B-147372, JAN. 19, 1962

B-147372, JAN. 19, 1962

TO HOUSTON RAY BURKLOW, SKC, USN, RETIRED:

REFERENCE IS MADE TO YOUR RECENT COMMUNICATION, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 19, 1961, WHICH DISALLOWED YOUR CLAIM FOR ALLOWANCES FOR PERSONAL TRAVEL AND DEPENDENTS' TRANSPORTATION FROM OCALA, FLORIDA, TO SAN FRANCISCO, CALIFORNIA, DURING THE PERIOD APRIL 27 TO MAY 3, 1961, IN CONNECTION WITH YOUR TRANSFER AS CHIEF STOREKEEPER, UNITED STATES NAVY, FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE RETIRED LIST, EFFECTIVE APRIL 1, 1961.

YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT YOU HAD RECEIVED THE TRAVEL ALLOWANCES TO WHICH YOU WERE ENTITLED AT THE TIME OF YOUR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 1, 1956, UNDER ORDERS DATED JULY 26, 1956, WHEN YOUR FAMILY WAS TRANSPORTED AT GOVERNMENT EXPENSE TO EVANSVILLE, INDIANA, YOUR HOME OF RECORD, AND FOR THE FURTHER REASON THAT THE TRAVEL TO SAN FRANCISCO WAS NOT PERFORMED WITHIN ONE YEAR AFTER TERMINATION OF YOUR ACTIVE DUTY. YOU STATE THAT YOUR DEPENDENTS TRAVELED TO EVANSVILLE AT GOVERNMENT EXPENSE PURSUANT TO ORDERS ASSIGNING YOU TO DUTY AT GREAT LAKES, ILLINOIS, PRIOR TO YOUR RELEASE FROM ACTIVE DUTY AND PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, AND ASSERT YOUR CLAIM ON THE BASIS OF ORDERS TRANSFERRING YOU TO THE RETIRED LIST FROM THE TEMPORARY DISABILITY RETIRED LIST "IN CONJUNCTION WITH PARAGRAPH 5 (A) AND 5 (B) OF EXCERPTS FROM JTR," ISSUED TO YOU AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY, INASMUCH AS YOU CONSIDER YOU WERE NOT ENTITLED TO SELECT A HOME WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

REGARDING YOUR CONTENTION AS TO THE TIME OF YOUR DEPENDENTS' TRAVEL TO EVANSVILLE AT GOVERNMENT EXPENSE, THERE IS IN THE FILE A REPORT ON THE MATTER FROM THE BUREAU OF NAVAL PERSONNEL STATING ,THERE IS NO EVIDENCE ON FILE IN THE RECORD OF SUBJECT MAN TO SHOW PAYMENT TO HOME OF SELECTION OR HOME OF RECORD AT TIME OF TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON 1 AUGUST 1956.' ALTHOUGH THIS REPORT SUPPORTS YOUR ALLEGATION, IT DOES NOT AFFECT THE DISALLOWANCE OF YOUR CLAIM.

IN THE ORDERS OF JULY 26, 1956, DIRECTING YOUR RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST YOU WERE ADVISED THAT "YOUR ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES WILL BE AS PROVIDED IN CURRENT REGULATIONS.' PARAGRAPH 4158-1A (CHANGE 43), JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, AND IN EFFECT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY IN THE UNITED STATES NAVY AT GREAT LAKES, ILLINOIS, AND TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 1, 1956, PROVIDED AS FOLLOWS:

"A. TRAVEL TO HOME OF SELECTION AUTHORIZED. A MEMBER ON ACTIVE DUTY WHO IS (1) RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST * * * 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.'

AUTHORITY FOR TRANSPORTATION OF THE MEMBER'S DEPENDENTS AT GOVERNMENT EXPENSE WAS CONTAINED IN PARAGRAPH 7012-1A (CHANGE 43) OF THE REGULATIONS WHICH PROVIDED:

"A. TRAVEL TO HOME OF SELECTION. A MEMBER ON ACTIVE DUTY WHO IS (1) RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST * * * WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM HIS LAST DUTY STATION, OR THE PLACE TO WHICH HIS DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO THE HOME SELECTED BY THE MEMBER FOR THE PURPOSE OF RECEIVING TRAVEL ALLOWANCES FOR HIS TRAVEL IN ACCORDANCE WITH PAR. 4158, PROVIDED THAT SUCH TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY. * * *"

THUS, IN ORDER FOR YOU AND YOUR DEPENDENTS TO BE ELIGIBLE FOR TRANSPORTATION AT PUBLIC EXPENSE TO SAN FRANCISCO AS YOUR HOME OF SELECTION UPON TERMINATION OF YOUR ACTIVE SERVICE IN THE UNITED STATES NAVY, THE TRAVEL MUST HAVE BEEN COMPLETED WITHIN ONE YEAR AFTER YOUR RELEASE FROM ACTIVE DUTY ON JULY 31, 1956.

THE PAYMENT OF TRAVEL ALLOWANCES INCIDENT TO YOUR TRANSFER FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE RETIRED LIST EFFECTIVE APRIL 1, 1961, IS GOVERNED BY THE FOLLOWING PROVISION CONTAINED IN PARAGRAPH 4158-5 OF THE JOINT TRAVEL REGULATIONS:

"5. MEMBERS ON TEMPORARY DISABILITY RETIRED LIST WHO ARE DISCHARGED OR RETIRED. A MEMBER WHO IS ON THE TEMPORARY DISABILITY RETIRED LIST AT THE TIME HE IS DISCHARGED WITH SEVERANCE PAY OR RETIRED FOR ANY REASON * * * WILL NOT BE ENTITLED TO TRAVEL ALLOWANCES IN CONNECTION WITH SUCH DISCHARGE OR RETIREMENT. THIS LIMITATION WILL NOT AFFECT THE MEMBER'S RIGHT TO TRAVEL ALLOWANCES TO WHICH HE WAS ENTITLED IN CONJUNCTION WITH HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST * * *.'

A SIMILAR PROVISION LIKEWISE PROHIBITING TRANSPORTATION OF YOUR DEPENDENTS AT PUBLIC EXPENSE UNDER SUCH CIRCUMSTANCES IS CONTAINED IN PARAGRAPH 7012-5 OF THE REGULATIONS.

THE PROVISIONS YOU HAVE REFERRED TO IN PARAGRAPHS 5 (A) AND 5 (B) OF EXCERPTS FROM THE JOINT TRAVEL REGULATIONS--- DENYING TRAVEL AND TRANSPORTATION ALLOWANCES TO A SELECTED HOME INCIDENT TO A MEMBER'S PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST BUT AUTHORIZING SUCH ALLOWANCES ON SUBSEQUENT TRANSFER TO THE PERMANENT RETIRED LIST--- WERE SUPERSEDED BY THE PROVISIONS QUOTED ABOVE PRIOR TO THE DATE YOU WERE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND CONSEQUENTLY HAVE NO APPLICATION IN YOUR CASE.

ACCORDINGLY, SINCE THE TRAVEL TO SAN FRANCISCO WAS NOT PERFORMED WITHIN ONE YEAR AFTER THE TERMINATION OF YOUR ACTIVE DUTY (JULY 31, 1956), AND YOU WERE NOT ENTITLED TO SUCH TRAVEL AT PUBLIC EXPENSE BY REASON OF YOUR TRANSFER FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE RETIRED LIST, ON APRIL 1, 1961, THE SETTLEMENT OF SEPTEMBER 19, 1961, IS SUSTAINED.