B-171962, MAR 9, 1971

B-171962: Mar 9, 1971

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TRAVEL EXPENSES - RETIREMENT DECISION SUSTAINING PRIOR SETTLEMENT WHICH DISALLOWED CLAIM FOR TRAVEL BY RETIRED MEMBER AND HIS DEPENDENT SONS ON BASIS THAT TRAVEL WAS NOT TO MEMBER'S 'HOME OF SELECTION'. NOTHING IN THE RECORD INDICATES THAT MEMBER'S TRAVEL FROM OKINAWA TO OKLAHOMA CITY SUPPORTS A CONCLUSION THAT SUCH TRAVEL WAS FOR ANY PURPOSE OTHER THAN A VISIT. THEREFORE DEPENDENTS' TRAVEL WAS ALSO NOT TO THE MEMBERS 'HOME OF SELECTION'. IN SUCH CIRCUMSTANCES THERE IS NO BASIS FOR THE PAYMENT OF THE CLAIM. GLANDER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. YOU WERE RELIEVED OF DUTY AT FORT BUCKNER. THAT YOU WERE ALSO CLAIMING AN ALLOWANCE FOR YOUR OWN TRAVEL TO OKLAHOMA CITY.

B-171962, MAR 9, 1971

TRAVEL EXPENSES - RETIREMENT DECISION SUSTAINING PRIOR SETTLEMENT WHICH DISALLOWED CLAIM FOR TRAVEL BY RETIRED MEMBER AND HIS DEPENDENT SONS ON BASIS THAT TRAVEL WAS NOT TO MEMBER'S 'HOME OF SELECTION'. NOTHING IN THE RECORD INDICATES THAT MEMBER'S TRAVEL FROM OKINAWA TO OKLAHOMA CITY SUPPORTS A CONCLUSION THAT SUCH TRAVEL WAS FOR ANY PURPOSE OTHER THAN A VISIT. MEMBER RETURNED TO OKINAWA AND ADMITS THAT HE BROUGHT HIS SONS FROM SAN FRANCISCO TO JUNCTION CITY, KANSAS, TO RETURN THEM TO THEIR MOTHER'S CUSTODY. THEREFORE DEPENDENTS' TRAVEL WAS ALSO NOT TO THE MEMBERS 'HOME OF SELECTION'. IN SUCH CIRCUMSTANCES THERE IS NO BASIS FOR THE PAYMENT OF THE CLAIM.

TO STAFF SERGEANT OSCAR W. GLANDER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1971, REQUESTING REVIEW OF THE SETTLEMENT DATED JANUARY 22, 1971, WHICH DISALLOWED YOUR CLAIM FOR YOUR TRAVEL FROM OKINAWA TO OKLAHOMA CITY, OKLAHOMA, AND FOR TRAVEL OF YOUR TWO SONS, AGES 14 AND 15, FROM OKINAWA TO JUNCTION CITY, KANSAS, DURING THE PERIOD SEPTEMBER 17 TO 20, 1970, INCIDENT TO YOUR RETIREMENT.

BY DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 25, DATED FEBRUARY 5, 1970, YOU WERE RELIEVED OF DUTY AT FORT BUCKNER, OKINAWA, ON FEBRUARY 28, 1970, AND RETIRED THE NEXT DAY. ON SEPTEMBER 25, 1970, YOU FILED A CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR SONS FROM SAN FRANCISCO, CALIFORNIA, TO JUNCTION CITY, KANSAS, SEPTEMBER 17 TO 20, 1970. THEREAFTER, YOU ADVISED THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THAT YOU WERE ALSO CLAIMING AN ALLOWANCE FOR YOUR OWN TRAVEL TO OKLAHOMA CITY, AS YOUR HOME OF SELECTION AND SAID THAT CITY WAS YOUR HOME OF RECORD.

THE RECORD SHOWS THAT YOU AND YOUR WIFE WERE DIVORCED IN 1967, AND THAT YOUR SONS RESIDED IN JUNCTION CITY IN DECEMBER 1969, WHEN THEY JOINED YOU AT YOUR OVERSEAS STATION A FEW MONTHS BEFORE YOUR RETIREMENT. WHEN YOU TRAVELED WITH THEM TO JUNCTION CITY IN SEPTEMBER 1970 YOU EXPLAINED THAT YOU WERE RETURNING THEM TO THE CUSTODY OF THEIR MOTHER SO THEY COULD ATTEND SCHOOL, AND THAT YOU RETURNED TO OKINAWA. APPARENTLY, YOU HAVE CONTINUED TO RESIDE IN OKINAWA SINCE YOUR RETIREMENT.

YOUR CLAIM FOR YOUR TRAVEL TO OKLAHOMA CITY, AND FOR TRAVEL OF YOUR SONS TO JUNCTION CITY WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN THE ABSENCE OF EVIDENCE THAT YOU TRAVELED TO A HOME OF SELECTION FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE UPON RETIREMENT AND THAT YOUR DEPENDENTS TRAVELED TO SUCH SELECTED HOME. IN YOUR PRESENT LETTER YOU ASK WHAT EVIDENCE IS NEEDED TO SHOW THAT YOU DID TRAVEL TO THE CITIES MENTIONED IN THE SETTLEMENT.

THE CONTROLLING STATUTORY PROVISIONS, 37 U.S.C. 404 AND 406, PROVIDE THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE AND HIS DEPENDENTS ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO HOME UPON SEPARATION. THE LAW PROVIDES 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. PARAGRAPH M4158-1A PROVIDES THAT A MEMBER OTHERWISE ELIGIBLE 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 M7010-1A PROVIDES FOR DEPENDENTS' TRANSPORTATION FROM THE MEMBER'S LAST PERMANENT DUTY STATION UPON RETIREMENT IF TRAVEL IS COMPLETED TO THE HOME OF SELECTION WITHIN ONE YEAR AFTER THE TERMINATION OF ACTIVE DUTY.

THE PURPOSE OF THE LAWS 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 HAS BEEN VIEWED AS ACCRUING. TRAVEL TO ANY PLACE (HOME OF RECORD OR OTHERWISE) AT WHICH THE MEMBER DOES NOT INTEND TO ESTABLISH A HOME, BUT MERELY TO VISIT, HAS NOT BEEN CONSIDERED AS TRAVEL TO A SELECTED HOME AS CONTEMPLATED BY THE LAW AND REGULATIONS. 36 COMP. GEN. 774. A MEMBER MAY SELECT HIS HOME OF RECORD FOR THAT PURPOSE, BUT THE INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE, AT THE TIME OF TRAVEL THERETO BY THE MEMBER, IS A 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 A MEMBER DOES NOT CLEARLY ESTABLISH HIS INTENTION BY TAKING UP AN EXTENDED RESIDENCE AT THE PLACE TO WHICH MILEAGE IS CLAIMED, BUT GOES TO SOME OTHER PLACE, 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, AND OTHER FACTS IN THE CASE INDICATE THAT THE TRAVEL WAS FOR PURPOSES OTHER THAN TO ESTABLISH A HOME, THE CONCLUSION IS REQUIRED THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS.

WHILE YOU NOW SAY THAT YOU DID TRAVEL TO OKLAHOMA CITY, THERE IS NOTHING IN THE RECORD WHICH WOULD SUPPORT A CONCLUSION THAT SUCH TRAVEL WAS FOR ANY PURPOSE OTHER THAN A VISIT. IT SEEMS CLEAR THAT YOU DID NOT INTEND TO ESTABLISH A RESIDENCE IN OKLAHOMA CITY UPON RETIREMENT BUT THAT YOU RETURNED TO OKINAWA AFTER LEAVING YOUR SONS WITH YOUR FORMER WIFE IN JUNCTION CITY. IN SUCH CIRCUMSTANCES THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 22, 1971, WAS CORRECT AND IS SUSTAINED.