B-142264, MAY 10, 1960

B-142264, MAY 10, 1960

TO MR. FORREST H. BUTTERS:

ON FEBRUARY 23, 1960, YOU REQUESTED REVIEW OF OUR SETTLEMENT DATED DECEMBER 21, 1959, WHICH DISALLOWED YOUR CLAIM FOR PERSONAL TRAVEL AND THE TRANSPORTATION EXPENSES FOR YOUR DEPENDENT WIFE INCIDENT TO YOUR RETIREMENT FROM THE ARMY AS A WARRANT OFFICER ON JUNE 1, 1959.

BY ORDERS DATED MAY 22, 1959, YOU WERE RELEASED FROM ASSIGNMENT AND DUTY AT FORT HOOD, TEXAS, ON MAY 31, 1959, AND RETIRED FROM ACTIVE SERVICE EFFECTIVE JUNE 1, 1959. ON AUGUST 22, 1959, YOU TRAVELED WITH YOUR WIFE FROM KILLEEN, TEXAS, NEAR YOUR FORMER ACTIVE DUTY STATION AT FORT HOOD, TEXAS, TO ALBUQUERQUE, NEW MEXICO, THE PLACE DESIGNATED AS YOUR HOME OF SELECTION. THE RECORD INDICATES THAT WHILE YOU PURCHASED A HOUSE IN ALBUQUERQUE SOME TIME PRIOR TO YOUR RETIREMENT, YOU DID NOT IN FACT ESTABLISH YOUR HOME THERE. INSTEAD YOU RETURNED TO KILLEEN, TEXAS, WHERE YOU HAVE STATED YOU INTEND TO REMAIN FOR AN INDEFINITE PERIOD WHICH WILL PROBABLY BE TWO OR THREE YEARS. IT APPEARS TO BE YOUR VIEW THAT ALBUQUERQUE SHOULD BE REGARDED AS YOUR SELECTED HOME BECAUSE YOU OWN A HOUSE THERE AND PERFORMED THE TRAVEL TO IT. YOU ALSO CONTEND YOU SHOULD BE AUTHORIZED TO SHIP YOUR HOUSEHOLD EFFECTS THERE AT GOVERNMENT EXPENSE.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION. SECTION 303 (C) SIMILARLY PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS AND FOR HIS BAGGAGE AND HOUSEHOLD EFFECTS TO THE HOME SELECTED FOR ALLOWANCE PURPOSES UNDER SUBSECTION (A) OF THAT SECTION.

THE UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED ARE PROMULGATED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150-3 (B) PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED IN THESE REGULATIONS, MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH 4158-1A PROVIDES THAT THE MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 7012-1A PROVIDES FOR DEPENDENTS TRANSPORTATION UPON RETIREMENT IF TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER MEMBER'S TERMINATION OF ACTIVE DUTY AND PARAGRAPH 8260-1 PROVIDES FOR SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IF SUCH EFFECTS ARE TURNED OVER TO A TRANSPORTATION OFFICER OR CARRIER FOR SHIPMENT WITHIN ONE YEAR FOLLOWING TERMINATION OF ACTIVE DUTY.

OUR DECISIONS HAVE HELD THAT THE PURPOSE OF THE STATUTE AND REGULATIONS IS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR A MEMBER, HIS DEPENDENTS, AND HOUSEHOLD EFFECTS, TO THE PLACE WHERE HE GOES TO RESIDE FOLLOWING RETIREMENT, AND UNTIL SUCH A PLACE HAS BEEN SELECTED AND TRAVEL TO IT FOR THAT PURPOSE HAS BEEN PERFORMED, NO RIGHT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES ACCRUES. 36 COMP. GEN. 774.

THE INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE, AT THE TIME OF TRAVEL THERETO BY A MEMBER, IS A NECESSARY CONDITION PRECEDENT TO THE RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES TO WHICH A MEMBER SEEKS REIMBURSEMENT WAS TO A PLACE SELECTED BY HIM AS HIS HOME, IS HIS CONTINUED RESIDENCE AT THAT PLACE. WHEN, HOWEVER, A MEMBER DOES NOT CLEARLY ESTABLISH HIS INTENTION BY TAKING UP AN EXTENDED RESIDENCE AT THE PLACE TO WHICH MILEAGE IS CLAIMED BUT GOES ON TO SOME OTHER PLACE, HIS INTENT NECESSARILY MUST BE INFERRED FROM THE SURROUNDING CIRCUMSTANCES. IN CASES IN WHICH THE 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 OTHER CONVINCING EVIDENCE TO THE CONTRARY, IS THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME.

THE PRESENT RECORD INDICATES THAT YOU DID NOT TRAVEL TO ALBUQUERQUE FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE THERE. YOUR OWN STATEMENTS SHOW YOU RETURNED TO KILLEEN, SHORTLY AFTER YOUR TRAVEL TO ALBUQUERQUE, WHERE YOU APPARENTLY THEN INTENDED TO REMAIN FOR TWO OR THREE YEARS. ALSO, THERE IS NO EVIDENCE THAT YOU MADE ANY ATTEMPT TO HAVE YOUR HOUSEHOLD EFFECTS SHIPPED TO ALBUQUERQUE AT THE TIME OF YOUR TRAVEL AND YOUR PRESENT LETTER SHOWS THAT YOUR RESIDENCE IS STILL IN KILLEEN, TEXAS. THE PRESENT RECORD IS CONSISTENT WITH THE VIEW THAT YOU INTEND TO MAKE ALBUQUERQUE YOUR HOME AT SOME FUTURE DATE. IF YOU AND YOUR DEPENDENT TRAVEL TO ALBUQUERQUE, ESTABLISH A BONA FIDE RESIDENCE, AND MOVE YOUR HOUSEHOLD EFFECTS TO SUCH RESIDENCE, WITHIN THE TIME LIMITS SPECIFIED IN THE REGULATIONS, YOU WILL BE ENTITLED TO REIMBURSEMENT FOR THE TRAVEL AND TRANSPORTATION EXPENSES AS PROVIDED BY THE REGULATION. HOWEVER, THE FACT THAT YOU OWN A HOUSE IN ALBUQUERQUE AND THAT YOU PERFORMED TRAVEL TO THAT PLACE IN AUGUST 1959, AND OCCASIONALLY THEREAFTER, DOES NOT SATISFY THE ACTUAL RESIDENCE REQUIREMENTS AND CANNOT PROVIDE A LEGAL BASIS TO ALLOW YOUR CLAIM.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF DECEMBER 21, 1959, IS SUSTAINED.