B-119661, OCT 6, 1954

B-119661, OCT 6, 1954

PRECIS-UNAVAILABLE

MR. LESTER D. TRIMBLE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1954, AND SUBSEQUENT LETTERS WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 10, 1954, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCE ALLEGED TO BE DUE FOR TRAVEL PERFORMED FROM ATLANTA, GEORGIA, TO MANSFIELD, OHIO, INCIDENT TO YOUR RETIREMENT FROM THE REGULAR ARMY ON JANUARY 31, 1951.

THE RECORD SHOWS THAT IN A LETTER OF MARCH 26, 1952, TO THE ARMY FINANCE CENTER, ST. LOUIS, MISSOURI, YOU STATED THAT IN NOVEMBER 1950 YOU WERE PLACED ON DETACHED SERVICE FROM WALTER REED GENERAL HOSPITAL TO AWAIT RETIREMENT AND THAT YOU RETIRED EFFECTIVE JANUARY 31, 1951. ENCLOSED WITH YOUR LETTER OF JULY 22, 1954, TO THIS OFFICE WAS A COPY OF THE MEMORANDUM TO YOU ISSUED BY WALTER REED ARMY HOSPITAL, ARMY MEDICAL CENTER, WASHINGTON, D.C., ADVISING THAT YOU WERE PLACED ON A DETACHED SERVICE STATUS, AT ANY ADDRESS YOU DESIRED, AT NO EXPENSE TO THE GOVERNMENT, AND THAT YOU WOULD REMAIN ON DETACHED SERVICE UNTIL FINAL SEPARATION WAS EFFECTED UNLESS IT BECAME NECESSARY TO RECALL YOU FOR FURTHER HEARINGS BY A PHYSICAL EVALUATION BOARD. SUCH ACTION APPARENTLY WAS TAKEN FOLLOWING A DETERMINATION BY A PHYSICAL EVALUATION BOARD THAT YOU WERE UNFIT FOR FURTHER ACTIVE MILITARY SERVICE. PARAGRAPH 8 OF SPECIAL ORDERS NO. 8, ARMY MEDICAL CENTER, WASHINGTON, D.C., DATED JANUARY 10, 1951, ANNOUNCED YOUR RETIREMENT FROM THE REGULAR ARMY EFFECTIVE JANUARY 31, 1951. THOSE ORDERS IT WAS STATED THAT YOU WERE THEN AT 283 PARKWAY DRIVE, N.E., ATLANTA, GEORGIA, AND THAT YOU HAD SELECTED THAT PLACE AS HOME OF FUTURE RESIDENCE UPON RETIREMENT. YOUR CLAIM FOR TRAVEL ALLOWANCE WAS DISALLOWED IN THE SETTLEMENT OF FEBRUARY 10, 1954, FOR THE REASON THAT SINCE THE ORDERS OF JANUARY 10, 1951 - IN WHICH IT WAS STATED THAT YOU HAD SELECTED ATLANTA, GEORGIA, AS YOUR FUTURE HOME UPON RETIREMENT - WERE RECEIVED BY YOU AT ATLANTA, GEORGIA, THERE WAS NO NECESSITY FOR THE PERFORMANCE OF ANY TRAVEL AND, CONSEQUENTLY, THERE WAS NO AUTHORITY FOR THE PAYMENT OF THE TRAVEL ALLOWANCE CLAIMED.

SECTION 126 OF THE NATIONAL DEFENSE ACT, 39 STAT. 217, AS AMENDED BY SECTION 7 OF THE ACT OF AUGUST 4, 1949, 63 STAT. 558, PROVIDES AS FOLLOWS:

"AN ENLISTED PERSON OF THE ARMY, NAVY, OR MARINE CORPS, INCLUDING RESERVE COMPONENTS THEREOF, UPON DISCHARGE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, RETIREMENT, OR RELIEF FROM ACTIVE DUTY, SHALL, UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE FOR PERSONNEL UNDER HIS JURISDICTION, RECEIVE A MONEY ALLOWANCE OF 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO HIS HOME, OR PLACE OF ACCEPTANCE FOR ACTIVE DUTY, OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE MOST APPROPRIATE BY THE HEAD OF THE DEPARTMENT CONCERNED. ***"

PARAGRAPH 50A(2) ARMY REGULATIONS 35-4810 DATED JUNE 1, 1948, PROVIDES FOR TRAVEL ALLOWANCE TO PERSONNEL OF THE REGULAR ARMY UPON RETIREMENT "TO PLACE OF ACCEPTANCE OF ENLISTMENT OR HOME." PARAGRAPH 49 OF SAID REGULATIONS PROVIDES THAT IN THE CASE OF ENLISTED MEN OF THE REGULAR ARMY UPON RETIREMENT, THE TERM "HOME" MEANS THE HOME IN THE UNITED STATES OR ONE OF ITS POSSESSIONS OR IN A FOREIGN COUNTRY THEY MAY SELECT AS FUTURE RESIDENCE.

IN YOUR LETTER REQUESTING REVIEW YOU CONTEND THAT YOU HAD SELECTED MANSFIELD, OHIO, AND NOT ATLANTA, GEORGIA, AS YOUR HOME UPON RETIREMENT AND THAT YOU HAD TRAVELED TO ATLANTA FOR THE PURPOSE OF VISITING SOME FRIENDS. HOWEVER, THE RECORD SHOWS THAT BY LETTER DATED DECEMBER 15, 1950, THE DEPARTMENT OF THE ARMY ACKNOWLEDGED RECEIPT OF YOUR POST CARDS DATED NOVEMBER 22 AND DECEMBER 7, 1950, AND REQUESTED ADVICE AS TO YOUR PERMANENT ADDRESS, AND THAT BY LETTER DATED DECEMBER 29, 1950, WRITTEN FROM 283 PARKWAY DRIVE, N.E., ATLANTA, GEORGIA, YOU ADVISED THE DEPARTMENT OF THE ARMY THAT "THE ADDRESS GIVEN ABOVE WILL BE FROM THIS DATE ON MY PERMANENT ADDRESS ***." IN ADDITION, THE FILE CONTAINS LETTERS FROM YOU DATED JANUARY 21 AND FEBRUARY 19, 1951, AND A POST CARD DATED MARCH 18, 1951, WRITTEN FROM THAT ADDRESS AT ATLANTA, GEORGIA. BY POST CARD DATED APRIL 7, 1951, YOU INFORMED THE DEPARTMENT OF THE ARMY THAT YOU HAD CHANGED YOUR ADDRESS TO RFD #1, LEXINGTON, OHIO. ALSO, IN YOUR LETTER OF MARCH 18, 1954, REQUESTING REVIEW OF YOUR CLAIM YOU SAY THAT YOU HAD MADE MANSFIELD, OHIO, YOUR HOME SINCE APRIL 6, 1951. WHILE YOU STATE THAT YOU TRAVELED AT PERSONAL EXPENSE FROM ATLANTA, GEORGIA, TO MANSFIELD, OHIO, BETWEEN FEBRUARY 2 AND 3, 1951, NO PROOF HAS BEEN SUBMITTED TO SHOW THAT YOU ACTUALLY PERFORMED SUCH TRAVEL AT THAT TIME AND IT WOULD APPEAR FROM THE DATES OF YOUR CORRESPONDENCE THAT YOU CONTINUED TO RESIDE AT ATLANTA AND MAKE YOUR HOME THERE UNTIL YOU MOVED TO LEXINGTON, OHIO, ON OR ABOUT APRIL 6, 1951. IN VIEW OF THESE CIRCUMSTANCES, IT MUST BE CONCLUDED ON THE PRESENT RECORD THAT YOU HAD SELECTED ATLANTA, GEORGIA, AS YOUR HOME UPON RETIREMENT AS INDICATED IN YOUR RETIREMENT ORDERS. IT LONG HAS BEEN HELD THAT MEMBERS OF THE REGULAR SERVICE ARE AUTHORIZED TO SELECT A HOME UPON RETIREMENT TO WHICH THEY ARE ENTITLED TO MILEAGE. 8 COMP. GEN. 327; 24 ID. 291; 25 ID. 6 AND 493. HOWEVER, A SELECTION HAVING BEEN MADE, FURTHER TRAVEL IS NOT AUTHORIZED AT PUBLIC EXPENSE. ALSO, IT CONSISTENTLY HAS BEEN HELD THAT THE PAYMENT OF MILEAGE IS NOT AUTHORIZED WHERE THE MEMBER IS AT THE PLACE SELECTED BY HIM AS HIS HOME UPON RETIREMENT. COMP. GEN. 625; 19 ID. 422; AND SEE ELMORE V. UNITED STATES, 61 C. CLS. 173. SINCE THE ORDERS PLACING YOU ON DETACHED SERVICE FROM WALTER REED ARMY HOSPITAL AUTHORIZED YOU TO PROCEED TO ANY PLACE YOU DESIRED, AT NO EXPENSE TO THE GOVERNMENT, AND AWAIT DISPOSITION - SUCH ACTION PRESUMABLY HAVING BEEN TAKEN PRIMARILY FOR YOUR PERSONAL CONVENIENCE - AND SINCE IT APPEARS FROM THE PRESENT RECORD THAT PURSUANT TO SUCH AUTHORITY YOU PROCEEDED TO ATLANTA AND HAD SELECTED THAT AS YOUR HOME AT THE TIME OF RETIREMENT, NO RIGHT TO A TRAVEL ALLOWANCE ACCRUED INCIDENT TO YOUR RETIREMENT. COMPARE 33 COMP. GEN. 373.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 10, 1954, MUST BE SUSTAINED.