A SELECTED HOME.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 11, 1955, 69 STAT. 691, AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES FOR DISCHARGED MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS FROM THEIR LAST DUTY STATION TO THEIR HOME AND PROVIDES FURTHER THAT A MEMBER WHO IS DISCHARGED WITH SEVERANCE PAY IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY, MAY SELECT HIS HOME FOR THE PURPOSE OF SUCH ALLOWANCES. PARAGRAPH 1150-3 (B), JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THIS STATUTE, PROVIDES THAT THE TERM "HOME OF SELECTION" AS USED IN THESE REGULATIONS, MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT, DISCHARGE WITH SEVERANCE PAY, OR PLACEMENT ON A TEMPORARY DISABILITY RETIRED LIST UNDER THE CONDITIONS AUTHORIZED IN PARAGRAPH 4158- 1A. THE LATTER PARAGRAPH PROVIDES THAT A MEMBER DISCHARGED WITH SEVERANCE PAY WITH EIGHT OR MORE YEARS OF CONTINUOUS ACTIVE DUTY IMMEDIATELY PRECEDING DISCHARGE, MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION PROVIDED THE TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. THE ADMINISTRATIVE OFFICE REPORTS THAT YOU HAD MORE THAN EIGHT YEARS OF CONTINUOUS ACTIVE DUTY ON THE DATE OF YOUR DISCHARGE.

THE INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE, AT THE TIME OF TRAVEL THERETO BY A MEMBER, IS A NECESSARY CONDITION PRECEDENT TO THE RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES TO SUCH PLACE. THE BEST EVIDENCE, OF COURSE, THAT THE TRAVEL FOR WHICH A MEMBER SEEKS REIMBURSEMENT WAS TO A PLACE SELECTED BY HIM AS HOME IS HIS CONTINUED RESIDENCE AT THAT PLACE. WHERE, HOWEVER, A MEMBER DOES NOT CLEARLY ESTABLISH HIS INTENTION BY TAKING UP AN EXTENDED RESIDENCE AT THE PLACE TO WHICH MILEAGE IS CLAIMED BUT GOES ON TO SOME OTHER PLACE, HIS INTENT NECESSARILY MUST BE INFERRED FROM THE SURROUNDING CIRCUMSTANCES. IN CASES IN WHICH THE MEMBER'S STAY IN A PARTICULAR PLACE DOES NOT EXCEED THE SPAN OF AN ORDINARY VISIT OR VACATION, THE CONCLUSION APPEARS REQUIRED, IN THE ABSENCE OF OTHER CONVINCING EVIDENCE TO THE CONTRARY, THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME.

THE RECORD SHOWS THAT YOU LIVED AT 7 LINDA STREET, PENSACOLA, FLORIDA, WHILE STILL ON ACTIVE DUTY, WHICH WAS TERMINATED BY YOUR DISCHARGE EFFECTIVE JUNE 30, 1956; THAT YOU LIVED THERE UNTIL NOVEMBER 24, 1956, WHEN YOU, ACCOMPANIED BY YOUR SON AND DAUGHTER AGE SIX AND EIGHT YEARS, RESPECTIVELY, COMMENCED TRAVEL TO HARDY, NEBRASKA; THAT YOUR WIFE REMAINED IN PENSACOLA; THAT AFTER A BRIEF INTERVAL YOU RETURNED TO 7 LINDA STREET, PENSACOLA, AND THAT YOU ARE PRESENTLY LIVING THERE. THESE CIRCUMSTANCES MAY NOT BE ACCEPTED AS ESTABLISHING ANYTHING OTHER THAN THAT THE TRAVEL TO HARDY WAS FOR THE PURPOSE OF VISITING OR FOR BUSINESS REASONS. FURTHER, THE PROVISION IN THE STATUTE CITED ABOVE AUTHORIZING RETIRED AND CERTAIN OTHER MILITARY PERSONNEL TO SELECT A HOME UPON SEPARATION FROM ACTIVE SERVICE WAS ENACTED ON THE PRESUMPTION THAT AFTER SERVICE FOR SO PROLONGED A PERIOD SUCH PERSONNEL NO LONGER HAVE A CIVILIAN HOME TO WHICH TO RETURN. TRAVEL BY SUCH A MEMBER, THEREFORE, TO HIS HOME OF RECORD, THAT IS, THE PLACE FROM WHICH HE ENTERED THE SERVICE, IN THE ABSENCE OF OTHER EVIDENCE OF AN INTENT ON HIS PART TO REESTABLISH HIS HOME THERE, DOES NOT OPERATE TO ENTITLE HIM TO MILEAGE AND TRANSPORTATION ALLOWANCES TO THAT PLACE. HENCE, NO LEGAL BASIS IS FOUND FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 16, 1958, DENYING YOUR CLAIM, IS SUSTAINED.