B-242927, Aug 23, 1991

B-242927: Aug 23, 1991

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Sec. 404(c) but because of marital difficulties only resides there 2 months and does not ship his household goods to that location is not entitled to travel allowances based on a home of selection since he has not demonstrated that at the time travel was performed that he had the intent to establish a residence at his home of selection. He is entitled to reimbursement for travel and transportation allowances to his home of record or place from which ordered to active duty if he actually performed the travel. The place from which he was ordered to active duty. The Center determined that he was not entitled to allowances for travel to Cincinnati. We have been informally advised by the Center that his household goods were shipped in early August to a location in California.

B-242927, Aug 23, 1991

MILITARY PERSONNEL - Travel - Travel allowances - Eligibility DIGEST: Member transferred to Fleet Marine Corps Reserve and who travels to "home of selection" under 37 U.S.C. Sec. 404(c) but because of marital difficulties only resides there 2 months and does not ship his household goods to that location is not entitled to travel allowances based on a home of selection since he has not demonstrated that at the time travel was performed that he had the intent to establish a residence at his home of selection. He is entitled to reimbursement for travel and transportation allowances to his home of record or place from which ordered to active duty if he actually performed the travel.

Master Sergeant Leroy Wordlaw, USMC (Retired):

This responds to a request for a determination of entitlement from the Defense Finance and Accounting Service, Kansas City Center (Center), regarding the travel allowances payable to Master Sergeant Leroy Wordlaw, USMC (Retired) in connection with his transfer to the Fleet Marine Corps Reserve.

Sergeant Wordlaw designated Cincinnati, Ohio, as his home of selection for the purposes of receiving travel allowances under 37 U.S.C. Sec. 404(c) and 406(g). Having been advanced funds in partial payment of these allowances, Wordlaw traveled from his last duty station at Camp Pendleton Marine Corps Base in California to Cincinnati with his wife and two children in August 1989. According to Sergeant Wordlaw, they planned to reside in Cincinnati, the place from which he was ordered to active duty. He planned to stay at his parents home only until he could find a job and buy a house. However, as a result of certain difficulties, his wife returned to California alone shortly after the move. After staying with his parents for several months, he decided to travel to Dublin, California where he established a residence with his wife.

Because Sergeant Wordlaw's family did not remain in Ohio for longer than the period of a short visit, the Center determined that he was not entitled to allowances for travel to Cincinnati. Additionally, we have been informally advised by the Center that his household goods were shipped in early August to a location in California. In response, Sergeant Wordlaw asserts that he had a bona fide intent to establish residency in Cincinnati at the time of travel.

Section 404(c) of title 37 provides retired members with the benefit of being able to select any home within the United States, and be paid full transportation allowances to that home, even if it is a greater distance to this "home of selection" than to the member's home of record or the place from which the member was ordered active duty. See, Joint Federal Travel Regulations (JFTR) U5130. We have long held that a member must intend to establish a home at the selected place at the time he performs the travel in order to qualify for the travel allowances under section 404(c). See 52 Comp.Gen. 242 (1972). Travel for the purposes of a visit, vacation or business would not be sufficient to qualify for these allowances. See 36 Comp.Gen. 774 (1957). See also Matter of Chief Yeoman Moreno, USN (Retired), B-226430, Dec. 4, 1987.

The intent to establish a bona fide residence in a place is all that is required to qualify for allowances for travel to that place under U5130, 1 JFTR and 37 U.S.C. Sec. 404(c). See 52 Comp.Gen. 242. See also Matter of Lieutenant Colonel Terrio, USA (Retired), B-207144, Oct. 5, 1982. Generally, if a member certifies upon transfer from active service that he has selected a particular place as a home, and travels to that particular place, the certification and travel will be accepted, in the absence of a clear indication to the contrary, as establishing entitlement to the travel allowance authorized by the statute and regulations. See 36 Comp.Gen. 774. However, where a member's stay in a particular place does not exceed the span of an ordinary visit, vacation, or business trip, the conclusion, in the absence of substantial evidence to the contrary, is that the travel involved was not travel to a selected home. 52 Comp.Gen. 242.

Based on the record before us substantial evidence that this travel was other than a visit has not been provided, and as a result we cannot conclude that he had the requisite intent to establish a residence at his home of selection, Cincinnati, Ohio, at the time he and his family performed the travel. Accordingly, Sergeant Wordlaw is not entitled to the travel and transportation allowances claimed. In our decision 53 Comp.Gen.963 (l974) we concluded that a member who was entitled to travel and transportation allowances to a selected home but for some reason was precluded from receiving the allowances, still retained the right to receive travel and transportation allowances to his home of record under 31 U.S.C. Sec. 404(a).

Accordingly, Sergeant Wordlaw is entitled to be reimbursed for his personal travel in accordance with paragraph U5125 to his home of record or place from which he was ordered to active duty if the travel was actually performed.