B-144434, FEB. 21, 1961

B-144434, FEB. 21, 1961

TO MR. MICHAEL J. TESLAR:

YOUR LETTER DATED OCTOBER 20, 1960, IN EFFECT REQUESTS REVIEW OF SETTLEMENT DATED OCTOBER 7, 1960, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCES FROM POITIERS, FRANCE, TO BARCELONA, SPAIN, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY AS SERGEANT FIRST CLASS (E-6).

BY SPECIAL ORDERS NO. 186, DATED SEPTEMBER 17, 1958, YOU WERE RELIEVED OF YOUR ASSIGNMENT AND DUTY AT HEADQUARTERS COMPANY, UNITED STATES ARMY COMMUNICATIONS ZONE, BASE SECTION (FIFTH LOGISTIC COMMAND), POITIERS, FRANCE, TRANSFERRED TO THE UNITED STATES ARMY RESERVE, AND PLACED ON THE RETIRED LIST ON OCTOBER 1, 1958. THE ORDERS FURTHER PROVIDED THAT AT THE PROPER TIME YOU SHOULD PROCEED TO YOUR HOME OF SELECTION AND COMPLETE TRAVEL WITHIN ONE YEAR. YOU STATE THAT WHEN YOU RETIRED YOU DROVE YOUR AUTOMOBILE TO FRANKFURT, GERMANY, THEN TOURED EUROPE, INCLUDING BARCELONA, SPAIN, WHERE YOU SAY YOU LIVED FOR A LONG TIME. BY LETTER ORDERS 9-17, DATED SEPTEMBER 21, 1959, YOU WERE PORT CALLED TO FRANKFURT, GERMANY, ON SEPTEMBER 29, 1959, FOR PROCESSING AND MOVEMENT TO CONTINENTAL UNITED STATES BY GOVERNMENT AIR. AN INDORSEMENT ON YOUR ORDERS DATED SEPTEMBER 30, 1959, EVIDENCES YOUR ARRIVAL ON THAT DATE AT MCGUIRE AIR FORCE BASE, NEW JERSEY, AND YOUR RELEASE FROM FORT HAMILTON, NEW YORK. YOU THEN TRAVELED BY TRAIN TO MIAMI, FLORIDA, WHERE YOU SAY YOU WENT FOR YOUR HEALTH.

YOU CLAIMED TRAVEL ALLOWANCES FROM POITIERS, FRANCE, TO MIAMI, FLORIDA, BASED ON YOUR CERTIFICATION THAT SUCH TRAVEL HAD BEEN PERFORMED EN ROUTE TO YOUR HOME OF SELECTION, 86 CORNWALL, PITTSBURG, CALIFORNIA. THIS CLAIM WAS ADMINISTRATIVELY DISALLOWED FOR THE REASON THAT THE GOVERNING REGULATIONS DO NOT PROVIDE FOR REIMBURSEMENT FOR THE PORTION OF TRAVEL COMPLETED BY THE EXPIRATION DATE OF THE TRAVEL PERIOD AUTHORIZED FOLLOWING RETIREMENT BUT ONLY FOR TRAVEL IF COMPLETED TO THE HOME SELECTED WITHIN SUCH PERIOD.

THEREAFTER, YOU CERTIFIED THAT BARCELONA, SPAIN, WAS YOUR HOME OF SELECTION TO WHICH YOU HAD TRAVELED FROM POITIERS, FRANCE, DURING THE PERIOD SEPTEMBER 30 TO NOVEMBER 12, 1958, AND YOU CLAIMED TRAVEL ALLOWANCES TO THAT CITY ON THE BASIS THAT YOU HAD TRAVELED TO BARCELONA DURING THE YEAR FOLLOWING YOUR RETIREMENT, AND PRESUMABLY ON THE FURTHER FACT THAT YOU HAD RETURNED TO THAT CITY AND ARE NOW RESIDING THERE. YOUR CLAIM FOR THE TRAVEL FROM POITIERS TO BARCELONA WAS DISALLOWED BY THE SETTLEMENT OF OCTOBER 7, 1960, FOR THE REASON THAT SINCE YOU HAD PREVIOUSLY SELECTED PITTSBURG, CALIFORNIA, AS YOUR HOME FOR PURPOSES OF ENTITLEMENT TO TRAVEL ALLOWANCES ON RETIREMENT, YOU COULD NOT LATER CLAIM A DIFFERENT PLACE AS YOUR SELECTED HOME EVEN THOUGH YOU HAD NOT PERFORMED TRAVEL TO THE PLACE OF ORIGINAL SELECTION WITHIN THE ALLOTTED TIME LIMIT OF ONE YEAR.

THE TRAVEL AND TRANSPORTATION ALLOWANCES OF RETIRED MEMBERS OF THE UNIFORMED SERVICES TO HOME OF SELECTION AS AUTHORIZED BY SECTION 303 (A) AND (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A) (C) IS CONTROLLED BY THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150-3B OF THOSE REGULATIONS DEFINES THE TERM "HOME OF SELECTION" TO MEAN THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH 4158 1A PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED OR SEPARATED UNDER CIRCUMSTANCES SUCH AS THOSE INVOLVED IN YOUR CASE MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. IT IS ALSO PROVIDED THAT ONCE A HOME IS SELECTED AND TRAVEL THERETO IS PERFORMED, SUCH SELECTION IS IRREVOCABLE. 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 COMPLETED, 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 THAT PLACE. IT DOES NOT APPEAR THAT YOU GAVE ANY INDICATION AT THE TIME OF YOUR RETIREMENT THAT YOU ELECTED TO RESIDE ABROAD. HAD YOU INTENDED TO RETIRE TO BARCELONA, SPAIN, AT THE TIME YOU FIRST WENT THERE YOU WOULD HAVE PERFORMED ALL TRAVEL TO WHICH ENTITLED AT GOVERNMENT EXPENSE UPON YOUR ARRIVAL AT THAT POINT, AND YOU WOULD HAVE HAD NO REASON TO REQUEST RETURN TO THE UNITED STATES BEFORE OCTOBER 1, 1959. THE FACT THAT YOU DID APPLY FOR THE TRAVEL TO THE UNITED STATES ON THE BASIS OF YOUR RIGHT TO TRAVEL TO A SELECTED HOME IN CONNECTION WITH YOUR RETIREMENT WOULD SEEM TO NEGATE ANY INTENT ON YOUR PART TO RESIDE PERMANENTLY IN BARCELONA WHEN YOU FIRST PROCEEDED TO THAT PLACE. SINCE YOU DID NOT COMPLETE TRAVEL TO PITTSBURG, CALIFORNIA, THE PLACE INITIALLY CERTIFIED AS THE PLACE WHERE YOU INTENDED TO ESTABLISH A HOME WITHIN THE TIME ALLOWED FOR SUCH SELECTION AND TRAVEL YOU FORFEITED ALL RIGHT TO TRAVEL ALLOWANCES TO WHICH YOU WOULD OTHERWISE HAVE BEEN ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 4158-1A, OF THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 7, 1960, MUST BE SUSTAINED.

WITH REFERENCE TO YOUR INQUIRY CONCERNING YOUR CLAIM FOR TRANSPORTATION FROM POITIERS, FRANCE, TO FRANKFURT, GERMANY, THAT TRAVEL MUST BE CONSIDERED AN INTEGRAL PART OF YOUR UNCOMPLETED TRAVEL TO YOUR HOME OF SELECTION. AS EXPLAINED ABOVE NO ENTITLEMENT TO TRAVEL ALLOWANCE EXISTS IN THE CASE OF SUCH UNCOMPLETED TRAVEL.

COPIES OF CERTAIN PAPERS SUBMITTED IN CONNECTION WITH YOUR CLAIM ARE ENCLOSED HEREWITH IN COMPLIANCE WITH YOUR REQUEST.