B-154929, NOV. 2, 1964

B-154929, NOV. 2, 1964

TO MAJOR WILLIAM V. SMITH, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1964, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED JUNE 9, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL AND TRANSPORTATION OF DEFENDANT (WIFE) FROM FORT BLISS (EL PASO), TEXAS, TO WENATCHEE, WASHINGTON, DURING THE PERIOD SEPTEMBER 23 TO 28, 1963, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

BY SPECIAL ORDERS NO. 291 DATED NOVEMBER 24, 1961, YOU WERE RETIRED IN THE GRADE OF MAJOR, DISCHARGED FROM YOUR ENLISTED STATUS ON NOVEMBER 30, 1961, AND PLACED ON THE AUS RETIRED LIST ON DECEMBER 1, 1961. IN LETTER OF DECEMBER 14, 1962 WHILE YOU WERE STILL RESIDING IN EL PASO, TEXAS, YOU REQUESTED THE U.S. ARMY FINANCE CENTER TO GRANT YOU AN EXTENSION OF 6 MONTHS TO THE 1 YEAR AFTER TERMINATION OF ACTIVE DUTY IN WHICH YOU WERE REQUIRED TO TRAVEL TO A SELECTED HOME IN ORDER TO BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES. YOU STATED THAT THE REASON FOR REQUESTING THE EXTENSION WAS BECAUSE YOU WERE INJURED WHEN YOU FELL OUT OF A TREE ON SEPTEMBER 16, AND THE DOCTOR SAID YOU WOULD PROBABLY BE WELL ENOUGH TO TRAVEL BY DECEMBER 31, 1962. YOU RELATED IN THE LETTER OF DECEMBER 14, 1962, THAT YOU AND YOUR DEPENDENT MADE A TRIP IN THE SPRING OF 1962 TO SELECT A HOME; THAT A LOCALITY WAS FOUND BUT NO ADDRESS WAS ESTABLISHED; THAT YOU INTENDED TO SETTLE AT WENATCHEE, AND THAT YOUR PLAN HAD BEEN TO LEAVE EL PASO DURING OCTOBER 1962, IN ORDER TO HAVE A HOME LOCATED TO WHICH SHIPMENT COULD BE SENT DURING NOVEMBER 1962. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JUNE 9, 1964, FOR THE REASON THAT THE TRAVEL DURING SEPTEMBER 1963 TO WENATCHEE, WASHINGTON, WAS COMMENCED MORE THAN 1 YEAR AFTER YOUR RETIREMENT FROM THE SERVICE. IN YOUR LETTER OF JULY 27, 1964, YOU SAY THAT THE ACTUAL TRAVEL WAS ACCOMPLISHED BEFORE THE 1 YEAR LIMIT WHEN YOU MADE YOUR TRIP IN THE SPRING OF 1962.

SECTION 404 OF TITLE 37, U.S.C. PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED, MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED 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-LA PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY. ALSO, PARAGRAPH 7012-LA PROVIDES FOR DEPENDENTS' TRANSPORTATION UPON RETIREMENT IF TRAVEL IS PERFORMED TO THE HOME OF SELECTION WITHIN 1 YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY.

THE PURPOSE OF THE STATUTE AND REGULATIONS IS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR A MEMBER AND HIS DEPENDENTS TO THE PLACE WHERE HE GOES TO 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. SEE 36 COMP. GEN. 774.

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, OR RETURNS TO THE RESIDENCE FROM WHICH HE DEPARTED, 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.

THE RECORD INDICATES THAT YOU DID NOT TRAVEL TO WENATCHEE, WASHINGTON, IN THE SPRING OF 1962 FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AT THAT TIME. RATHER, IT WAS FOR THE PURPOSE OF VISITING VARIOUS PLACES WITH A VIEW TO SELECTING SOME AREA TO WHICH YOU WOULD RETURN AND ESTABLISH A HOME LATER IN THE YEAR. SINCE IT APPEARS THAT YOU AND YOUR DEPENDENT DID NOT TRAVEL TO WENATCHEE TO ESTABLISH A RESIDENCE UNTIL SEPTEMBER 1963, WHICH WAS MORE THAN ONE YEAR AFTER THE TERMINATION OF YOUR ACTIVE DUTY, THERE IS NO BASIS ON THE PRESENT RECORD TO ALLOW YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JUNE 9, 1964, IS SUSTAINED.