B-153843, MAY 4, 1964, 43 COMP. GEN. 715

B-153843, MAY 4, 1964, 43 COMP. GEN. 715

MILITARY PERSONNEL - RECORD CORRECTION - DISCHARGE CHANGE AS ENTITLEMENT TO PAY, ETC. A CORRECTION OF MILITARY RECORDS, PURSUANT TO 10 U.S.C. 1552, CHANGING THE STATUS OF AN ENLISTED MEMBER OF THE UNIFORMED SERVICES FROM DISCHARGED WITH SEVERANCE PAY FOR PHYSICAL DISABILITY TO PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST DOES NOT PERMIT THE MEASURING OF THE 1- YEAR PERIOD OF THE MEMBER'S ENTITLEMENT TO MILEAGE FOR PERSONAL TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO HOME OF SELECTION FROM THE DATE HE WAS NOTIFIED OF THE CORRECTION OF HIS RECORDS, PARAGRAPHS 4158-1A, 7012-1A AND 8260-1 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING TRAVEL AND TRANSPORTATION ALLOWANCES WHETHER A MEMBER IS RETIRED FOR PHYSICAL DISABILITY OR PLACED ON A TEMPORARY DISABILITY RETIRED LIST, THE RECORDS CORRECTION PROVIDED NO NEW OR ADDITIONAL BENEFIT TO TOLL THE RUNNING OF OR AFFECT THE MEASURING OF THE MEMBER'S 1-YEAR PERIOD OF ENTITLEMENT; HOWEVER, HAD HIS ENTITLEMENT AT TIME OF DISCHARGE BEEN TO A HOME OF RECORD, THE CORRECTION OF HIS MILITARY RECORDS WOULD HAVE PERMITTED HIM TO SELECT A HOME AND TO BE PAID TRAVEL AND TRANSPORTATION ALLOWANCES WITHIN 1 YEAR FROM THE DATE HE WAS NOTIFIED OF THE RECORD CORRECTION.

TO THE SECRETARY OF THE NAVY, MAY 4, 1964:

BY LETTER DATED APRIL 13, 1964, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED LETTER OF APRIL 10, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING AN ADVANCE DECISION AS TO WHETHER STAFF SERGEANT MELVIN READ, USMC, RETIRED, WHO WAS DISCHARGED WITH SEVERANCE PAY ON SEPTEMBER 28, 1960, WOULD BE ENTITLED TO MILEAGE FOR PERSONAL TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A HOME OF SELECTION INCIDENT TO A CORRECTION OF HIS MILITARY RECORDS IN 1964 TO SHOW THAT HE WAS RETIRED FOR PHYSICAL DISABILITY. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 64-11.

IN HIS LETTER THE UNDER SECRETARY STATES THAT SERGEANT READ WAS DISCHARGED WITH SEVERANCE PAY ON SEPTEMBER 28, 1960, BY REASON OF PHYSICAL DISABILITY AFTER 8 YEARS AND 4 DAYS OF SERVICE. HE ALSO STATES THAT UNDER PARAGRAPHS 4158-1A, 7012-1A AND 8260-1 OF THE JOINT TRAVEL REGULATIONS THE MEMBER WAS THEN ENTITLED TO MILEAGE FOR PERSONAL TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO A HOME OF SELECTION INCIDENT TO SUCH DISCHARGE. HOWEVER, HE SAYS SERGEANT READ DID NOT AVAIL HIMSELF OF HIS ENTITLEMENT UNDER THESE REGULATIONS. THE UNDER SECRETARY STATES FURTHER THAT SINCE SERGEANT READ DID NOT MOVE TO ANOTHER LOCATION AND ESTABLISH A HOME THERE WITHIN THE 1-YEAR PERIOD SUBSEQUENT TO THE TERMINATION OF HIS ACTIVE DUTY, SEPTEMBER 28, 1960, AND SINCE THE EXTENSION OF THE 1-YEAR LIMITATION BECAUSE OF PROLONGED HOSPITALIZATION OR MEDICAL TREATMENT AS PROVIDED IN THE JOINT TRAVEL REGULATIONS DOES NOT APPEAR TO BE APPLICABLE, DOUBT EXISTS THAT THE CORRECTION OF RECORDS FROM ONE STATUS TO ANOTHER, BOTH OF WHICH PROVIDE FOR MOVEMENT TO A SELECTED HOME, SERVES TO EXTEND THE PERIOD OF ENTITLEMENT TO TRAVEL TO A SELECTED HOME. HE THEREFORE REQUESTS A DECISION ON EACH OF THE FOLLOWING QUESTIONS:

1. MAY S/SGT READ, UNDER THE CONDITIONS ENUMERATED ABOVE, BE PERMITTED TRAVEL AND TRANSPORTATION ENTITLEMENTS UNDER PARS. 4158-1A, 7012-1A, AND 8260-1. JOINT TRAVEL REGULATIONS, MEASURING THE "ONE YEAR PERIOD" FROM THE DATE HE WAS NOTIFIED OF THE CORRECTION OF HIS RECORDS?

2. WOULD YOUR REPLY BE DIFFERENT IN THE EVENT THAT HIS ENTITLEMENT ON DATE OF ORIGINAL DISCHARGE WAS TO A HOME OF RECORD? IF AFFIRMATIVE, AN EXPLANATION OF THE DIFFERENCE IS ALSO REQUESTED.

BY LETTER OF MARCH 24, 1964, REPRESENTATIVE HOWARD W. SMITH TRANSMITTED A LETTER FROM SERGEANT READ, RELATIVE TO HIS CLAIM FOR TRAVEL AND TRANSPORTATION ALLOWANCES, TOGETHER WITH COPIES OF LETTERS TO THE MEMBER FROM THE BOARD FOR CORRECTION OF NAVAL RECORDS, DATED FEBRUARY 27, 1964, AND FROM THE COMMANDANT OF THE MARINE CORPS DATED MARCH 11, 1964, WHICH NOTIFIED THE MEMBER THAT HIS NAVAL RECORD HAD BEEN CORRECTED EFFECTIVE FEBRUARY 27, 1964, TO SHOW THAT HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AS OF SEPTEMBER 29, 1960, INSTEAD OF HIS BEING DISCHARGED WITH SEVERANCE PAY ON SEPTEMBER 28, 1960, BY REASON OF PHYSICAL DISABILITY.

UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF A MILITARY DEPARTMENT, ACTING THROUGH A BOARD, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUBPARAGRAPH (C) THEREOF PROVIDES IN PERTINENT PART THAT THE DEPARTMENT CONCERNED MAY PAY FROM APPLICABLE CURRENT APPROPRIATIONS A CLAIM FOR LOSS OF PAY, ALLOWANCES, COMPENSATION, EMOLUMENTS OR OTHER PECUNIARY BENEFITS IF, AS A RESULT OF CORRECTING A RECORD, THE AMOUNT IS FOUND TO BE DUE THE CLAIMANT ON ACCOUNT OF HIS SERVICE IN THE ARMY, NAVY, AIR FORCE, MARINE CORPS OR COAST GUARD, AS THE CASE MAY BE. SECTIONS 404 (C) AND 406 (G) OF TITLE 37 OF THE U.S.C. PROVIDE IN PERTINENT PART THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO IS RETIRED FOR PHYSICAL DISABILITY, OR PLACED ON THE TEMPORARY DISABILITY LIST, OR, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS, IS DISCHARGED WITH SEVERANCE PAY, MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED IN SECTION 404 (A) AND ALSO IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME SELECTED UNDER 37 U.S.C. 404 (C). SIMILAR PROVISIONS WERE FORMERLY CONTAINED IN 37 U.S.C. 253, WHICH WAS IN EFFECT ON SEPTEMBER 28, 1960, WHEN THE MEMBER WAS DISCHARGED. PARAGRAPHS 4158-1A, 7012-1A AND 8260-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C. 404 AND 406, PROVIDE IN PERTINENT PART THAT A MEMBER MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCE AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS THERETO, WHEN HE IS RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (WITHOUT REGARD TO LENGTH OF SERVICE) OR, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY (WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS), IS DISCHARGED WITH SEVERANCE PAY. EXCEPT WHEN SUCH MEMBER WAS UNDERGOING HOSPITALIZATION OR MEDICAL TREATMENT AT GOVERNMENT EXPENSE ON THE DATE OF TERMINATION OF ACTIVE DUTY THE TRAVEL OF THE MEMBER AND TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS MUST BE COMPLETED WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPHS 4158-2, 7012-2 AND 8260-4 OF THE REGULATIONS PROVIDE THAT WHERE A MEMBER IS UNDERGOING SUCH HOSPITALIZATION OR MEDICAL TREATMENT ON THE DATE OF TERMINATION OF ACTIVE DUTY HE MAY SELECT A HOME, TRAVEL THERETO, AND TRANSPORT HIS DEPENDENTS AND HOUSEHOLD GOODS TO THE SELECTED PLACE WITHIN 1 YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR TERMINATION OF MEDICAL TREATMENT OR 2 YEARS AFTER DATE OF TERMINATION OF ACTIVE DUTY, WHICHEVER IS EARLIER. FURTHER EXTENSION OF THIS TIME LIMIT MAY BE APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE.

IT IS WELL SETTLED THAT A MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY RECORD IS CORRECTED PURSUANT TO 10 U.S.C. 1552 BECOMES ENTITLED UNDER SUBSECTION (C) THEREOF TO PAY, ALLOWANCES OR OTHER BENEFITS WHICH ARE DUE ON THE BASIS OF THE FACTS AS SHOWN IN THE CORRECTION. THE MEMBER'S RIGHTS ARE DETERMINED UNDER APPLICABLE LAW AND REGULATIONS IN THE SAME MANNER AS IF HIS ORIGINAL RECORDS HAD SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS. SEE 40 COMP. GEN. 502-504 AND B-150999, DATED APRIL 16, 1963, 42 COMP. GEN. 582. IN THIS CASE, HAD THE ORIGINAL RECORDS SHOWN THE INFORMATION CONTAINED IN THE CORRECTED RECORDS, SERGEANT READ WOULD HAVE BEEN ENTITLED ON SEPTEMBER 28, 1960, TO SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES FOR HIS TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS THERETO. HOWEVER, THE MEMBER HAD THIS ENTITLEMENT PRIOR TO THE CORRECTION OF HIS RECORDS BY VIRTUE OF HIS DISCHARGE ON SEPTEMBER 28, 1960, WITH SEVERANCE PAY, SINCE HE HAD OVER 8 YEARS' CONTINUOUS ACTIVE SERVICE AT THAT TIME. THEREFORE, THE CORRECTION OF THE MEMBER'S RECORDS ON FEBRUARY 27, 1964, PROVIDED NO NEW OR ADDITIONAL BENEFITS WITH RESPECT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES THAT HE DID NOT HAVE ON SEPTEMBER 28, 1960, AND CONSEQUENTLY IT DID NOT TOLL THE RUNNING OF, OR OTHERWISE AFFECT THE MEASURING OF, THE "ONE-YEAR PERIOD" FROM SEPTEMBER 28, 1960, THE DATE HIS ACTIVE DUTY STATUS WAS TERMINATED. SEE HAISLIP, ET AL. V. UNITED STATES, 152 CT.CL. 339. THE UNDER SECRETARY INDICATES THAT HE DOES NOT COME WITHIN THE PROVISIONS OF THE REGULATIONS WITH RESPECT TO AN EXTENSION OF THE 1-YEAR LIMITATION BECAUSE OF PROLONGED HOSPITALIZATION OR MEDICAL TREATMENT. THEREFORE, SINCE SERGEANT READ DID NOT SELECT HIS HOME, TRAVEL THERETO, AND MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO SUCH SELECTED HOME WITHIN 1 YEAR FROM SEPTEMBER 28, 1960, THERE IS NO AUTHORITY FOR PAYMENT OF MILEAGE FOR PERSONAL TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE MOVEMENT OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO A SELECTED PLACE INCIDENT TO THE CORRECTION OF HIS RECORDS. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE SECOND QUESTION, IF SERGEANT READ'S ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES ON DATE OF ORIGINAL DISCHARGE HAD BEEN TO A HOME OF RECORD RATHER THAN A HOME OF SELECTION THEN, FOR THE REASONS STATED ABOVE, THE CORRECTED RECORD WOULD HAVE ENTITLED THE MEMBER TO SELECT HIS HOME AND HE WOULD HAVE BEEN ENTITLED TO MILEAGE FOR PERSONAL TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE MOVEMENT OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME OF SELECTION WITHIN 1 YEAR FROM THE DATE HE WAS NOTIFIED OF THE CORRECTION OF HIS RECORDS, A RIGHT WHICH THE QUESTION ASSUMES HE DID NOT HAVE AT THE DATE OF ORIGINAL DISCHARGE. ANY AMOUNT PAID FOR TRAVEL AND TRANSPORTATION TO THE HOME OF RECORD WOULD BE FOR DEDUCTION FROM THE AMOUNT OTHERWISE DUE INCIDENT TO THE SELECTION OF A HOME.