B-166675, JUN. 16, 1969

B-166675: Jun 16, 1969

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PIERCY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. WHICH WAS DENIED BY THE ARMY. YOU WERE RELIEVED FROM ACTIVE DUTY AT FORT BRAGG. THE POINT TO WHICH TRAVEL WAS COMPLETED AND DATE OF ARRIVAL. (WHERE YOUR RETIREMENT CHECKS WERE BEING SENT). STATING THAT A MEMBER WHO IS RETIRED MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST STATION. THAT TRAVEL TO THE PLACE SELECTED MUST BE COMPLETED WITHIN ONE YEAR FROM TERMINATION OF ACTIVE DUTY AND THAT IN THE EVENT YOUR RESIDENCE (WAYNESVILLE) IS YOUR SELECTED HOME THE FORM 34-3 SHOULD BE COMPLETED TO SHOW ALL TRAVEL. YOU WERE REQUESTED TO EXPLAIN WHY YOUR DEPENDENTS WERE LOCATED IN WAYNESVILLE RATHER THAN FORT BRAGG.

B-166675, JUN. 16, 1969

TO MR. RALPH M. PIERCY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1969, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 15, 1966, WHICH DISALLOWED YOUR CLAIM FOR PERSONAL TRAVEL AND TRAVEL OF DEPENDENTS INCIDENT TO YOUR RETIREMENT AS SERGEANT FIRST CLASS, ARMY. ALSO, YOU REQUEST CONSIDERATION OF YOUR CLAIM FOR PROFICIENCY PAY FOR THE PERIOD MARCH 8 TO AUGUST 12, 1965, WHICH WAS DENIED BY THE ARMY.

BY PARAGRAPH 275, DEPARTMENT OF THE ARMY SPECIAL ORDER NO. 236, DATED SEPTEMBER 3, 1965, YOU WERE RELIEVED FROM ACTIVE DUTY AT FORT BRAGG, NORTH CAROLINA, ON OCTOBER 31, 1965, AND RETIRED THE NEXT DAY AFTER 20 YEARS OF SERVICE.

ON APRIL 25, 1966, WHILE STATIONED OVERSEAS IN A CIVILIAN POSITION, YOU INITIATED A CLAIM ON FORM 2737 FOR TRAVEL ALLOWANCES INCIDENT TO YOUR RETIREMENT, STATING THAT YOU HAD TRAVELED FROM FORT BRAGG,NORTH CAROLINA, AND THAT YOUR DEPENDENTS (WIFE AND DAUGHTER) HAD TRAVELED FROM WAYNESVILLE, MISSOURI. IN FORWARDING THE CLAIM TO THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, YOU REQUESTED THE FINANCE CENTER TO MAKE THE PROPER ENTRIES IN ITEMS 2C, D AND 3C TO SHOW YOUR HOME OF SELECTION, THE POINT TO WHICH TRAVEL WAS COMPLETED AND DATE OF ARRIVAL, STATING THAT:

"MY FIRST CHOICE WOULD BE PAYMENT FOR TRAVEL TO POINT OF ENTRY INTO SERVICE, PORTLAND, OREGON.

"MY SECOND CHOICE WOULD BE SAN FRANCISCO, I DEPARTED THERE AT GOVERNMENT EXPENSE TO MY PRESENT RESIDENCE IN VIENTIANE, LAOS.

"MY THIRD CHOICE WOULD BE MY BIRTHPLACE AT CARTHAGE, MISSOURI.'

BY LETTER OF JUNE 14, 1966, ADDRESSED TO YOU AT WAYNESVILLE, MISSOURI, (WHERE YOUR RETIREMENT CHECKS WERE BEING SENT), THE FINANCE CENTER RETURNED THE FORM TO YOU FOR COMPLETION AND ENCLOSED A FORM 34 3 (ITINERARY), STATING THAT A MEMBER WHO IS RETIRED MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST STATION, THAT TRAVEL TO THE PLACE SELECTED MUST BE COMPLETED WITHIN ONE YEAR FROM TERMINATION OF ACTIVE DUTY AND THAT IN THE EVENT YOUR RESIDENCE (WAYNESVILLE) IS YOUR SELECTED HOME THE FORM 34-3 SHOULD BE COMPLETED TO SHOW ALL TRAVEL. ALSO, YOU WERE REQUESTED TO EXPLAIN WHY YOUR DEPENDENTS WERE LOCATED IN WAYNESVILLE RATHER THAN FORT BRAGG.

YOU COMPLETED THE FORMS ON JULY 12, 1966, TO SHOW THAT YOUR SELECTED HOME WAS CARTHAGE, MISSOURI, THAT YOU HAD TRAVELED THERETO VIA WAYNESVILLE AND THAT TRAVEL BY YOU AND YOUR DEPENDENTS TO CARTHAGE WAS COMPLETED ON NOVEMBER 4, 1965. IN AN ACCOMPANYING LETTER DATED JULY 17, 1966, YOU EXPLAINED THAT YOU HAD LEFT YOUR DEPENDENTS IN WAYNESVILLE WHEN YOU WERE ORDERED TO DUTY OVERSEAS FROM FORT LEONARD WOOD, THAT YOUR DAUGHTER WAS ATTENDING HIGH SCHOOL THERE, AND THAT THEY REMAINED IN WAYNESVILLE WHEN YOU WERE RETURNED TO THE UNITED STATES AND ASSIGNED TO DUTY AT FORT BRAGG.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF NOVEMBER 15, 1966, FOR THE REASON STATED THEREIN. IN YOUR PRESENT LETTER YOU SAY YOU HAVE TRIED TO COLLECT TRAVEL PAY FOR YOUR TRAVEL UPON RETIREMENT TO YOUR HOME IN WAYNESVILLE, MISSOURI, THAT YOU HAVE OWNED YOUR HOME THERE SINCE 1958, THAT YOU VOTE AND PAY TAXES THERE, AND THAT YOU INTENDED TO REMAIN IN WAYNESVILLE INDEFINITELY BUT THAT ON NOVEMBER 22, 1965, YOU WERE OFFERED EMPLOYMENT WHICH YOU ACCEPTED, LEADING TO YOUR ASSIGNMENT IN LAOS.

THE CONTROLLING STATUTORY PROVISIONS, 37 U.S.C. 404 AND 406, PROVIDE THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE AND HIS DEPENDENTS ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO HOME UPON SEPARATION. THE LAWS PROVIDE FURTHER THAT A MEMBER WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THOSE SECTIONS.

REGULATIONS ISSUED PURSUANT TO THAT STATUTORY AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M1150-3 (B) OF THOSE REGULATIONS PROVIDES THAT THE TERM "HOME OF ECTION," AS USED IN THE REGULATIONS MEANS A PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH M4158 -1A PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES FROM HIS LAST DUTY STATION TO THE SELECTED HOME, PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH M7000-12 OF THE REGULATIONS PROVIDES, HOWEVER, THAT TRAVEL OF DEPENDENTS TO A POINT WHERE THEY DO NOT INTEND TO ESTABLISH A RESIDENCE OR ON A PLEASURE TRIP IS NOT AN OBLIGATION OF THE GOVERNMENT.

IN THE PRESENT CASE THE RECORD CLEARLY REFLECTS THAT TRAVEL BY YOU AND YOUR DEPENDENTS TO CARTHAGE, MISSOURI, COULD NOT HAVE BEEN MORE THAN FOR A BRIEF VISIT AFTER WHICH YOU AND YOUR DEPENDENTS RETURNED TO YOUR HOME IN WAYNESVILLE. THUS, THERE IS NO BASIS ON WHICH YOU MAY BE REIMBURSED FOR TRAVEL OF YOUR DEPENDENTS SINCE THERE WAS NO CHANGE IN THEIR PLACE OF RESIDENCE INCIDENT TO YOUR RETIREMENT.

ORDINARILY, THE DESIGNATION OF A PLACE AS HOME OF SELECTION IS IRREVOCABLE. IN THE PRESENT CASE, HOWEVER, IT IS EVIDENT THAT YOU DID NOT UNDERSTAND THAT THE PLACE SELECTED AS HOME IS A PLACE TO WHICH TRAVEL MUST BE PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE. ALSO, IT IS EVIDENT THAT WAYNESVILLE HAS BEEN THE RESIDENCE OF YOUR DEPENDENTS SINCE 1958, AND THAT YOU TRAVELED THERETO UPON YOUR RETIREMENT. IN VIEW OF THE MISUNDERSTANDING AND SINCE IT NOW APPEARS THAT YOUR TRAVEL TO WAYNESVILLE WAS FOR THE PURPOSE OF MAKING IT YOUR HOME UPON RETIREMENT, YOU ARE ENTITLED TO MILEAGE FOR YOUR TRAVEL FROM FORT BRAGG, NORTH CAROLINA, TO WAYNESVILLE, MISSOURI. A SETTLEMENT FOR THE AMOUNT DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.

YOUR CLAIM FOR PROFICIENCY PAY FOR THE PERIOD MARCH 8 TO AUGUST 12, 1965, WAS BASED ON YOUR STATEMENT THAT DURING THAT PERIOD YOU WERE SELECTED AS TEAM CHIEF OF MOBILE TRAINING TEAM 86-65 UNDER YOUR SECONDARY MILITARY OCCUPATIONAL SPECIALTY, 62B40, FOR WHICH YOU HAD QUALIFIED IN AUGUST 1964. YOUR CLAIM WAS DENIED BY THE ARMY FOR THE REASONS THAT THE REGULATIONS FORBID RETROACTIVE AWARD OF PROFICIENCY PAY AND THAT THERE ARE NO PROVISIONS FOR AWARDING PROFICIENCY PAY TO AN INDIVIDUAL IN HIS SECONDARY MILITARY OCCUPATIONAL SPECIALTY. IN YOUR PRESENT LETTER YOU SAY YOU WERE RECRUITED BY THE ARMY FOR THAT PARTICULAR ASSIGNMENT AND BELIEVE YOU SHOULD BE PAID FOR IT.

SECTION 307 OF TITLE 37, U.S.C. PROVIDES THAT AN ENLISTED MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY AND IS DESIGNATED AS BEING SPECIFICALLY PROFICIENT IN A MILITARY SKILL OF THE UNIFORMED SERVICE CONCERNED MAY BE PAID PROFICIENCY PAY. THAT SECTION CONFERS UPON THE SECRETARIES CONCERNED AUTHORITY TO PROVIDE FOR PAYMENT OF PROFICIENCY PAY TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES.

PARAGRAPH 2-20, ARMY REGULATIONS 600-200, PROVIDES THAT OCCUPATIONAL QUALIFICATION FOR A MOS AWARD MAY BE ATTAINED THROUGH SATISFACTORY COMPLETION OF ADVANCED INDIVIDUAL TRAINING, SERVICE SCHOOL TRAINING, ON- THE-JOB TRAINING, OR ON THE BASIS OF CIVILIAN EDUCATION OR WORK EXPERIENCE, AND THAT ENLISTED PERSONNEL WHO POSSESS SKILL AND KNOWLEDGE REQUIRED FOR ANY FIVE-CHARACTER MOS MAY BE AWARDED THAT MOS, PROVIDED THE INDIVIDUAL MEETS CERTAIN SPECIFIED REQUIREMENTS. PARAGRAPH 2-33 OF THAT REGULATION PROVIDES THAT THE SECONDARY MOS (SMOS) AFFORDS AN ALTERNATE OCCUPATIONAL SPECIALTY FOR ASSIGNMENT PURPOSES WHEN CONDITIONS (TRAVEL, MOS IMBALANCES OR OTHER SIGNIFICANT CONTINGENCIES) BAR UTILIZATION OF A MEMBER IN HIS PRIMARY MILITARY OCCUPATIONAL SPECIALTY (PMOS), AND THAT IF AN INDIVIDUAL HAS MORE THAN ONE MOS, ONE WILL BE DESIGNATED AS SECONDARY.

PARAGRAPH 10811, CHAPTER 8, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT MEMBERS WHO MEET THE REQUIREMENTS IN TABLE 1-8-1 MAY BE AWARDED A PROFICIENCY PAY RATING, THAT PROFICIENCY PAY STARTS THE DAY THE AWARD IS MADE UNLESS A LATER DATE IS SPECIFIED, AND THAT AWARDS MAY NOT BE MADE RETROACTIVELY.

SINCE IT APPEARS FROM THE ENCLOSURES RECEIVED WITH YOUR LETTER THAT YOU WERE NOT AWARDED PROFICIENCY PAY AT THE TIME HERE INVOLVED AND SINCE THE AWARD MAY NOT BE MADE RETROACTIVELY, THERE APPARENTLY IS NO BASIS FOR PAYMENT OF YOUR CLAIM FOR SUCH PAY.