B-152369, SEP. 18, 1963

B-152369, SEP. 18, 1963

TO MR. F. NORMAN HEARN, AUTHORIZED CERTIFYING OFFICER, PUBLIC HEALTH SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1963, SUBMITTING FOR DIRECT SETTLEMENT A VOUCHER BY DR. HENRY A. HOLLE, RETIRED PUBLIC HEALTH SERVICE OFFICER, FOR REIMBURSEMENT ON A MILEAGE BASIS FOR HIS TRAVEL AND THAT OF HIS WIFE TO HOUSTON, TEXAS, STATED TO BE HIS HOME OF SELECTION UPON HIS RETIREMENT. YOUR LETTER WILL BE TREATED AS A REQUEST FOR AN ADVANCE DECISION WHETHER PAYMENT IS AUTHORIZED ON THE VOUCHER UNDER THE CIRCUMSTANCES PRESENTED.

BY PARAGRAPH 5 (2), PERSONNEL ORDER NO. 102, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, WASHINGTON, D.C., DATED MAY 28, 1962, DR. HOLLE WAS RELIEVED FROM ACTIVE DUTY AT ROSEBANK,STATEN ISLAND, NEW YORK, ON MAY 31, 1962, AND WAS RETIRED EFFECTIVE JUNE 1, 1962. YOU SAY THAT UPON RETIREMENT, DR. HOLLE MOVED TO A NEW RESIDENCE IN NEW YORK CITY AND PLACED PART OF HIS HOUSEHOLD EFFECTS IN LOCAL STORAGE. IN DECEMBER 1962, THE OFFICER SHIPPED THE EFFECTS HE HAD IN STORAGE TO HOUSTON, TEXAS, AND HE AND HIS WIFE TRAVELED THERE FOR THE PURPOSE OF ESTABLISHING HOUSTON AS HIS HOME OF SELECTION. HOWEVER, HE STAYED THERE A SHORT PERIOD (LESS THAN TWO WEEKS) AND RETURNED TO NEW YORK CITY. HIS WIFE ALSO RETURNED TO NEW YORK AFTER THEIR HOUSEHOLD EFFECTS ARRIVED AT HOUSTON FOR STORAGE. YOU SAY FURTHER THAT DR. HOLLE RECENTLY ADVISED THAT HE HAD ACCEPTED A POSITION IN CHICAGO, ILLINOIS, AND THAT HIS RESIDENCE IN CHICAGO WILL BE TEMPORARY AS WAS HIS RESIDENCE IN NEW YORK CITY.

THE VOUCHER EVIDENCING DR. HOLLE'S CLAIM FOR REIMBURSEMENT ON A MILEAGE BASIS FOR HIS TRAVEL AND THAT OF HIS WIFE TO HOUSTON, TEXAS, AS HIS HOME OF SELECTION UPON RETIREMENT, IS SUPPORTED BY HIS STATEMENT DATED MAY 24, 1963, DESIGNATING HOUSTON AS HIS PERMANENT RESIDENCE FOR THE REASON THAT HE HAD BEEN A RESIDENT OF TEXAS THROUGHOUT HIS SERVICE CAREER, HAD ALWAYS VOTED IN TEXAS AND OWNED PROPERTY THERE. ALSO, HE STATES THAT HE HAS A SON AND OTHER RELATIVES WHO LIVE THERE AND HE PLANS TO RESIDE THERE PERMANENTLY WITHIN A FEW YEARS. FOR THAT REASON, HE SAYS HE SHIPPED A PORTION OF HIS HOUSEHOLD EFFECTS TO STORAGE IN HOUSTON, PENDING HIS RETURN. HE STATED FURTHER THAT HIS EMPLOYMENT IN NEW YORK AT THAT TIME WAS TEMPORARY AND MIGHT END AT ANY TIME.

PARAGRAPH 1150-3 (B) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED IN THE REGULATIONS, MEANS A PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH 4158-1A PROVIDES THAT A 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. ALSO, PARAGRAPH 7012-1A PROVIDES FOR DEPENDENTS' TRANSPORTATION UPON RETIREMENT IF TRAVEL IS COMPLETED TO THE HOME OF SELECTION WITHIN ONE YEAR AFTER MEMBER'S TERMINATION OF ACTIVE DUTY.

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 SUCH PLACE. THE BEST EVIDENCE, OF COURSE, THAT THE TRAVEL FOR 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 CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, IS THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS. 36 COMP. GEN. 774. ALSO SEE B-142264, MAY 10, 1960; B 151484, JUNE 6, 1963, COPIES ENCLOSED.

DR. HOLLE'S STATEMENTS THAT HE HAD BEEN A RESIDENT OF TEXAS FOR VOTING PURPOSES, OWNS PROPERTY THERE AND PLANS TO RESIDE IN HOUSTON PERMANENTLY WITHIN A FIEW YEARS IS INSUFFICIENT TO SUBSTANTIATE HIS CLAIM THAT HE TRAVELED TO HOUSTON IN DECEMBER 1962 TO ESTABLISH A HOME SINCE IT IS CLEAR THAT HE DID NOT EXPECT TO TAKE UP RESIDENCE THERE AT THAT TIME. ON THE CONTRARY, HE APPARENTLY CONTINUED TO MAINTAIN HIS RESIDENCE IN NEW YORK WHEN HE TRAVELED TO HOUSTON AND, AFTER A SHORT VISIT, RETURNED TO NEW YORK WHERE IT IS INDICATED HE WAS EMPLOYED AND CONTINUED TO RESIDE FOR SEVERAL MONTHS. HE THEN DEPARTED TO ACCEPT A POSITION AT CHICAGO, ILLINOIS, AND RESIDE THERE. WHILE DR. HOLLE HAS SELECTED HOUSTON AS THE PLACE WHERE HE EXPECTS TO MAKE HIS HOME AT SOME INDEFINITE TIME IN THE FUTURE, THAT DOES NOT MEET THE ACTUAL RESIDENCE REQUIREMENTS OF THE GOVERNING REGULATIONS. SINCE THE RECORD REQUIRES A CONCLUSION THAT DR. HOLLE'S TRAVEL TO HOUSTON DURING THE PERIOD IN QUESTION WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE APPLICABLE REGULATIONS, PAYMENT OF THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.