B-137596, NOV 5, 1958

B-137596: Nov 5, 1958

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JR.: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. YOU WERE DETACHED FROM YOUR DUTY STATION AT THE NAVAL SUPPLY DEPOT. YOU WERE APPOINTED TO A CIVILIAN POSITION WITH THE UNITED STATES NAVAL SUPPLY DEPOT. FOR WHICH YOU CLAIMED AND WERE PAID MILEAGE IN THE SUM OF $194.34 ON THE BASIS THAT SAN DIEGO WAS THE PLACE SELECTED AS YOUR HOME INCIDENT TO YOUR TRANSFER TO THE U. EXCEPTION WAS TAKEN TO THIS PAYMENT FOR THE REASON THAT THE RECORD SHOWED YOU DID NOT TRAVEL TO SAN DIEGO FOR THE PURPOSE OF ESTABLISHING A RESIDENCE. THE SELECTION OF A HOME WITHIN THE MEANING OF THOSE PROVISIONS IS NOT ACCOMPLISHED MERELY BY ASSERTING THAT A CERTAIN PLACE HAS BECOME THE MEMBER'S HOME UPON SEPARATION FROM THE SERVICE AND A BRIEF VISIT TO THAT PLACE.

B-137596, NOV 5, 1958

PRECIS-UNAVAILABLE

LIEUTENANT (JG) LAWRENCE A. KELLY, JR.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1958, REQUESTING REVIEW OF SETTLEMENT DATED SEPTEMBER 2, 1958, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR YOUR TRAVEL FROM BAYONNE, NEW JERSEY, TO SAN DIEGO, CALIFORNIA, DURING THE PERIOD AUGUST 5 TO 6, 1955.

PURSUANT TO ORDERS DATED JUNE 4, 1954, YOU WERE DETACHED FROM YOUR DUTY STATION AT THE NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, ON OCTOBER 5, 1954, AND TRANSFERRED TO THE UNITED STATES NAVAL FLEET RESERVE. OCTOBER 6, 1954, YOU WERE APPOINTED TO A CIVILIAN POSITION WITH THE UNITED STATES NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY. ON AUGUST 5, 1955, WHILE STILL EMPLOYED IN THAT OFFICE, YOU TRAVELED BY AIR FROM BAYONNE, NEW JERSEY, TO SAN DIEGO, CALIFORNIA, FOR WHICH YOU CLAIMED AND WERE PAID MILEAGE IN THE SUM OF $194.34 ON THE BASIS THAT SAN DIEGO WAS THE PLACE SELECTED AS YOUR HOME INCIDENT TO YOUR TRANSFER TO THE U. S. NAVAL FLEET RESERVE. EXCEPTION WAS TAKEN TO THIS PAYMENT FOR THE REASON THAT THE RECORD SHOWED YOU DID NOT TRAVEL TO SAN DIEGO FOR THE PURPOSE OF ESTABLISHING A RESIDENCE. YOU REPAID THE SUM OF $194.34 TO THE GOVERNMENT AND NOW CLAIM REFUND OF THIS AMOUNT.

SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, AND JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO PROVIDE FOR TRAVEL ALLOWANCE FOR MEMBERS AND THEIR DEPENDENTS UPON PERMANENT CHANGE OF STATION INCLUDING FROM LAST STATION TO HOME UPON TRANSFER TO THE FLEET RESERVE. THE REGULATIONS FURTHER PROVIDE (PARAGRAPH 1150) THAT THE TERM "HOME" IN CONNECTION WITH TRANSFER TO THE FLEET RESERVE MEANS THE PLACE WHICH THE MEMBER SELECTS AS HIS HOME AND TO WHICH HE PERFORMS TRAVEL WITHIN ONE YEAR FROM THE DATE OF TRANSFER. THE SELECTION OF A HOME WITHIN THE MEANING OF THOSE PROVISIONS IS NOT ACCOMPLISHED MERELY BY ASSERTING THAT A CERTAIN PLACE HAS BECOME THE MEMBER'S HOME UPON SEPARATION FROM THE SERVICE AND A BRIEF VISIT TO THAT PLACE.

THE PURPOSE OF THE REGULATIONS IS TO AUTHORIZE TRANSPORTATION EXPENSES FOR A MEMBER AND HIS DEPENDENTS TO THE PLACE WHERE HE GOES TO RESIDE AND UNTIL A PLACE HAS BEEN SELECTED AND TRAVEL TO IT FOR THAT PURPOSE HAS BEEN PERFORMED, NO RIGHT TO SUCH TRANSPORTATION ACCRUES. THE RECORD DOES NOT SHOW THAT YOU TRAVELED TO SAN DIEGO TO RESIDE THERE. ON THE CONTRARY, IT APPEARS THAT YOU MERELY MADE A BRIEF VISIT TO SAN DIEGO. A REPORT OF YOUR ANNUAL LEAVE RECORD FURNISHED BY THE NAVAL SUPPLY DEPOT, BAYONNE, NEW JERSEY, SHOWS THAT DURING THE MONTH OF AUGUST 1955 YOU WERE ON ANNUAL LEAVE THE FIRST THREE DAYS OF THE WEEK FOLLOWING THE WEEKEND WHEN YOU ARRIVED IN SAN DIEGO, I.E., AUGUST 8 THROUGH 10, 1955, AND APPARENTLY YOU REPORTED FOR DUTY AT BAYONNE ON AUGUST 11, 1955. THE REPORT FURTHER SHOWS THAT YOU CONTINUED YOUR EMPLOYMENT IN BAYONNE UNTIL YOUR TRANSFER TO JACKSONVILLE, FLORIDA, IN NOVEMBER 1955. ALSO, RESPECTING A STATEMENT BY OUR AUDITORS THAT YOU APPARENTLY SOLD YOUR HOME IN SAN DIEGO WHILE THERE IN AUGUST 1955, IT IS NOTED THAT IN THE CLAIM WHICH YOU EXECUTED ON MARCH 19, 1958, YOU STATED "THE PROPERTY WAS NOT SOLD DURING MY VISIT AND WILL SO BE SUBSTANTIATED BY THE RECORDS ***." THUS, IT IS CLEAR THAT YOU DID NOT TRAVEL TO SAN DIEGO FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE, IT APPEARING FROM YOUR OWN STATEMENTS THAT YOU REGARDED THE TRIP AS A VISIT. HENCE, THE PAYMENT OF MILEAGE FOR SUCH TRAVEL IS NOT AUTHORIZED. EVIDENCE THAT YOU OWNED A HOME IN SAN DIEGO AND RESIDED THERE FROM MARCH 1947 TO JANUARY 1953, OR THAT YOU WERE CERTIFIED TO BE A VETERAN FROM CALIFORNIA WOULD NOT SATISFY THE ACTUAL RESIDENCE REQUIREMENT OF THE REGULATION AND WOULD SERVE NO USEFUL PURPOSE.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 2, 1958, WAS CORRECT AND IS SUSTAINED.