B-171264, JAN 18, 1971

B-171264, JAN 18, 1971

RETIREMENT - HOME OF SELECTION - TRAVEL EXPENSES AFFIRMING PRIOR SETTLEMENT DENYING CLAIM FOR PERSONAL TRAVEL FROM FORT HAMILTON, N.Y., TO ALEXANDER CITY, ALABAMA, AND FOR DEPENDENT'S TRAVEL FROM BALTIMORE, MD., TO ALEXANDER CITY, ALABAMA, INCIDENT TO RETIREMENT ORDERS. REGULATIONS PROVIDE THAT A MEMBER OF A UNIFORMED SERVICE AND HIS DEPENDENTS ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO "HOME OF SELECTION" UPON SEPARATION. HOWEVER, IN THE CASE WHERE MEMBERS' DEPENDENTS REACHED PLACE SELECTED FOR RETIREMENT, ALEXANDER, AND FOUND THEY DISLIKED IT AND MEMBER'S TRAVEL TO THAT PLACE WAS FOR THE PURPOSE OF PICKING UP HIS DEPENDENTS SO THAT THEY COULD MOVE ELSEWHERE, AS EVIDENCED BY SHIPMENT, AT GOVERNMENT EXPENSE, OF HOUSEHOLD GOODS STORED AT ALEXANDER TO BALTIMORE, NO REIMBURSEMENT IS ALLOWED.

TO MR. CEASER L. HAWES:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF SEPTEMBER 18, 1970, WHICH DISALLOWED YOUR CLAIM FOR PERSONAL TRAVEL FROM FORT HAMILTON, NEW YORK, TO ALEXANDER CITY, ALABAMA, AND FOR YOUR DEPENDENTS' TRAVEL FROM BALTIMORE, MARYLAND, TO ALEXANDER CITY, ALABAMA, INCIDENT TO YOUR RETIREMENT ORDERS OF JUNE 16, 1969.

BY ORDERS DATED MAY 19, 1969, YOU WERE DIRECTED TO PROCEED FROM YOUR OVERSEAS STATION TO RHEIN MAIN AIR BASE, GERMANY, ON JUNE 24, 1969, FOR TRANSPORTATION TO FORT HAMILTON, NEW YORK, FOR PROCESSING FOR RELEASE FROM ACTIVE DUTY AND RETIREMENT. BY ORDERS DATED JUNE 16, 1969, YOU WERE RELEASED FROM ACTIVE DUTY ON JUNE 30, 1969, AND RETIRED FROM THE SERVICE EFFECTIVE JULY 1, 1969.

ON MAY 30, 1969, YOUR WIFE AND TWO CHILDREN TRAVELED BY COMMERCIAL AIR FROM BALTIMORE, MARYLAND, THE DESIGNATED PLACE WHERE THEY RESIDED WHILE YOU WERE OVERSEAS, TO ALEXANDER CITY, ALABAMA, ON THE BASIS OF ORDERS RETURNING YOU TO THE UNITED STATES FOR RETIREMENT. YOU ARRIVED AT FORT HAMILTON, NEW YORK, ON JUNE 26, 1969, WHERE YOU WERE PROCESSED FOR SEPARATION WHICH WAS COMPLETED ON JUNE 28, 1969. THE FOLLOWING DAY YOU TRAVELED FROM FORT HAMILTON TO ALEXANDER CITY BY COMMERCIAL AIR AND ARRIVED THERE THE SAME DAY.

IN SUBMITTING YOUR CLAIM TO THE DEPARTMENT OF THE ARMY, YOU STATED THAT YOU WENT TO ALABAMA TO BRING YOUR WIFE AND DAUGHTERS BACK TO BALTIMORE. PAYMENT OF YOUR CLAIM FOR PERSONAL AND DEPENDENT TRAVEL WAS DENIED BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT THE RECORD INDICATED THAT THE TRAVEL TO ALEXANDER CITY WAS NOT FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF SEPTEMBER 18, 1970, FOR THE REASONS STATED THEREIN.

IN YOUR LETTER YOU SAY:

"THE REASON MY WIFE AND TWO DAUGHTERS MOVED TO ALEXANDER CITY, ALA. THE 30TH OF MAY 1969 WAS SO I COULD JOIN THEM THERE UPON RETIREMENT AND ESTABLISH RESIDENCE. THE REASON FOR THIS WAS THAT I WAS BORN AND RAISED THERE. IT TURNED OUT THEY DISLIKED LIVING IN ALABAMA, THEREFORE I MADE ARRANGEMENTS TO MOVE THEM TO MY PRESENT ADDRESS AND ESTABLISH MY RESIDENCE THERE."

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 SERVICES 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 SELECTION," AS USED IN THE REGULATIONS MEANS A PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. UNDER THE LAW AND REGULATIONS AS PRESENTLY CONSTITUTED, A MEMBER OTHERWISE ELIGIBLE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS FROM HIS LAST DUTY STATION, OR THE PLACE TO WHICH THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO HIS HOME OF SELECTION.

WHILE THE RECORD INDICATES THAT YOUR DEPENDENTS TRAVELED TO ALEXANDER CITY FOR THE PURPOSE OF ESTABLISHING A RESIDENCE, IT IS CLEAR THE SITUATION HAD CHANGED AT THE TIME OF YOUR RETIREMENT. AT THAT TIME YOU TRAVELED TO ALEXANDER CITY FOR THE PURPOSE OF BRINGING THEM BACK TO BALTIMORE WHERE YOU INTENDED TO RESIDE.

IN THIS CONNECTION, THE RECORDS SHOW THAT YOU HAVE BEEN REIMBURSED IN THE AMOUNT OF $195.50 FOR THE MOVEMENT OF HOUSEHOLD GOODS FROM ALEXANDER CITY TO BALTIMORE IN A RENTED TRUCK ON JUNE 27, 1970, INCIDENT TO YOUR RETIREMENT. PRESUMABLY THESE GOODS HAD BEEN MOVED TO ALEXANDER CITY INCIDENT TO A PREVIOUS PERMANENT CHANGE OF STATION AND ON THAT BASIS SHIPMENT WAS AUTHORIZED UNDER PARAGRAPH M8260 OF THE JOINT TRAVEL REGULATIONS FROM THERE TO YOUR HOME OF SELECTION OR TO SOME OTHER LOCATION, NOT EXCEEDING THE COST OF SHIPMENT TO YOUR HOME OF SELECTION.

THUS IT APPARENTLY WAS DETERMINED THAT YOU WERE ENTITLED TO MOVE THE GOODS TO BALTIMORE AS YOUR HOME OF SELECTION. IF ALEXANDER CITY HAD, IN FACT, BEEN YOUR HOME OF SELECTION INCIDENT TO YOUR RETIREMENT, MOVEMENT OF THE GOODS FROM THERE TO BALTIMORE, HOWEVER, WOULD NOT HAVE BEEN AUTHORIZED AT GOVERNMENT EXPENSE UNDER THE CITED REGULATIONS.

IN THESE CIRCUMSTANCES WE MUST CONCLUDE THAT BALTIMORE WAS IN FACT YOUR HOME OF SELECTION AND, THEREFORE, THERE IS NO LEGAL BASIS TO ALLOW YOU MILEAGE FOR YOUR PERSONAL OR DEPENDENT TRAVEL TO ALEXANDER CITY AS CLAIMED. YOU ARE ENTITLED, HOWEVER, TO MILEAGE FOR YOUR TRAVEL FROM FORT HAMILTON, NEW YORK, TO BALTIMORE.

ACCORDINGLY, A SETTLEMENT FOR THE AMOUNT DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.