B-136559, AUG 20, 1958

B-136559: Aug 20, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HAVE BEEN FORWARDED HERE FOR CONSIDERATION. THE EXPENSES NOW CLAIMED WERE DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 30. YOU WERE RELIEVED FROM ACTIVE MILITARY DUTY WITH DIRECTIONS TO PROCEED TO YOUR HOME OF RECORD AND REVERT TO AN INACTIVE STATUS NOT BY REASON OF PHYSICAL DISABILITY. THE RECORD SHOWS THAT YOUR HOME OF RECORD AT THE TIME YOU ENTERED ON ACTIVE DUTY WAS WEATHERFORD. THAT FOLLOWING YOUR RELEASE FROM ACTIVE DUTY YOU WERE PAID MILEAGE AS PRESCRIBED BY LAW FOR THE OFFICIAL DISTANCE BETWEEN FORT HAMILTON AND WEATHERFORD. IT IS ALSO SHOWN THAT. YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF COLONEL ON JANUARY 31. THAT YOU HAVE DRAWN RETIRED PAY SINCE FEBRUARY 1.

B-136559, AUG 20, 1958

PRECIS-UNAVAILABLE

COLONEL JAMES C. BARNETT, A.U.S., RETIRED:

YOUR LETTERS OF APRIL 12 AND 28, 1958 (WITH ENCLOSURES), ADDRESSED TO THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, CONCERNING ADDITIONAL REIMBURSEMENT BELIEVED TO BE DUE YOU FOR TRAVEL PERFORMED BY YOURSELF AND WIFE FOLLOWING THE RECEIPT OF ORDERS WHICH RELIEVED YOU FROM ACTIVE DUTY AS A COLONEL IN THE UNITED STATES ARMY RESERVE, HAVE BEEN FORWARDED HERE FOR CONSIDERATION. THE EXPENSES NOW CLAIMED WERE DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JULY 30, 1956, FOR THE REASONS THEREIN STATED.

BY SPECIAL ORDERS NO. 96, HEADQUARTERS, FORT HAMILTON, NEW YORK, DATED APRIL 25, 1955, YOU WERE RELIEVED FROM ACTIVE MILITARY DUTY WITH DIRECTIONS TO PROCEED TO YOUR HOME OF RECORD AND REVERT TO AN INACTIVE STATUS NOT BY REASON OF PHYSICAL DISABILITY. THE RECORD SHOWS THAT YOUR HOME OF RECORD AT THE TIME YOU ENTERED ON ACTIVE DUTY WAS WEATHERFORD, OKLAHOMA, AND THAT FOLLOWING YOUR RELEASE FROM ACTIVE DUTY YOU WERE PAID MILEAGE AS PRESCRIBED BY LAW FOR THE OFFICIAL DISTANCE BETWEEN FORT HAMILTON AND WEATHERFORD. IT IS ALSO SHOWN THAT, HAVING BECOME ELIGIBLE FOR RETIREMENT BY REASON OF AGE, YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF COLONEL ON JANUARY 31, 1956, AND THAT YOU HAVE DRAWN RETIRED PAY SINCE FEBRUARY 1, 1956.

ALTHOUGH YOU AGREE THAT YOU WERE A RESIDENT OF WEATHERFORD AT THE TIME YOU ENTERED ON ACTIVE DUTY, YOU CONTEND THAT AS A MEMBER OF A RESERVE COMPONENT WHO HAD COMPLETED MORE THAN EIGHT YEARS OF ACTIVE DUTY AT THE TIME YOU WERE INVOLUNTARILY RELEASED FROM THE SERVICE, YOU ARE ENTITLED TO ADDITIONAL TRAVEL AND TRANSPORTATION ALLOWANCES REPRESENTING THE DIFFERENCE BETWEEN THE MILEAGE RECEIVED AND THAT WHICH WOULD BE DUE IF COMPUTED ON THE BASIS OF THE TRAVEL ACTUALLY PERFORMED BY YOU AND YOUR WIFE FROM FORT HAMILTON TO SANTA ANA, THE PLACE SELECTED TO BE YOUR HOME FOLLOWING YOUR RELEASE FROM ACTIVE DUTY. YOU SPECIFICALLY REFER TO AN ARTICLE APPEARING IN A RECENT PUBLICATION WHICH YOU STATE QUOTED OUR DECISION TO THE SECRETARY OF THE ARMY DATED NOVEMBER 22, 1957, B-133779 (37 COMP. GEN. 354), AS SUPPORTING THE PAYMENT OF THE ADDITIONAL MILEAGE CLAIMED.

THE ACT OF AUGUST 11, 1955, 69 STAT. 691, EFFECTIVE APRIL 1, 1951, AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, TO PROVIDE THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO

"(1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST; OR

"(2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS);

MAY SELECT HIS HOME FOR THE PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SUBSECTION."

PARAGRAPH 1150-3(B) OF THE JOINT TRAVEL REGULATIONS PRESENTLY IN EFFECT PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED THEREIN, MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT (INCLUDING TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE), DISCHARGE WITH SEVERANCE PAY, OR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST UNDER CONDITIONS AUTHORIZED IN PARAGRAPH 4158 1A. THE LATTER PARAGRAPH PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED WITH PAY, OR IS DISCHARGED WITH SEVERANCE PAY WITH EIGHT OR MORE YEARS OF CONTINUOUS ACTIVE DUTY IMMEDIATELY PROCEEDING SUCH RETIREMENT OR DISCHARGE, MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED THAT TRAVEL TO THE SELECTED HOME IS COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY.

SINCE YOUR RETIREMENT FOR REASONS OTHER THAN PHYSICAL DISABILITY ON JANUARY 31, 1956, OCCURRED APPROXIMATELY NINE MONTHS AFTER YOU WERE RELEASED FROM ACTIVE DUTY AND NOT AT THE TIME OF YOUR RELEASE "IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY," NEITHER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, SUPRA, NOR THE CITED REGULATIONS, AUTHORIZE PAYMENT OF ADDITIONAL COMPENSATION FOR THE TRAVEL PERFORMED TO SANTA ANA.

IN OUR DECISION DATED NOVEMBER 22, 1957, B-133779 (37 COMP. GEN. 354), IT WAS HELD THAT A RESERVE OFFICER ELIGIBLE FOR RETIREMENT UNDER TITLE III OF THE ACT OF JUNE 29, 1948, (PUBLIC LAW 810), 62 STAT. 1087, WHO IS SEPARATED FROM THE SERVICE FOLLOWING NOT LESS THAN EIGHT YEARS OF CONTINUOUS ACTIVE DUTY, BUT WHO IS NOT RETIRED UNTIL THE END OF THE PARTICULAR MONTH IN WHICH SUCH SEPARATION OCCURS - BECAUSE OF THE REQUIREMENTS OF THE UNIFORMED RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, THAT ALL RETIREMENTS AUTHORIZED BY LAW FOR FEDERAL PERSONNEL, INCLUDING MILITARY PERSONNEL, SHALL BE EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE - MAY BE CONSIDERED AS HAVING BEEN RETIRED IMMEDIATELY FOLLOWING EIGHT YEARS OF CONTINUOUS ACTIVE SERVICE. AS INDICATED ABOVE, THESE WERE NOT THE CIRCUMSTANCES IN YOUR CASE. HENCE, THE DECISION CITED BY YOU AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JULY 30, 1956, MUST BE AND IS SUSTAINED.