B-137052, SEP 10, 1958

B-137052, SEP 10, 1958

PRECIS-UNAVAILABLE

MR. JOHN RADU:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 27, 1958, AND ENCLOSURE, CONCERNING YOUR CLAIM FOR MILEAGE ALLOWANCE FOR THE TRAVEL OF YOU AND YOUR DEPENDENTS FROM FORT HAMILTON, NEW YORK, TO STOCKTON, CALIFORNIA, LESS THE AMOUNT ALLOWED FOR SUCH TRAVEL FROM FORT HAMILTON TO CLEVELAND, OHIO, INCIDENT TO YOUR DISCHARGE ON OCTOBER 6, 1955, AS AN ENLISTED MAN, UNITED STATES ARMY.

THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 11, 1958, FOR THE REASON THAT THE ORDERS ISSUED ON OCTOBER 6, 1955, AT FORT HAMILTON DIRECTING YOUR DISCHARGE, SHOWED THAT YOUR HOME OF RECORD WAS CLEVELAND, OHIO, AND THAT THE ADJUTANT GENERAL OF THE ARMY REPORTED THAT THE RECORDS OF HIS OFFICE HAD BEEN REVIEWED AND DID NOT SHOW THAT AN ERROR WAS MADE IN RECORDING THAT CITY AS YOUR HOME OF RECORD. SUCH REPORT WAS CONTAINED IN FIRST INDORSEMENT DATED MARCH 16, 1956, TO YOU, FROM THE ADJUTANT GENERAL. THE ORDERS OF OCTOBER 6, 1955, AUTHORIZED THE MOVEMENT OF YOUR DEPENDENTS AND THE PAYMENT OF MILEAGE TO YOUR HOME OF RECORD AT CLEVELAND. IN THE LETTER OF JULY 27, 1958, YOU SAY THAT WHILE YOUR ENLISTMENT RECORDS AT THE TIME OF YOUR ENLISTMENT IN OCTOBER 1949, AND REENLISTMENT IN OCTOBER 1952, DO SHOW THAT YOU LISTED CLEVELAND, OHIO, AS YOUR HOME OF RECORD, THE ADDRESS GIVEN IN THAT CITY WAS THAT OF YOUR SISTER AND WAS MERELY FOR CONVENIENCE IN ORDER THAT SHE MIGHT BE NOTIFIED IN THE EVENT ANYTHING HAPPENED TO YOU DURING YOUR OVERSEAS SERVICE. YOU ALSO SAY THAT YOUR ACTUAL HOME WAS AND IS STOCKTON, CALIFORNIA, AND THAT THE LISTING OF CLEVELAND, OHIO, WAS A BONA FIDE ERROR ON YOUR PART.

UNDER APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, YOU WERE ENTITLED TO MILEAGE TO YOUR HOME OF RECORD. PARAGRAPH 1150-3 OF SUCH REGULATIONS PROVIDES THAT THE TERM "HOME," AS USED IN THE REGULATIONS, MEANS THE PLACE RECORDED AS THE HOME OF THE INDIVIDUAL WHEN ORDERED INTO THE RELEVANT TOUR OF ACTIVE DUTY AND THAT TRAVEL ALLOWANCES MAY BE BASED ON THE OFFICIALLY CORRECTED RECORDING IN THOSE INSTANCES WHEN, THROUGH BONA FIDE ERROR, THE PLACE ORIGINALLY NAMED AT THE TIME OF CURRENT ENTRY INTO THE SERVICE WAS NOT IN FACT THE ACTUAL HOME. INFORMATION CONTAINED IN YOUR LETTER RECEIVED IN THE OFFICE OF THE ADJUTANT GENERAL ON FEBRUARY 3, 1956, INDICATES THAT YOU LIVED IN CLEVELAND AND RETURNED TO THAT PLACE AFTER A PERIOD OF SERVICE IN THE NAVY DURING WORLD WAR II. SEVERAL MONTHS LATER IN APRIL 1946, YOU SECURED EMPLOYMENT IN SAN FRANCISCO, CALIFORNIA, WHERE YOU REMAINED UNTIL YOUR MARRIAGE IN STOCKTON ON JULY 22, 1949. WHETHER YOU INTENDED TO MAKE YOUR FUTURE HOME IN STOCKTON, WHERE YOU HAD BEEN LIVING WITH YOUR MOTHER-IN-LAW, OR IN CLEVELAND, WAS A MATTER FOR YOUR CONSIDERATION AT THE TIME OF YOUR ENLISTMENT IN OCTOBER 1949 AND REENLISTMENT IN 1952 IN CONNECTION WITH THE MATTER OF LISTING YOUR HOME OF RECORD AT THAT TIME. IT WAS NOT IMPROPER TO LIST CLEVELAND AS YOUR HOME OF RECORD. AFTER CONSIDERATION OF THE FOREGOING AND THE FACT THAT YOUR WIFE RETURNED TO STOCKTON DURING THE PERIOD SHE DID NOT LIVE WITH YOU AT YOUR OVERSEAS STATION, THE ADJUTANT GENERAL REFUSED TO CHANGE YOUR HOME OF RECORD TO STOCKTON SINCE NO EVIDENCE OF ERROR WAS FOUND IN THE RECORDING OF YOUR HOME ADDRESS. YOUR LETTER OF MARCH 17, 1958, WITH ENCLOSURES, ADDRESSED TO THE ADJUTANT GENERAL, REQUESTING THE FURNISHING OF AN OFFICIAL DOCUMENT CHANGING YOUR HOME OF RECORD TO STOCKTON, WAS FORWARDED HERE WITHOUT THE REQUESTED DOCUMENT. WHILE YOU NOW REGARD STOCKTON AS YOUR HOME, IT CANNOT BE SAID THAT THE ACTION OF THE ADJUTANT GENERAL WAS ERRONEOUS AS A MATTER OF LAW, SINCE YOU LISTED CLEVELAND AS YOUR HOME OF RECORD A SECOND TIME IN OCTOBER 1952, MORE THAN THREE YEARS AFTER YOUR MARRIAGE.

IN THE CIRCUMSTANCES DISCLOSED, WE FIND NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF JULY 11, 1958, IS SUSTAINED.