B-144348, FEB. 14, 1962

B-144348: Feb 14, 1962

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THE FACTS GIVING RISE TO YOUR CLAIM ARE AS FOLLOWS: UPON DISCHARGE FROM THE MILITARY SERVICE AT ORANGE. YOU SAY THAT THE PURPOSE OF THIS TRIP WAS FOR REST AND RELAXATION . - IMPLYING THAT IT WAS YOUR INTENT TO STAY FOR A SHORT WHILE AND THEN RETURN TO NEW ORLEANS. DURING THE FIRST 10 MONTHS IN HAWAII YOU SECURED EMPLOYMENT WITH TWO DIFFERENT PRIVATE FIRMS AND IN FEBRUARY 1948 YOU WERE EMPLOYED BY THE PEARL HARBOR NAVAL SHIPYARD. WAS DENIED BECAUSE THE CHIEF OF INDUSTRIAL RELATIONS DETERMINED THAT YOUR PLACE OF ACTUAL RESIDENCE WAS IN HAWAII AT THE TIME OF YOUR EMPLOYMENT BY THE SHIPYARD. NEW ORLEANS WOULD HAVE TO BE YOUR PLACE OF ACTUAL RESIDENCE. DISALLOWED YOUR CLAIM BECAUSE THE ADMINISTRATIVE OFFICE HAD DETERMINED THAT YOUR PLACE OF ACTUAL RESIDENCE AT THE TIME OF YOUR EMPLOYMENT WAS HONOLULU AS OPPOSED TO NEW ORLEANS.

B-144348, FEB. 14, 1962

TO MR. W. J. RIDDICK:

ON JANUARY 26, 1962, YOU ASKED US TO RECONSIDER OUR OFFICE SETTLEMENT OF JANUARY 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH TRAVEL PERFORMED BETWEEN HONOLULU, HAWAII AND NEW ORLEANS, LOUISIANA.

THE FACTS GIVING RISE TO YOUR CLAIM ARE AS FOLLOWS: UPON DISCHARGE FROM THE MILITARY SERVICE AT ORANGE, TEXAS, IN APRIL OF 1947 YOU TOOK A TRIP TO HAWAII. YOU SAY THAT THE PURPOSE OF THIS TRIP WAS FOR REST AND RELAXATION --- IMPLYING THAT IT WAS YOUR INTENT TO STAY FOR A SHORT WHILE AND THEN RETURN TO NEW ORLEANS, LOUISIANA, YOUR CLAIMED PLACE OF RESIDENCE. HOWEVER, DURING THE FIRST 10 MONTHS IN HAWAII YOU SECURED EMPLOYMENT WITH TWO DIFFERENT PRIVATE FIRMS AND IN FEBRUARY 1948 YOU WERE EMPLOYED BY THE PEARL HARBOR NAVAL SHIPYARD. BETWEEN MAY 9 AND JUNE 1, 1960, YOU TRAVELED BETWEEN HONOLULU AND NEW ORLEANS AND NOW YOU SEEK REIMBURSEMENT OF $553.08, THE COST OF SUCH TRAVEL. THAT AMOUNT, CLAIMED UNDER THE LAW CODIFIED AT 5 U.S.C. 73B-3, WAS DENIED BECAUSE THE CHIEF OF INDUSTRIAL RELATIONS DETERMINED THAT YOUR PLACE OF ACTUAL RESIDENCE WAS IN HAWAII AT THE TIME OF YOUR EMPLOYMENT BY THE SHIPYARD. AS A CONDITION TO PAYING THE AMOUNT CLAIMED UNDER 5 U.S.C. 73B-3, NEW ORLEANS WOULD HAVE TO BE YOUR PLACE OF ACTUAL RESIDENCE.

OUR SETTLEMENT OF JANUARY 13, 1961, DISALLOWED YOUR CLAIM BECAUSE THE ADMINISTRATIVE OFFICE HAD DETERMINED THAT YOUR PLACE OF ACTUAL RESIDENCE AT THE TIME OF YOUR EMPLOYMENT WAS HONOLULU AS OPPOSED TO NEW ORLEANS, AND BECAUSE THE EVIDENCE OF RECORD SUPPORTED SUCH DETERMINATION.

IN SUPPORT OF YOUR CLAIM, YOU HAVE QUOTED SECTION 4 OF THE HAWAIIAN ORGANIC ACT, 48 U.S.C. 494, WHICH SETS OUT THE CITIZENSHIP REQUIREMENTS FOR RESIDENTS OF HAWAII. YOU ARGUE THAT BY YOUR PRESENCE IN HAWAII FROM APRIL 1947 TO FEBRUARY 1948, A PERIOD OF 10 MONTHS, YOU DID NOT ESTABLISH A LEGAL RESIDENCE IN HAWAII BECAUSE THE CITED ACT REQUIRES A FULL YEAR OF RESIDENCE IN HAWAII IN ORDER TO QUALITY FOR CITIZENSHIP; ALSO, THAT ALTHOUGH YOUR LEGAL RESIDENCE WAS CHARLESTON, SOUTH CAROLINA, YOU CONSIDERED YOUR PERMANENT HOME AS NEW ORLEANS, LOUISIANA.

AS INDICATED IN 35 COMP. GEN. 244, THE LEGAL RESIDENCE OF AN EMPLOYEE MAY OR MAY NOT BE CONTROLLING IN A DETERMINATION OF ACTUAL RESIDENCE. THE WORD "RESIDENCE" HAS BEEN THE SUBJECT OF MANY COURT DECISIONS AND THOSE DECISIONS HAVE RESULTED IN MANY DISTINCTIONS IN APPLICATION. GENERALLY, THE COURTS HAVE HELD THAT RESIDENCE IS USED TO DENOTE SOMETHING MORE THAN PHYSICAL PRESENCE, IN WHICH EVENT INTENT IS MATERIAL. SEE 17-A AM.JUR.DOMICILE, SECTION 9. WE DIRECT YOUR ATTENTION TO THE CASE OF BAKER V. BAKER, ECCLES AND CO., 173 S.W. 109 (1915) AT PAGE 118, WHEREIN THE COURT RULED:

"* * * IT DOES NOT ALWAYS FOLLOW THAT THE PLACE OF ACTUAL RESIDENCE IS THE PLACE OF LEGAL RESIDENCE, AS A PERSON MAY HAVE AN ACTUAL RESIDENCE AT A PLACE WHERE HE IS ONLY TEMPORARILY LOCATED, AND WHERE HE HAS NO INTENTION OF REMAINING PERMANENTLY OR INDEFINITELY, WHILE HIS LEGAL RESIDENCE WILL BE AT THAT PLACE WHERE HE INTENDS TO REMAIN PERMANENTLY OR INDEFINITELY. * * *"

WE VIEW THE FACT THAT YOU TRAVELED TO HAWAII AS SOON AS YOU WERE RELEASED FROM ACTIVE NAVAL SERVICE AND OBTAINED IMMEDIATE EMPLOYMENT FOR A PERIOD OF 10 MONTHS PRIOR TO ENTERING THE FEDERAL CIVILIAN SERVICE, AS MORE OF AN INDICATION OF AN "ACTUAL PLACE OF RESIDENCE" THAN ANY OF THE OTHER FACTORS CITED BY YOU. THEREFORE, WE CONCLUDE THAT OUR PREVIOUS ACTION IN DISALLOWING YOUR CLAIM WAS CORRECT, AND MUST BE SUSTAINED.