B-154381, SEP. 21, 1964

B-154381: Sep 21, 1964

Additional Materials:

Contact:

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

 

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

TO CAPTAIN PETER THOMAS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 30. UPON YOUR APPLICATION YOU WERE RETIRED IN THE GRADE OF CAPTAIN AFTER MORE THAN 21 YEARS OF ACTIVE FEDERAL SERVICE. YOU WERE DISCHARGED FROM YOUR ENLISTED STATUS ON JUNE 30. WAS DISALLOWED BY SETTLEMENT DATED MAY 26. SUCH TRAVEL WAS CONSIDERED AS HAVING BEEN PERFORMED FOR THE PURPOSE OF A VISIT RATHER THAN AS TRAVEL TO A HOME OF SELECTION WITH THE INTENT TO ESTABLISH A PERMANENT RESIDENCE THERE. IN YOUR PRESENT LETTER YOU INDICATE THAT YOU DID NOT REMAIN AT SEASIDE BECAUSE UNFAVORABLE EMPLOYMENT POSSIBILITIES THERE WERE SUCH THAT YOU ENDEAVORED TO RECOUP FINANCIALLY A SITUATION WHICH. YOU CONTEND THAT SEASIDE WAS YOUR HOME OF SELECTION SINCE YOU PURCHASED A HOME THERE IN 1958 AND YOUR WIFE AND CHILDREN HAVE BEEN IN CONTINUOUS RESIDENCE THERE SINCE THAT TIME.

B-154381, SEP. 21, 1964

TO CAPTAIN PETER THOMAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 30, 1964, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED MAY 26, 1964, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO SEASIDE, CALIFORNIA, INCIDENT TO YOUR RETIREMENT FROM ARMY SERVICE.

BY SPECIAL ORDERS NO. 146 DATED JUNE 19, 1962, ISSUED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., UPON YOUR APPLICATION YOU WERE RETIRED IN THE GRADE OF CAPTAIN AFTER MORE THAN 21 YEARS OF ACTIVE FEDERAL SERVICE. YOU WERE DISCHARGED FROM YOUR ENLISTED STATUS ON JUNE 30, 1962, FOR THE CONVENIENCE OF THE GOVERNMENT AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST ON JULY 1, 1962. YOU DEPARTED FROM RHEIN MAIN AIR FORCE BASE, GERMANY, DECEMBER 16, 1962, AND ARRIVED AT SEASIDE, CALIFORNIA, ON DECEMBER 24, 1962. YOU LEFT THERE ON DECEMBER 29, 1962, AND RETURNED TO GERMANY ON JUNE 25, 1963.

YOUR CLAIM FOR MILEAGE FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO SEASIDE, CALIFORNIA, WAS DISALLOWED BY SETTLEMENT DATED MAY 26, 1964, FOR THE REASON THAT SINCE YOU REMAINED AT SEASIDE, CALIFORNIA, ONLY 6 DAYS, SUCH TRAVEL WAS CONSIDERED AS HAVING BEEN PERFORMED FOR THE PURPOSE OF A VISIT RATHER THAN AS TRAVEL TO A HOME OF SELECTION WITH THE INTENT TO ESTABLISH A PERMANENT RESIDENCE THERE. IN YOUR PRESENT LETTER YOU INDICATE THAT YOU DID NOT REMAIN AT SEASIDE BECAUSE UNFAVORABLE EMPLOYMENT POSSIBILITIES THERE WERE SUCH THAT YOU ENDEAVORED TO RECOUP FINANCIALLY A SITUATION WHICH, YOU STATE, HAD DEVASTATED YOUR FAMILY UNITY. YOU CONTEND THAT SEASIDE WAS YOUR HOME OF SELECTION SINCE YOU PURCHASED A HOME THERE IN 1958 AND YOUR WIFE AND CHILDREN HAVE BEEN IN CONTINUOUS RESIDENCE THERE SINCE THAT TIME.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION.

THE UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED ARE PROMULGATED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150-3 (B) PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED IN THESE REGULATIONS, MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH 4158-1A PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY.

THE PURPOSE OF THE STATUTE AND REGULATIONS IS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR A MEMBER, HIS DEPENDENTS, AND HOUSEHOLD EFFECTS, TO THE PLACE WHERE HE GOESTO RESIDE FOLLOWING RETIREMENT, AND UNTIL SUCH A PLACE HAS BEEN SELECTED AND TRAVEL TO IT FOR THAT PURPOSE HAS BEEN PERFORMED, NO RIGHT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES ACCRUES. THE INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE, AT THE TIME OF TRAVEL THERETO BY A MEMBER, IS A NECESSARY CONDITION PRECEDENT TO THE RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES TO SUCH PLACE. THE BEST EVIDENCE, OF COURSE, THAT THE TRAVEL FOR WHICH A MEMBER SEEKS REIMBURSEMENT WAS TO A PLACE SELECTED BY HIM AS HIS HOME, IS HIS CONTINUED RESIDENCE AT THAT PLACE. WHEN, HOWEVER, A MEMBER DOES NOT CLEARLY ESTABLISH HIS INTENTION BY TAKING UP AN EXTENDED RESIDENCE AT THE PLACE TO WHICH MILEAGE IS CLAIMED BUT GOES ON TO SOME OTHER PLACE, HIS INTENT NECESSARILY MUST BE INFERRED FROM THE SURROUNDING CIRCUMSTANCES. IN CASES IN WHICH THE MEMBER'S STAY IN A PARTICULAR PLACE DOES NOT EXCEED THE SPAN OF AN ORDINARY VISIT, VACATION OR BUSINESS TRIP, THE CONCLUSION, IN THE ABSENCE OF OTHER CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, IS THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS. SEE 36 COMP. GEN. 774; B-142264, MAY 10, 1960; B-151484, JUNE 6, 1963, COPIES ENCLOSED.

IN REPLY TO AN INQUIRY FROM THE ARMY FINANCE CENTER AS TO THE REASON FOR YOUR REQUEST THAT YOUR CHECK COVERING YOUR TRAVEL TO SEASIDE BE MAILED TO YOU AT ST. LOUIS, MISSOURI, YOU STATED IN LETTER DATED JULY 27, 1963, THAT:

"A PROLONGED LEGAL SEPARATION EFFECTIVE LATTER PART JANUARY 1960 WHICH MY WIFE INSTITUTED UPON MY EMERGENCY LEAVE RETURN TO Z1 AT THE TIME OF MY MOTHER'S DEATH IN JANUARY 1960 AND WHICH I ATTEMPTED TO RESOLVE UPON MY Z1 RETURN DECEMBER 1962 HAS NOT BEEN RESOLVED; THEREFORE MY PARTICULAR REQUEST THAT CHECK BE MAILED ME AT ST. LOUIS, MISSOURI ADDRESS WHERE MY FATHER RESIDES TO INSURE PROMPT FORWARDING TO ME AT MY PRESENT ADDRESS INDICATED BELOW.'

THUS, IT APPEARS THAT THE TRAVEL WAS PERFORMED FOR THE PURPOSE OF RESOLVING YOUR MARITAL DIFFICULTIES RATHER THAN FOR THE PURPOSE OF RETURNING TO YOUR HOME AND FAMILY FOR PERMANENT RESIDENCE, AND THAT YOU INTENDED TO RETURN TO GERMANY. ON THAT RECORD WE MAY NOT CONCLUDE THAT THE TRAVEL WAS TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE APPLICABLE REGULATIONS.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF MAY 26, 1964, IS SUSTAINED.