B-141639, JAN. 25, 1960

B-141639: Jan 25, 1960

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1. THE RECORD SHOWS THAT YOU WERE ORIGINALLY RETIRED ON JULY 31. YOU WERE RELEASED FROM ASSIGNMENT AND DUTY AT FORT SAM HOUSTON. THE ORDERS STATED THAT YOUR HOME OF RECORD WAS WASHINGTON. THAT YOU WERE ORDERED TO ACTIVE DUTY FROM OKINAWA. THAT YOUR PERMANENT MAILING ADDRESS WAS TAMPA. WERE PAID TRAVEL ALLOWANCE BETWEEN THOSE POINTS ON APRIL 2. THE REQUEST WAS REFUSED AND YOU HAD THE EFFECTS SHIPPED AT PERSONAL EXPENSE ON JUNE 19. IN YOUR PRESENT LETTER YOU STATE THAT YOUR PRIOR DUTY STATION WAS TAMPA. THAT YOU LEFT YOUR FAMILY THERE WHEN YOU WERE ORDERED TO TEXAS. THAT UPON REVERTING TO YOUR RETIRED STATUS YOU EITHER WERE TOLD YOU COULD BE PAID FOR TRAVEL TO TAMPA WITHOUT JEOPARDIZING YOUR RIGHT TO SELECT A HOME.

B-141639, JAN. 25, 1960

TO MASTER SERGEANT ALBERT L. FUSSELL, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1959, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 24, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM TAMPA TO GAINESVILLE, FLORIDA.

THE RECORD SHOWS THAT YOU WERE ORIGINALLY RETIRED ON JULY 31, 1952, AND RECALLED TO ACTIVE DUTY THE NEXT DAY. BY PARAGRAPH 24, SPECIAL ORDERS NO. 25, DATED FEBRUARY 5, 1957, YOU WERE RELEASED FROM ASSIGNMENT AND DUTY AT FORT SAM HOUSTON, TEXAS, AND RELIEVED FROM ACTIVE MILITARY SERVICE EFFECTIVE FEBRUARY 7, 1957, ON WHICH DATE YOU REVERTED TO YOUR RETIRED STATUS. THE ORDERS STATED THAT YOUR HOME OF RECORD WAS WASHINGTON, D.C.; THAT YOU WERE ORDERED TO ACTIVE DUTY FROM OKINAWA, AND THAT YOUR PERMANENT MAILING ADDRESS WAS TAMPA, FLORIDA. ON THE BASIS OF THOSE ORDERS YOU TRAVELED FROM FORT SAM HOUSTON, TEXAS, TO TAMPA, FLORIDA; SUBMITTED A CLAIM, AND WERE PAID TRAVEL ALLOWANCE BETWEEN THOSE POINTS ON APRIL 2, 1957. ON JUNE 13, 1957, YOU EXECUTED AN APPLICATION REQUESTING THE TRANSPORTATION OFFICER, MACDILL AIR FORCE BASE, FLORIDA, TO SHIP YOUR HOUSEHOLD EFFECTS FROM TAMPA TO GAINESVILLE, FLORIDA, AT GOVERNMENT EXPENSE. APPARENTLY, THE REQUEST WAS REFUSED AND YOU HAD THE EFFECTS SHIPPED AT PERSONAL EXPENSE ON JUNE 19, 1957. IN YOUR PRESENT LETTER YOU STATE THAT YOUR PRIOR DUTY STATION WAS TAMPA, FLORIDA; THAT YOU LEFT YOUR FAMILY THERE WHEN YOU WERE ORDERED TO TEXAS, AND THAT UPON REVERTING TO YOUR RETIRED STATUS YOU EITHER WERE TOLD YOU COULD BE PAID FOR TRAVEL TO TAMPA WITHOUT JEOPARDIZING YOUR RIGHT TO SELECT A HOME, OR YOU MISUNDERSTOOD WHAT WAS SAID. ALSO, YOU REQUEST THAT THE PAPERS OF YOUR CLAIM BE RETURNED TO YOU.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED WITH PAY MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION. SECTION 303 (C) PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS TO THE HOME SELECTED FOR ALLOWANCE PURPOSES UNDER (A) OF THIS SECTION.

PARAGRAPH 1150-3 (B), JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES THAT THE TERM "HOME SELECTION" AS USED IN THESE REGULATIONS, MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT UNDER THE CONDITIONS AUTHORIZED IN PARAGRAPH 4158-1A. THE LATTER PARAGRAPH PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. IT FURTHER PROVIDES THAT ONCE A HOME IS SELECTED AND TRAVEL THERETO IS PERFORMED, SUCH SELECTION IS IRREVOCABLE. SUBPARAGRAPH 3 OF THE SAME PARAGRAPH PROVIDES THAT A MEMBER WHO IS OTHERWISE ELIGIBLE TO SELECT A HOME UNDER THE PROVISIONS OF THIS PARAGRAPH BUT IS RECALLED TO ACTIVE DUTY PRIOR TO THE SELECTION OF A HOME AND PERFORMANCE OF TRAVEL THERETO, MAY, UPON TERMINATION OF ACTIVE DUTY UNDER HONORABLE CONDITIONS, SELECT A HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION PROVIDED THAT TRAVEL IS PERFORMED TO THE SELECTED HOME WITHIN ONE YEAR AFTER HIS RELEASE FROM ACTIVE DUTY. PARAGRAPH 8009-6E OF THOSE REGULATIONS PROVIDES FOR SHIPMENT OF HOUSEHOLD EFFECTS UNDER THE SAME CIRCUMSTANCES TO THE HOME SELECTED BY THE MEMBER FOR THE PURPOSE OF RECEIVING TRAVEL ALLOWANCES FOR HIS TRAVEL UNDER PARAGRAPH 4158. IT FURTHER PROVIDES THAT SHIPMENT OF HOUSEHOLD EFFECTS TO ANY PLACE OTHER THAN HOME OF SELECTION IS NOT AUTHORIZED.

SINCE YOU WERE PAID A TRAVEL ALLOWANCE FOR YOUR TRAVEL FROM YOUR LAST STATION TO TAMPA, FLORIDA, UPON TERMINATION OF SERVICE AND REVERSION TO RETIRED STATUS, SHIPMENT OF YOUR HOUSEHOLD GOODS FROM TAMPA TO ANOTHER CITY WAS NOT AUTHORIZED AT PUBLIC EXPENSE. FURTHER, IF AS INDICATED BY YOU, YOU CLAIMED AND RECEIVED THE TRAVEL ALLOWANCE BECAUSE YOU WERE MISINFORMED AS TO YOUR RIGHTS BY SERVICE PERSONNEL AT FORT SAM HOUSTON, SUCH FACT WOULD NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM, IT BEING WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF DUTY OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515, AND CASES THERE CITED.

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 24, 1959, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST THAT THE PAPERS BE RETURNED TO YOU, YOU ARE ADVISED THAT IT WILL BE NECESSARY TO RETAIN THESE PAPERS HERE SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENT DISALLOWING YOUR CLAIM WAS BASED, WHICH ACTION IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRNCH OF THE GOVERNMENT. 1 GAO MANUAL 3030.10.