B-156923, JUN. 17, 1965

B-156923: Jun 17, 1965

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MELITO: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 23. YOU WERE RELIEVED FROM ASSIGNMENT AT ANTIGO AIR FORCE STATION. IT BEING SHOWN THAT YOU WERE A CAPTAIN IN THE AIR FORCE RESERVE. THAT YOU WERE ELIGIBLE FOR READJUSTMENT PAY UNDER PUBLIC LAW 676. YOUR HOME OF RECORD WAS SHOWN AS BERWICK. THOSE ORDERS WERE AMENDED BY PARAGRAPH 4 OF SPECIAL ORDER A -165. TO STATE THAT TRAVEL TO HOME OF SELECTION WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS. YOU RE-ENTERED THE AIR FORCE AS AN ENLISTED MAN AND WERE ASSIGNED TO DUTY AT PATRICK AIR FORCE BASE. YOUR CLAIM FOR MILEAGE FOR YOUR OWN TRAVEL AND FOR TRAVEL OF YOUR DEPENDENTS FROM ANTIGO TO EAU GALLIE WAS DENIED BY THE AIR FORCE AND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT WHILE.

B-156923, JUN. 17, 1965

TO STAFF SERGEANT ANGELO J. MELITO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1965, IN EFFECT REQUESTING REVIEW OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF FEBRUARY 26, 1965, WHICH DISALLOWED YOUR CLAIM FOR PERSONAL AND DEPENDENTS' TRAVEL FROM ANTIGO, WISCONSIN, TO EAU GALLIE, FLORIDA, DURING THE PERIOD SEPTEMBER 27 TO DECEMBER 9, 1963, INCIDENT TO YOUR INVOLUNTARY RELEASE FROM EXTENDED ACTIVE DUTY AS AN OFFICER AND RE-ENTRY IN THE SERVICE AS AN ENLISTED MAN.

THE RECORD SHOWS THAT BY PARAGRAPH 2, SPECIAL ORDER A-141, DATED SEPTEMBER 3, 1963, YOU WERE RELIEVED FROM ASSIGNMENT AT ANTIGO AIR FORCE STATION, WISCONSIN, AND FROM EXTENDED ACTIVE DUTY EFFECTIVE SEPTEMBER 28, 1963, IT BEING SHOWN THAT YOU WERE A CAPTAIN IN THE AIR FORCE RESERVE, THAT YOU WERE ELIGIBLE FOR READJUSTMENT PAY UNDER PUBLIC LAW 676, 84TH CONGRESS, 50 U.S.C. 1016, AND THAT YOU HAD COMPLETED MORE THAN 15 YEARS OF CREDITABLE SERVICE. YOUR HOME OF RECORD WAS SHOWN AS BERWICK, PENNSYLVANIA. THOSE ORDERS WERE AMENDED BY PARAGRAPH 4 OF SPECIAL ORDER A -165, DATED SEPTEMBER 12, 1963, TO STATE THAT TRAVEL TO HOME OF SELECTION WAS AUTHORIZED IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS. THE RECORD SHOWS THAT YOU AND YOUR DEPENDENTS DEPARTED ANTIGO, WISCONSIN, ON SEPTEMBER 27, 1963, AND ARRIVED AT SATELLITE BEACH, EAU GALLIE, FLORIDA, ON DECEMBER 9, 1963, HAVING STOPPED-OVER AT STATE LINE, PENNSYLVANIA, FROM OCTOBER 2 TO DECEMBER 6, 1963. ON DECEMBER 18, 1963, YOU RE-ENTERED THE AIR FORCE AS AN ENLISTED MAN AND WERE ASSIGNED TO DUTY AT PATRICK AIR FORCE BASE, FLORIDA. YOUR CLAIM FOR MILEAGE FOR YOUR OWN TRAVEL AND FOR TRAVEL OF YOUR DEPENDENTS FROM ANTIGO TO EAU GALLIE WAS DENIED BY THE AIR FORCE AND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT WHILE, UNDER THE JOINT TRAVEL REGULATIONS, YOU WERE ENTITLED TO TRAVEL ALLOWANCES FOR YOUR PERSONAL TRAVEL AND FOR TRAVEL OF YOUR DEPENDENTS FROM YOUR LAST STATION TO A HOME OF SELECTION, IT DOES NOT APPEAR THAT YOU ESTABLISHED A BONA FIDE RESIDENCE AT EAU GALLIE.

IN YOUR PRESENT LETTER YOU CONTEND THAT IF PAYMENT OF TRAVEL ALLOWANCE FOR YOURSELF AND DEPENDENTS IS NOT APPROVED TO EAU GALLIE, FLORIDA, AS TO HOME OF SELECTION, YOU SHOULD AT LEAST BE ENTITLED TO SUCH ALLOWANCES TO YOUR HOME OF RECORD UNDER PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS. ALSO, YOU CONTEND THAT IF YOUR CLAIM IS NOT ALLOWED UNDER PARAGRAPH 4158- 1A OF THOSE REGULATIONS IT SHOULD BE ALLOWED UNDER PARAGRAPH 4158-1B. FURTHER IS YOUR CONTENTION THAT YOU ESTABLISHED A TEMPORARY RESIDENCE AT STATE LINE, PENNSYLVANIA. IN ADDITION, YOU ASK TO WHAT HIGHER AGENCY MAY YOU APPEAL.

PARAGRAPH 4157-1A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO IS SEPARATED OR RELIEVED FROM ACTIVE DUTY IS ENTITLED TO MILEAGE FROM LAST STATION TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY AS HE MAY ELECT, BUT SPECIFICALLY EXCLUDES MEMBERS COVERED BY PARAGRAPH 4158-1A. PARAGRAPH 4158-1A PROVIDES THAT A MEMBER ON ACTIVE DUTY MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO WHEN HE IS RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY IMMEDIATELY FOLLOWING "AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY" (WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS). PARAGRAPH 4158-1B PROVIDES THAT A MEMBER WILL BE ENTITLED TO TRAVEL ALLOWANCES IN ACCORDANCE WITH PARAGRAPH 4157-1 WHEN HE HAS "LESS THAN 8 YEARS OF CONTINUOUS ACTIVE DUTY" AND IS INVOLUNTARILY RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY. SINCE THE RECORD SHOWS THAT YOU WERE RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY FOLLOWING 15 YEARS, 8 MONTHS AND 1 DAY OF SERVICE AND THERE IS NO INDICATION THAT AT LEAST 8 YEARS OF SUCH SERVICE WAS NOT CONTINUOUS SERVICE, IT SEEMS CLEAR YOUR TRAVEL RIGHTS UPON RELEASE TO INACTIVE DUTY ARE FOR DETERMINATION UNDER PARAGRAPH 4158-1A OF THE REGULATIONS.

THE QUESTION OF WHETHER THE ENTITLEMENT SET FORTH IN PARAGRAPH 4157 1A OF THE JOINT TRAVEL REGULATIONS MAY BE SUBSTITUTED FOR THOSE CONTAINED IN PARAGRAPH 4158-1A IN THE CASE OF A MEMBER WHO IS INVOLUNTARILY RELEASED TO ACTIVE DUTY WITH READJUSTMENT PAY IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY AND WHO PRIOR TO COMPLETE OF TRAVEL TO HOME OF SELECTION RE-ENTERS THE SERVICE AND IS ASSIGNED TO A STATION DIFFERENT FROM THE ONE AT WHICH HE PREVIOUSLY SERVED WAS FULLY CONSIDERED IN DECISION B-150187OF JANUARY 11, 1963, TO THE SECRETARY OF THE ARMY, PUBLISHED AT 42 COMP. GEN. 370, COPY ENCLOSED, IN WHICH IT WAS HELD IN PERTINENT PART, AS FOLLOWS:

"REGULARS IN SUCH CIRCUMSTANCES DO NOT HAVE THE RIGHT TO MAKE THREE ELECTIONS, THAT IS, TO RECEIVE ALLOWANCES TO THE HOME OF RECORD, THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, OR THE HOME OF SELECTION. SEE 30 COMP. GEN. 169, AND DECISION OF DECEMBER 4, 1954, B-121353. NOR DO WE FIND ANYTHING IN THE LEGISLATIVE HISTORY OF THE ACT TO INDICATE THAT IT WAS INTENDED TO GIVE SUCH MULTIPLE CHOICE TO RESERVISTS. PARAGRAPH 4158-1A OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO 37 U.S.C. 404, PROVIDES THAT A MEMBER WHO IS RELEASED TO INACTIVE DUTY IN SUCH CIRCUMSTANCES MAY SELECT A HOME AND RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES THERETO FROM HIS LAST DUTY STATION PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 4157-1A OF THE REGULATIONS, PROVIDING FOR MILEAGE TO HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, SPECIFICALLY EXCEPTS MEMBERS WHO COME UNDER PARAGRAPH 4158-1A (THOSE ENTITLED TO SELECT A HOME). THE REGULATIONS APPARENTLY ARE IN CONFORMITY WITH THE LEGISLATIVE INTENT. IN THE ABSENCE OF ANY EVIDENCE OF A LEGISLATIVE INTENTION TO AUTHORIZE PAYMENT TO THE HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY WHEN NO HOME IS SELECTED AND SINCE THE LAW AUTHORIZING PAYMENT PROVIDES THAT IT SHALL BE UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED WE FIND NO BASIS TO CONCLUDE THAT THE MEMBER IN THE CASE PRESENTED IS ENTITLED TO ALLOWANCES TO HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE TY.'

THAT DECISION FURTHER CONSIDERED WHETHER THE STATION TO WHICH THE MEMBER IS ASSIGNED FOR DUTY UPON RE-ENTRY IN THE SERVICE MAY BE CONSIDERED AS THE HOME OF SELECTION AND IT WAS HELD IN PART THAT:

"ALSO, BECAUSE OF THE TRANSITORY NATURE OF MILITARY SERVICE, THE STATION OR POST OF DUTY TO WHICH A MEMBER IS ORDERED IS NOT REGARDED AS HIS PERMANENT HOME AND, HENCE, A MEMBER'S HOME OR DOMICILE IS NOT CHANGED INCIDENT TO A CHANGE OF STATIONS. SINCE THE PURPOSE OF PERMITTING A MEMBER TO SELECT A HOME IS TO RETURN TO CIVIL LIFE AFTER TERMINATION OF HIS ACTIVE MILITARY STATUS, THERE WOULD BE NO AUTHORITY AFTER THE MEMBER HAD REENLISTED AND WHILE SERVING ON ACTIVE DUTY TO DESIGNATE THE PERMANENT STATION, TO WHICH HE IS ORDERED FOR THE PERFORMANCE OF MILITARY DUTY AND NOT FOR ANY PURPOSE OF ESTABLISHING HIS HOME AS A CIVILIAN, AS HIS SELECTED HOME FOR THE PURPOSE OF RECEIVING ALLOWANCES THERETO INCIDENT TO HIS RELEASE AS AN OFFICER.'

THUS, IT SEEMS CLEAR THAT, HAVING BEEN RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY AND APPARENTLY HAVING MORE THAN 8 YEARS' CONTINUOUS ACTIVE SERVICE YOU WERE NG ENTITLED UNDER THE REGULATIONS TO TRAVEL ALLOWANCES TO EITHER YOUR HOME OF RECORD OR YOUR TEMPORARY RESIDENCE AT STATE LINE, PENNSYLVANIA, BUT YOU WERE ENTITLED TO TRAVEL ALLOWANCES ONLY TO A PLACE SELECTED BY YOU WHERE YOU INTENDED TO ESTABLISH A BONA FIDE RESIDENCE AS A CIVILIAN. SINCE THE RECORD SHOWS THAT YOUR TRAVEL TO EAU GALLIE, FLORIDA, WAS FOLLOWED SHORTLY BY YOUR RE-ENTRY INTO THE SERVICE AND ASSIGNMENT TO DUTY AT PATRICK AIR FORCE BASE WITHOUT ESTABLISHING A BONA FIDE RESIDENCE PRIOR TO SUCH RE ENTRY, SUCH TRAVEL MAY NOT BE CONSIDERED AS TRAVEL TO A HOME OF SELECTION WITHIN THE MEANING OF THE REGULATIONS. NOR MAY YOUR VISIT AT STATE LINE, PENNSYLVANIA, ENROUTE TO FLORIDA BE CONSIDERED AS ESTABLISHING A RESIDENCE WITHIN THE MEANING OF THE REGULATIONS.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 26, 1965, WAS CORRECT AND IS SUSTAINED.

THE ACTION OF THIS OFFICE ON CLAIMS PRESENTED HERE FOR SETTLEMENT IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS HAS JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE UNITED STATES. SEE 28 U.S.C. 2501.