B-130044, JUL. 17, 1961

B-130044, JUL. 17, 1961

TO COLONEL HARRY S. CRESSLER, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1961, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MAY 10, 1961, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FROM FORT HAMILTON, NEW YORK, TO TAMPA, FLORIDA, INCIDENT TO YOUR RETIREMENT DECEMBER 1, 1957.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT UNDER THE PROVISIONS OF PARAGRAPH 4158-1A, JOINT TRAVEL REGULATIONS, MEMBERS WHO ARE RETIRED MUST PERFORM TRAVEL TO HOME OF SELECTION WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY TO BE ENTITLED TO MILEAGE FOR SUCH TRAVEL. SINCE YOU TRAVELED TO YOUR HOME OF SELECTION IN TAMPA, FLORIDA, NOVEMBER 19 TO 23, 1959, WHICH WAS MORE THAN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY ON NOVEMBER 30, 1957, PAYMENT WAS NOT AUTHORIZED.

IN YOUR LETTER YOU SAY THAT YOU WERE ORDERED TO ACTIVE DUTY ON OR ABOUT NOVEMBER 15, 1940, FROM KEY WEST, FLORIDA, AND REMAINED ON ACTIVE DUTY WITH NO BREAK IN SERVICE UNTIL DECEMBER 1, 1957. YOU CONTEND THAT YOU ARE ENTITLED TO TRAVEL PAY BACK TO KEY WEST IN ACCORDANCE WITH PROVISIONS OF LAW IN FORCE AT THE TIME YOU WERE ORDERED TO ACTIVE DUTY. FURTHERMORE, AT THE TIME OF YOUR RETIREMENT YOU SAY YOU TRIED TO FILE A VOUCHER FOR TRAVEL PAY, BUT YOU WERE ADVISED BY A FINANCE OFFICER THAT YOU COULD NOT CLAIM TRAVEL PAY UNTIL YOU ARRIVED HOME.

THE ACCOUNTING OFFICERS HAVE LONG HELD THE VIEW THAT TRAVEL TO A SELECTED HOME MUST BE PERFORMED WITHIN A REASONABLE TIME FOLLOWING RETIREMENT TO ENTITLE MILITARY PERSONNEL TO PAYMENT OF TRAVEL EXPENSES AND THAT A REASONABLE TIME IN SUCH CIRCUMSTANCES SHOULD NOT EXCEED ONE YEAR. SEE 8 COMP. GEN. 327; 36 ID. 781; AND 40 ID. 375. SUBSECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES IN PART THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED WITH PAY MAY SELECT HIS HOME UPON RETIREMENT FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION. PARAGRAPH 4158-1A OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SUCH SUBSECTION, RESTATES THE RULE STATED ABOVE BY PROVIDING THAT A MEMBER WHO IS RETIRED WITH PAY MAY SELECT A HOME AND RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES THERETO FROM HIS LAST DUTY STATION PROVIDING TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. IT PROVIDES FURTHER THAT ADVANCE PAYMENT OF TRAVEL ALLOWANCES TO THE SELECTED HOME IS NOT AUTHORIZED.

WHILE THE PROVISIONS OF LAW IN FORCE AT THE TIME YOU WERE CALLED TO ACTIVE DUTY IN 1940 PROVIDED FOR PAYMENT OF TRAVEL ALLOWANCE TO A MEMBER'S HOME UPON HIS RELEASE FROM ACTIVE DUTY AND TRAVEL THERETO, YOU ARE ADVISED THAT AT THE TIME YOU WERE CALLED TO ACTIVE DUTY THE ONE-YEAR LIMITATION PERTAINING TO TRAVEL UPON RETIREMENT OF REGULAR OFFICERS APPLIED EQUALLY TRAVEL OF OFFICERS OF THE RESERVE CORPS RELEASED FROM ACTIVE DUTY. SEE 24 COMP. GEN. 291-298. BUT HOWEVER THAT MAY BE, YOUR RIGHT TO A TRAVEL ALLOWANCE INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE RETIRED LIST IS FOR DETERMINATION UNDER THE LAWS AND REGULATIONS IN EFFECT AT THAT TIME. WHEN YOU WERE RELEASED FROM ACTIVE DUTY NOVEMBER 30, 1957, AND TRANSFERRED TO THE RETIRED LIST SUCH RIGHTS WERE GOVERNED BY THE PROVISIONS OF PARAGRAPH 4158-1, JOINT TRAVEL REGULATIONS, AS EXPLAINED ABOVE.

IN VIEW OF THE FOREGOING, SINCE YOU DID NOT TRAVEL TO YOUR HOME OF SELECTION IN TAMPA, FLORIDA, UNTIL NOVEMBER 1959, WHICH IS MORE THAN ONE YEAR FROM THE DATE OF YOUR RELEASE FROM ACTIVE DUTY, NOVEMBER 30, 1957, THERE IS NO AUTHORITY UNDER APPLICABLE LAW AND REGULATIONS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MAY 10, 1961, IS SUSTAINED.