B-144812, MAR. 7, 1961

B-144812, MAR. 7, 1961

TO LIEUTENANT COLONEL JOSE A. MURATTI, AUS:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 14, 1960, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 24, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF TRAVEL PERFORMED BY YOU AND YOUR DEPENDENTS BY COMMERCIAL AIRCRAFT FROM NEW YORK, NEW YORK, TO SAN JUAN, PUERTO RICO, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

PURSUANT TO YOUR APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 3911, PARAGRAPH 33, SPECIAL ORDERS NO. 92, DATED MAY 9, 1960, RELIEVED YOU FROM ASSIGNMENT AND DUTY AT FORT GEORGE G. MEADE, MARYLAND, JUNE 30, 1960, AND PLACED YOU ON THE UNITED STATES ARMY RETIRED LIST, JULY 1, 1960. YOU LEFT GLEN BURNIE, MARYLAND, JULY 1, 1960, AND TRAVELED WITH YOUR DEPENDENTS IN YOUR OWN AUTOMOBILE TO NEW YORK, NEW YORK. YOU LEFT NEW YORK, NEW YORK, JULY 6, 1960, AND TRAVELED WITH YOUR DEPENDENTS BY COMMERCIAL AIRCRAFT TO SAN JUAN, PUERTO RICO, ARRIVING THERE JULY 7, 1960. YOU CLAIMED TRAVEL ALLOWANCE FOR THE LAND TRAVEL INVOLVED AND REIMBURSEMENT OF COST OF AIR FARE IN CONNECTION WITH THIS TRAVEL. SETTLEMENT DATED OCTOBER 24, 1960, ALLOWED MILEAGE FOR YOUR TRAVEL FROM FORT GEORGE G. MEADE, MARYLAND, TO NEW YORK, NEW YORK, AND MILEAGE FOR TRAVEL OF YOUR DEPENDENTS FROM GLEN BURNIE, MARYLAND, TO NEW YORK, NEW YORK. HOWEVER, YOUR CLAIM FOR REIMBURSEMENT FOR TRANSOCEANIC TRAVEL BY COMMERCIAL AIRCRAFT WAS DISALLOWED FOR THE REASON THAT GOVERNMENT TRANSPORTATION BETWEEN NEW YORK, NEW YORK, AND SAN JUAN, PUERTO RICO, WAS AVAILABLE AND SHOULD HAVE BEEN UTILIZED.

YOU HAVE ASKED RECONSIDERATION OF YOUR CLAIM FOR PAYMENT OF TRAVEL BY COMMERCIAL MEANS FROM NEW YORK, NEW YORK, TO PUERTO RICO, ON THE GROUND THAT YOU WERE ENTITLED TO TRAVEL TO YOUR HOME AND SINCE YOU ARE A NATIVE OF PUERTO RICO THAT PLACE SHOULD NOT HAVE BEEN CONSIDERED AS AN OVERSEAS AREA IN YOUR CASE.

UPON YOUR RETIREMENT JULY 1, 1960, YOU BECAME ENTITLED UNDER THE PROVISIONS OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C) AND PARAGRAPH 4158 AND 7012 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE STATUTE, TO SELECT YOUR HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FOR YOURSELF AND YOUR DEPENDENTS FROM YOUR LAST DUTY STATION IN ACCORDANCE WITH PARAGRAPH 4151 OR 4159, AS APPLICABLE, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 4159, APPLICABLE IN YOUR CASE, PROVIDES THAT A MEMBER UNDER PERMANENT CHANGE OF STATION ORDERS TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES WILL BE ENTITLED TO MILEAGE FOR THE OFFICIAL DISTANCE FROM THE OLD PERMANENT STATION TO THE APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING THE OLD DUTY STATION, TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE, OTHERWISE GOVERNMENT PROCURED TRANSPORTATION OR REIMBURSEMENT FOR TRANSPORTATION PROCURED AT PERSONAL EXPENSE FOR THE TRANSOCEANIC TRAVEL INVOLVED WHEN GOVERNMENT TRANSPORTATION IS NOT AVAILABLE AND MILEAGE FOR THE OFFICIAL DISTANCE FROM THE APPROPRIATE AERIAL OR WATER PORT OF DEBARKATION SERVING THE NEW STATION AND THE NEW PERMANENT STATION.

UNDER SUCH PROVISIONS OF LAW AND REGULATIONS AN ELIGIBLE MEMBER OF THE UNIFORMED SERVICES MAY ON RETIREMENT PERFORM TRAVEL TO ANY PLACE IN THE WORLD HE SELECTS AS HIS HOME OF RETIREMENT AND, WITHIN CERTAIN LIMITATIONS, RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION AS PRESCRIBED BY THE REGULATIONS. THE RIGHT TO TRANSPORTATION TO HOME OF SELECTION UPON RETIREMENT IS NOT A FIXED ALLOWANCE TO WHICH A MEMBER IS ENTITLED. WHEN A RETIRED MEMBER SELECTS A HOME AND TRAVELS TO IT FOR THE PURPOSE OF ESTABLISHING A RESIDENCE WITHIN ONE YEAR FROM THE DATE OF RELIEF FROM ACTIVE DUTY, HE IS ENTITLED TO TRAVEL ALLOWANCES AS FOR A PERMANENT CHANGE OF STATION. A MEMBER OF THE UNIFORMED SERVICES IS NOT CONSIDERED AS HAVING ANY PERMANENT RESIDENCE OR HOME WITHIN THE USUAL SENSE BUT MUST GO WHERE EXIGENCIES OF THE SERVICE DEMAND AND WHILE IN THE SERVICE HE RARELY IS STATIONED IN ANY PLACE LONG ENOUGH TO ESTABLISH A HOME OF HIS OWN CHOICE. THEREFORE, A MEMBER OF THE UNIFORMED SERVICES UPON RETIREMENT IS GIVEN A YEAR IN WHICH TO CHOOSE HIS HOME OF RETIREMENT AND IN THIS RESPECT YOU WERE IN NO DIFFERENT POSITION THAN ANY OTHER RETIRING MEMBER OF THE SERVICE. THE FACT THAT YOU ARE A NATIVE OF PUERTO RICO DOES NOT CHANGE ITS CHARACTER AS AN OVERSEAS AREA OR OTHERWISE AFFECT YOUR RIGHT TO TRAVEL ALLOWANCES TO THAT PLACE AS YOUR HOME OF SELECTION UPON RETIREMENT. THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, HAS REPORTED THAT GOVERNMENT TRANSPORTATION OR GOVERNMENT PROCURED TRANSPORTATION AS PROVIDED FOR IN PARAGRAPH 4159 OF THE JOINT TRAVEL REGULATIONS WAS AVAILABLE AND WOULD HAVE BEEN PROVIDED HAD YOU MADE A FORMAL REQUEST. IN VIEW OF THE PLAIN REQUIREMENTS THAT GOVERNMENT TRANSPORTATION MUST BE UTILIZED FOR TRANSOCEANIC TRAVEL, WHEN AVAILABLE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE COST TO YOU OF THE COMMERCIAL AIR FARES FOR YOU AND YOUR DEPENDENTS FOR TRAVEL FROM NEW YORK, NEW YORK, TO SAN JUAN, PUERTO RICO.

HOWEVER, UNDER THE LAW AND REGULATIONS YOU WERE ENTITLED TO TRANSPORTATION IN KIND FOR YOU AND YOUR DEPENDENTS TO YOUR HOME OF SELECTION, OR TO REIMBURSEMENT THEREFOR UNLESS THE USE OF GOVERNMENT TRANSPORTATION WAS SPECIFICALLY DIRECTED. GOVERNMENT TRANSPORTATION WAS NOT SPECIFICALLY DIRECTED IN YOUR CASE AND SINCE YOU WOULD HAVE BEEN FURNISHED GOVERNMENT TRANSPORTATION OR GOVERNMENT PROCURED TRANSPORTATION HAD YOU MADE PROPER APPLICATION THEREFOR, IT IS CONCLUDED THAT YOU MAY BE ALLOWED THE AMOUNT IT WOULD HAVE COST THE ARMY TO RETURN YOU AND YOUR DEPENDENTS TO YOUR HOME BY THE MEANS OF THE GOVERNMENT TRANSPORTATION WHICH WOULD HAVE BEEN FURNISHED YOU. A SETTLEMENT FOR THE AMOUNT DUE YOU ON THIS BASIS WILL BE ISSUED IN DUE COURSE.