B-175142, APR 3, 1972

B-175142: Apr 3, 1972

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A MEMBER MAY CLAIM TRAVEL ALLOWANCE ONLY AFTER HE HAS COMPLETED THE TRAVEL AND IT IS THEN THAT HIS CLAIM ACCRUES FOR PURPOSES OF 31 U.S.C. 71A. IS NOT EMPOWERED TO GRANT AN EXTENSION OF TIME FOR FILING SUCH CLAIM. QUALLS: FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 15. YOU WERE INFORMED OF YOUR TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST (TDRL) IN THE GRADE OF SEAMAN APPRENTICE. ARMED FORCES OF THE UNITED STATES REPORT OF TRANSFER OR DISCHARGE (DD FORM 214) SHOWS THAT YOUR LAST DAY OF ACTIVE SERVICE WAS JULY 31. YOU REQUESTED THE FORMS NECESSARY TO SECURE TRAVEL PAY AND SAID THAT UPON SEPARATION FROM ACTIVE DUTY YOU WERE INFORMED THAT YOU HAD TO WAIT ONE YEAR TO CLAIM SUCH PAY.

B-175142, APR 3, 1972

MILITARY PERSONNEL - TRAVEL ALLOWANCE - ENTITLEMENT - BARRING ACT DECISION SUSTAINING PRIOR DENIAL OF A CLAIM OF FREDRICK W. QUALLS FOR TRAVEL ALLOWANCE INCIDENT TO HIS BEING TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST. UNDER THE PROVISIONS OF PARAGRAPH M4158-1A, JTR, A MEMBER MAY CLAIM TRAVEL ALLOWANCE ONLY AFTER HE HAS COMPLETED THE TRAVEL AND IT IS THEN THAT HIS CLAIM ACCRUES FOR PURPOSES OF 31 U.S.C. 71A, 237, WHICH PROHIBITS CONSIDERATION OF CLAIMS AGAINST THE UNITED STATES SUBMITTED TO GAO AFTER 10 FULL YEARS FROM THE DATE OF ACCRUAL. SINCE THE COMP. GEN. IS NOT EMPOWERED TO GRANT AN EXTENSION OF TIME FOR FILING SUCH CLAIM, THE PRIOR DISALLOWANCE MUST BE SUSTAINED.

TO MR. FREDRICK W. QUALLS:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 15, 1971, IN WHICH YOUR WIFE IN EFFECT REQUESTS REVIEW OF OUR CLAIMS DIVISION DENIAL OF YOUR CLAIM FOR TRAVEL ALLOWANCE FOR TRAVEL PERFORMED FROM JACKSONVILLE, FLORIDA, TO FRESNO, CALIFORNIA, AUGUST 7 TO 11, 1961.

BY LETTER OF THE CHIEF OF NAVAL PERSONNEL, DATED JULY 26, 1961, VIA COMMANDING OFFICER, U.S. NAVAL AIR STATION, JACKSONVILLE, FLORIDA, YOU WERE INFORMED OF YOUR TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST (TDRL) IN THE GRADE OF SEAMAN APPRENTICE, EFFECTIVE AUGUST 1, 1961. ARMED FORCES OF THE UNITED STATES REPORT OF TRANSFER OR DISCHARGE (DD FORM 214) SHOWS THAT YOUR LAST DAY OF ACTIVE SERVICE WAS JULY 31, 1961.

BY UNDATED LETTER FIRST RECEIVED BY THE NAVY ON AUGUST 7, 1962, YOU REQUESTED THE FORMS NECESSARY TO SECURE TRAVEL PAY AND SAID THAT UPON SEPARATION FROM ACTIVE DUTY YOU WERE INFORMED THAT YOU HAD TO WAIT ONE YEAR TO CLAIM SUCH PAY. ON TRAVEL CLAIM FORM DATED SEPTEMBER 11, 1962 (APPARENTLY RECEIVED BY THE NAVY ON SEPTEMBER 13, 1962), YOU INDICATED THAT YOU TRAVELED BY COMMERCIAL RAIL FROM U.S. NAVY HOSPITAL, JACKSONVILLE, FLORIDA, TO FRESNO, CALIFORNIA, DURING THE PERIOD FROM AUGUST 3 TO 6, 1961. ATTACHED TO THE CLAIM WERE COPIES OF DD FORM 214 AND LETTER OF JULY 26, 1961, ON WHICH WERE WRITTEN YOUR CERTIFICATION OF SELECTION OF LINDSAY, CALIFORNIA, AS YOUR HOME UPON TRANSFER TO THE FLEET RETIRED LIST, AND THAT YOU HAD ESTABLISHED AND MAINTAINED A BONA FIDE RESIDENCE AT THAT PLACE.

CLAIM DATED SEPTEMBER 10, 1971, TOGETHER WITH YOUR PRIOR CLAIM, WAS RECEIVED IN THIS OFFICE ON SEPTEMBER 20, 1971, FROM THE NAVY FINANCE CENTER, CLEVELAND, OHIO. BY CLAIMS DIVISION LETTER OF OCTOBER 21, 1971, YOU WERE INFORMED THAT YOUR CLAIM FOR TRAVEL ALLOWANCE IS BARRED BECAUSE IT WAS RECEIVED IN THE UNITED STATES GENERAL ACCOUNTING OFFICE MORE THAN TEN YEARS AFTER YOUR NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

SINCE YOU SAID THAT YOU WERE TOLD BY THE FINANCE OFFICER AT U.S. NAVAL AIR STATION, JACKSONVILLE, THAT YOU COULD NOT DRAW ADVANCE TRAVEL PAY NOR APPLY FOR SUCH ALLOWANCE UNTIL ONE YEAR AFTER RELEASE FROM ACTIVE SERVICE, YOUR WIFE, IN LETTER OF NOVEMBER 15, 1971, CONCLUDES THAT THE TEN-YEAR FILING PERIOD IS TO BE COUNTED FROM THE COMPLETION OF THE ONE-YEAR PERIOD (AUGUST 1962) AND, THEREFORE, CLAIM MIGHT BE MADE TO THIS OFFICE UNTIL AUGUST 1972.

THE CONTROLLING STATUTE, SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, NOW CODIFIED IN 37 U.S.C. 404, PROVIDES THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION.

REGULATIONS ISSUED PURSUANT TO THAT STATUTORY AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M1150-3B OF THE REGULATIONS PROVIDES THAT THE TERM "HOME OF SELECTION" AS USED IN THE REGULATIONS MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT OR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST.

PARAGRAPH M4158-1A (CHANGE 105, JUNE 1, 1961) PROVIDES IN PERTINENT PART THAT A MEMBER ON ACTIVE DUTY MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION WHEN RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST (WITHOUT REGARD TO LENGTH OF SERVICE). THE TRAVEL TO A SELECTED HOME MUST BE COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. ADVANCE PAYMENT OF TRAVEL ALLOWANCES TO THE SELECTED HOME IS NOT AUTHORIZED. SUBPARAGRAPH 2 PROVIDES FOR THE EXTENSION OF THE ONE-YEAR PERIOD WHEN THE MEMBER IS CONFINED IN OR UNDERGOING TREATMENT AT A GOVERNMENT HOSPITAL ON THE DATE OF TERMINATION OF HIS ACTIVE SERVICE.

SUBPARAGRAPH 5 STATES THAT A MEMBER WHO IS ON THE TEMPORARY DISABILITY RETIRED LIST AT THE TIME HE IS DISCHARGED WITH SEVERANCE PAY OR RETIRED FOR ANY REASON WILL NOT BE ENTITLED TO TRAVEL ALLOWANCES IN CONNECTION WITH SUCH DISCHARGE OR RETIREMENT. THIS LIMITATION WILL NOT AFFECT THE MEMBER'S RIGHT TO TRAVEL ALLOWANCES TO WHICH HE WAS ENTITLED IN CONJUNCTION WITH HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST UNDER SUBPAR. 1 OR 2.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE (WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE) SHALL BE FOREVER BARRED UNLESS SUCH CLAIM BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED.

THE PURPOSE OF THE PERTINENT STATUTE AND REGULATIONS IS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR A MEMBER TO THE PLACE WHERE HE GOES TO RESIDE FOLLOWING RETIREMENT OR PLACEMENT ON TDRL, AND UNTIL SUCH PLACE HAS BEEN SELECTED AND TRAVEL TO IT FOR THAT PURPOSE HAS BEEN PERFORMED, NO RIGHT TO TRAVEL ALLOWANCES ACCRUES. SEE 36 COMP. GEN. 774 (1957) AND DECISION, B-152906, NOVEMBER 29, 1963, COPIES ENCLOSED.

ADVANCE PAYMENT OF ALLOWANCES IS NOT AUTHORIZED AND THE MEMBER MAY NOT CLAIM THE ALLOWANCE IN QUESTION UNTIL COMPLETION OF TRAVEL. PROVISIONS REGARDING THE TIME OF COMPLETION OF TRAVEL TO HOME OF SELECTION CONTAINED IN PAR. M4158, JTR, ONLY SERVE TO LIMIT THE PERIOD SUBSEQUENT TO RETIREMENT OR PLACEMENT ON TDRL, DURING WHICH THE MEMBER MAY COMPLETE SUCH TRAVEL. SINCE THE MEMBER MAY CLAIM THE TRAVEL ALLOWANCE ONLY AFTER HE HAS PERFORMED SUCH TRAVEL, IT IS THEN THAT HIS CLAIM ACCRUES FOR THE PURPOSES OF THE ACT OF OCTOBER 9, 1940. A MEMBER'S CLAIM IS BARRED UNLESS IT IS RECEIVED IN THIS OFFICE WITHIN TEN FULL YEARS AFTER THE COMPLETION OF TRAVEL TO HOME OF SELECTION.

IN THIS INSTANCE, SINCE YOU TRAVELED TO YOUR SELECTED HOME, LINDSAY, CALIFORNIA, IN AUGUST 1961, RECEIPT OF YOUR CLAIM FOR SUCH TRAVEL IN THIS OFFICE ON SEPTEMBER 20, 1971, WAS MORE THAN TEN FULL YEARS AFTER ACCRUAL OF YOUR CLAIM, AND IT IS BARRED UNDER THE ACT OF OCTOBER 9, 1940.

IT IS REGRETTABLE THAT YOU MAY HAVE BEEN MISINFORMED YOU COULD NOT SUBMIT YOUR CLAIM UNTIL ONE YEAR AFTER RELEASE FROM ACTIVE SERVICE. AND, IT MAY BE THAT YOU MISUNDERSTOOD INSTRUCTION WITH RESPECT TO THE REQUIREMENT FOR COMPLETING TRAVEL TO A HOME OF SELECTION WITHIN ONE YEAR. APPARENTLY, YOUR CLAIM SUBMITTED TO THE DEPARTMENT OF THE NAVY IN SEPTEMBER 1962 WAS NEVER ACTED UPON; IT WAS FIRST FORWARDED TO THIS OFFICE WITH YOUR CLAIM OF SEPTEMBER 10, 1971. HOWEVER, SUCH CIRCUMSTANCES DO NOT PROVIDE A LEGAL BASIS FOR PAYMENT OF THE CLAIM, AND THIS OFFICE IS NOT EMPOWERED TO MAKE EXCEPTION TO THE PROVISIONS OF THE BARRING ACT NOR GRANT AN EXTENSION OF TIME FOR FILING A CLAIM IN THE GENERAL ACCOUNTING OFFICE.

THE DENIAL OF YOUR CLAIM IS SUSTAINED. ENCLOSED ARE COPIES OF DOCUMENTS REQUESTED BY MRS. QUALLS.