B-162670, NOV. 16, 1967

B-162670: Nov 16, 1967

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OFFICER WHO ON RETIREMENT TRAVELED TO A SELECTED RESIDENCE BUT DID NOT STAY AT SUCH RESIDENCE BECAUSE OF LITIGATION INVOLVING A DIVORCED WIFE MAY BE REGARDED AS HAVING A BONA FIDE INTENT TO SELECT THE PLACE OF THE HOME AS A PERMANENT RESIDENCE NOTWITHSTANDING THAT HE ONLY REMAINED THERE FOR A SHORT TIME AND THEREFOR A TRAVEL ALLOWANCE IS PAYABLE. HOWEVER SINCE THE OFFICER'S MOTHER WAS NOT RESIDING WITH THE OFFICER AT HIS OVERSEAS STATION AT THE TIME OF RETIREMENT THE COST OF THE MOTHER'S TRAVEL MUST BE DISALLOWED IN ABSENCE OF APPROVAL AS REQUIRED IN PAR. RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21. YOU WERE DIRECTED TO BE AVAILABLE AUGUST 24. YOU SAY THAT UPON YOUR ARRIVAL IN SALINAS (WHERE YOUR HOUSEHOLD GOODS AND PERSONAL EFFECTS WERE SHIPPED FROM STORAGE) YOU FOUND THAT THE TENANTS STILL OCCUPIED YOUR HOME THERE AND THAT RATHER THAN START AN EVICTION ACTION YOU PLANNED TO TAKE AN APARTMENT IN SALINAS.

B-162670, NOV. 16, 1967

TRAVEL ALLOWANCES - MILITARY PERSONNEL - SHORT STAY AT SELECTED HOME DECISION TO RETIRED ARMY OFFICER ON REVIEW OF DISALLOWANCE OF CLAIM AUTHORIZING PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL TO SELECTED HOME BUT DENYING COST OF TRANSPORTATION OF DEPENDENT MOTHER. OFFICER WHO ON RETIREMENT TRAVELED TO A SELECTED RESIDENCE BUT DID NOT STAY AT SUCH RESIDENCE BECAUSE OF LITIGATION INVOLVING A DIVORCED WIFE MAY BE REGARDED AS HAVING A BONA FIDE INTENT TO SELECT THE PLACE OF THE HOME AS A PERMANENT RESIDENCE NOTWITHSTANDING THAT HE ONLY REMAINED THERE FOR A SHORT TIME AND THEREFOR A TRAVEL ALLOWANCE IS PAYABLE. HOWEVER SINCE THE OFFICER'S MOTHER WAS NOT RESIDING WITH THE OFFICER AT HIS OVERSEAS STATION AT THE TIME OF RETIREMENT THE COST OF THE MOTHER'S TRAVEL MUST BE DISALLOWED IN ABSENCE OF APPROVAL AS REQUIRED IN PAR. M7000-11.

TO COLONEL ROBERT W. NEAL, AUS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1967, REQUESTING REVIEW OF YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL AND TRANSPORTATION OF DEPENDENT (MOTHER) INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

BY SPECIAL ORDERS 212, DATED AUGUST 13, 1966, YOU WERE DIRECTED TO BE AVAILABLE AUGUST 24, 1966, FOR TRANSPORTATION FROM YOUR OVERSEAS STATION TO THE ARMY PERSONNEL CENTER, FORT HAMILTON, NEW YORK, FOR RETIREMENT FROM ACTIVE SERVICE ON AUGUST 31, 1966, AND PLACEMENT ON THE RETIRED LIST ON SEPTEMBER 1, 1966. YOU SAY ON YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL TO HOME OF SELECTION (DA FORM 2737) DATED JUNE 19, 1967, THAT YOU TRAVELED FROM FORT HAMILTON TO BALTIMORE, MARYLAND, AND THAT YOU AND YOUR MOTHER TRAVELED FROM THERE TO SALINAS, CALIFORNIA, WHICH YOU CLAIM AS YOUR HOME OF SELECTION, DURING THE PERIOD MAY 9 TO 19, 1967.

IN YOUR LETTER OF JULY 19, 1967, TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, YOU SAY THAT UPON YOUR ARRIVAL IN SALINAS (WHERE YOUR HOUSEHOLD GOODS AND PERSONAL EFFECTS WERE SHIPPED FROM STORAGE) YOU FOUND THAT THE TENANTS STILL OCCUPIED YOUR HOME THERE AND THAT RATHER THAN START AN EVICTION ACTION YOU PLANNED TO TAKE AN APARTMENT IN SALINAS. HOWEVER, SINCE YOUR DIVORCED WIFE WAS INVOLVED IN A CALIFORNIA LEGAL ACTION AND YOUR LEGAL PAPERS WERE NOT YET UNPACKED, YOU SAY THE LEGAL ADVISER AT FORD ORD RECOMMENDED THAT YOU LEAVE CALIFORNIA TEMPORARILY UNTIL THE DOCUMENTS WERE IN YOUR POSSESSION AND YOUR DIVORCED WIFE'S PROBLEMS SETTLED.

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, NOT LATER THAN ONE YEAR FROM THE DATE HE IS SO RETIRED, SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION. PARAGRAPH M1150 -3B OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY, 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 M4158-1A OF THE REGULATIONS 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. ALSO, PARAGRAPH M7010-1A, PROMULGATED PURSUANT TO 37 U.S.C. 406, PROVIDES FOR DEPENDENTS' TRANSPORTATION UPON RETIREMENT IF TRAVEL IS PERFORMED TO THE HOME OF SELECTION WITHIN ONE YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY. SUCH AUTHORITY, HOWEVER, IS LIMITED BY THE PROVISIONS OF PARAGRAPH M7000-11 WHICH PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE EXCEPT--

"11. FOR ANY TRAVEL PERFORMED BY A DEPENDENT PARENT OR PARENTS WHO DO NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF SAID MEMBER UNLESS OTHERWISE AUTHORIZED OR APPROVED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE * * *.'

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 TRAVEL FOR WHICH A MEMBER SEEKS REIMBURSEMENT WAS TO A PLACE SELECTED BY HIM AS HIS HOME, IS HIS CONTINUED RESIDENCE AT THAT PLACE. THE FACT, HOWEVER, THAT THE MEMBER REMAINS AT HIS SELECTED HOME FOR ONLY A SHORT PERIOD OF TIME DOES NOT IN ITSELF DEFEAT HIS CLAIM TO TRAVEL ALLOWANCES AND ABSENCES FROM THE SELECTED HOME FOR PERSONAL REASONS, SUCH AS IN YOUR CASE, DO NOT NECESSARILY REQUIRE A CONCLUSION THAT THE MEMBER DID NOT HAVE A BONA FIDE INTENT TO SELECT THE HOME INDICATED BY HIM. ALSO THE SHIPMENT OF YOUR HOUSEHOLD GOODS TO SALINAS WHERE YOU OWN A HOUSE APPEARS TO SUPPORT YOUR CLAIM THAT YOU INTENDED TO ESTABLISH A HOME THERE. ACCORDINGLY, WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT MAY BE CONSIDERED THAT YOU ARE ENTITLED TO MILEAGE TO SALINAS, CALIFORNIA, ON THE BASIS THAT THIS WAS YOUR SELECTED HOME ON RETIREMENT.

HOWEVER, SINCE YOUR MOTHER WAS NOT RESIDING WITH YOU AT YOUR OVERSEAS STATION AT THE TIME YOU WERE RETIRED, HER TRAVEL FROM BALTIMORE TO SALINAS COMES WITHIN THE EXCEPTION TO ENTITLEMENT UNDER PARAGRAPH M7000-11 OF THE JOINT TRAVEL REGULATIONS, AND SINCE THERE IS NO EVIDENCE THAT SUCH TRAVEL WAS SPECIFICALLY AUTHORIZED OR APPROVED BY THE SECRETARY OR HIS REPRESENTATIVE AS PROVIDED IN THE EXCEPTION, THERE IS NO BASIS TO ALLOW YOUR CLAIM FOR HER TRANSPORTATION.

WE ARE TODAY INSTRUCTING OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN YOUR FAVOR FOR THE TRAVEL ALLOWANCE DUE YOU FOR TRAVEL FROM FORT HAMILTON, NEW YORK, TO SALINAS, CALIFORNIA.