B-159252, JUN. 9, 1966

B-159252, JUN. 9, 1966

TO COMMANDING GENERAL, FINANCE CENTER, DEPARTMENT OF THE ARMY:

BY LETTER DATED MAY 23, 1966, THE HONORABLE SAMUEL N. FRIEDEL, HOUSE OF REPRESENTATIVES, REQUESTED THAT WE REVIEW THE CLAIM OF THE ARMY AGAINST LIEUTENANT COLONEL FRANCIS M. JOHNSON, RETIRED, FOR TRAVEL AND TRANSPORTATION ALLOWANCES PAID TO HIM INCIDENT TO HIS RETIREMENT FROM THE SERVICE. THE CLAIM HAS NOT BEEN FORWARDED HERE AS AN UNCOLLECTIBLE INDEBTEDNESS AND IS STILL UNDER THE JURISDICTION OF THE ARMY. HOWEVER, WE HAVE OBTAINED COPIES OF THE PERTINENT DOCUMENTS FROM THE FINANCE CENTER.

BY SPECIAL ORDERS NO. 38, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED FEBRUARY 19, 1963, COLONEL JOHNSON WAS PLACED ON THE ARMY OF UNITED STATES RETIRED LIST EFFECTIVE APRIL 1, 1963. BY ORDERS DATED FEBRUARY 25, 1963, HEADQUARTERS, 49TH TRANSPORTATION BATTALION, APO 28, US FORCES, AS AMENDED, WHICH SHOWED HIS RETIREMENT ADDRESS AS BUTTE, NEBRASKA, HE AND HIS DEPENDENTS (WIFE AND 5 CHILDREN) WERE AUTHORIZED TRANSPORTATION TO THE UNITED STATES. THE ITINERARY FURNISHED WITH CLAIM FOR TRAVEL AND TRANSPORTATION ALLOWANCE SHOWS THAT ON JULY 21, 1963, THE CLAIMANT AND HIS DEPENDENTS TRAVELED BY PRIVATELY OWNED AUTOMOBILE FROM MANNHEIM, GERMANY, TO BREMERHAVEN, GERMANY, ARRIVING THERE ON JULY 23, 1963. ON JULY 27, 1963, THEY WERE FURNISHED WATER TRANSPORTATION TO BROOKLYN, NEW YORK, ARRIVING THERE ON AUGUST 5, 1963. ON THE SAME DAY THEY DEPARTED FOR COLLEGE PARK, MARYLAND, AND ARRIVED ON AUGUST 6, 1963, WHERE THEY REMAINED UNTIL AUGUST 9, 1963, WHEN THEY DEPARTED FOR BUTTE, NEBRASKA, ARRIVING THERE ON AUGUST 15, 1963. COLONEL JOHNSON HAD CERTIFIED THAT BUTTE, NEBRASKA, WAS HIS HOME OF SELECTION ON RETIREMENT AND BY D.O. VOUCHER NO. 052146 IN THE OCTOBER 1963 ACCOUNTS OF LIEUTENANT COLONEL J. L. CLANCY, SYMBOL NO. 5053, FINANCE CENTER, U.S. ARMY, HE WAS PAID THE SUM OF $454.88 FOR ONE DAY PER DIEM AND MILEAGE FOR PERSONAL AND DEPENDENT TRAVEL FOR LAND TRAVEL BASED ON THE DISTANCE FROM MANNHEIM, GERMANY, TO BREMERHAVEN, AND FROM BROOKLYN, NEW YORK, TO BUTTE, NEBRASKA.

SUBSEQUENTLY, IN AN ADMINISTRATIVE AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, EXCEPTION WAS TAKEN TO THE PAYMENT FOR THE REASON THAT COLONEL JOHNSON WAS PAID THE SUM OF $454.88 ON THE BASIS THAT BUTTE, NEBRASKA, WAS HIS HOME OF SELECTION ON RETIREMENT, AND THE RECORD INDICATED THAT HE DID NOT ESTABLISH A BONA FIDE RESIDENCE THERE. THIS ACTION WAS BASED ON AN INVESTIGATOR'S STATEMENT TO THE EFFECT THAT RECORDS OF UNITED STATES POST OFFICE DISCLOSED A CHANGE OF ADDRESS CARD SIGNED BY COLONEL JOHNSON DATED SEPTEMBER 18, 1963, REFLECTING HIS PERMANENT MAILING ADDRESS TO BE 20D HILLSIDE ROAD, GREENBELT, MARYLAND; A STATEMENT OF MR. OWEN JOHNSON, BOX 202, BUTTE, NEBRASKA, MADE TO AN ARMY INVESTIGATOR ON AUGUST 9, 1965, THAT HIS BROTHER, COLONEL JOHNSON, HAD NO INTENTION OF RESIDING AT BUTTE, NEBRASKA, WHEN HE ARRIVED IN AUGUST 1963 AND USED BUTTE MERELY AS A "BASE STATION" UNTIL HE MADE UP HIS MIND WHAT TO DO; THAT INVESTIGATION DISCLOSED THAT COLONEL JOHNSON ALLEGEDLY HAD EMPLOYMENT WITH THE UNIVERSITY OF MARYLAND AT AND PRIOR TO HIS ARRIVAL AND DEPARTURE IN BUTTE, NEBRASKA, DURING AUGUST 1963; AND THAT HE REQUESTED HIS HOUSEHOLD EFFECTS TO BE SHIPPED TO GREENBELT, MARYLAND.

IN REBUTTAL, COLONEL JOHNSON SAYS THAT BUTTE, NEBRASKA, WAS HIS LEGAL RESIDENCE WHILE HE WAS IN SERVICE, THAT IT WAS HIS HOME OF SELECTION UPON RETIREMENT AND THAT HE TRAVELED THERE FOR THE SOLE PURPOSE OF ESTABLISHING HIS HOME. AS EVIDENCE OF THIS INTENT HE SAYS THAT HIS CAR AND TRAILER WERE REGISTERED IN NEBRASKA, THAT HE OBTAINED A NEBRASKA DRIVER'S LICENSE AND THAT HIS SEPARATION DOCUMENT IS RECORDED IN NEBRASKA. HE EXPLAINS THAT HE WENT TO LIVE IN GREENBELT, MARYLAND, ONLY FOR THE PURPOSE OF ATTENDING SCHOOL, THAT HE MOVED HIS HOUSEHOLD EFFECTS THERE BECAUSE HE NEEDED THEM FOR HIS FAMILY AT THE HOME HE ESTABLISHED WHILE HE WAS AT SCHOOL AND THAT HE DID NOT OBTAIN EMPLOYMENT AND DECIDE TO REMAIN IN MARYLAND UNTIL SOME TIME AFTER HE MOVED TO MARYLAND.

PARAGRAPH M4158-1A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO IS RETIRED FROM THE SERVICE 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. PARAGRAPH M7012-1A OF THE REGULATIONS, IN EFFECT AT THE TIME, PROVIDES FOR TRANSPORTATION OF DEPENDENTS TO A SELECTED HOME UPON RETIREMENT IF TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY.

WHETHER THE TRAVEL OF A MEMBER AND HIS DEPENDENTS TO A PARTICULAR LOCATION AS A HOME OF SELECTION IS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE IS A MATTER OF INTENT WHEN THE TRAVEL IS PERFORMED AND THAT INTENT IS FOR DETERMINATION ON THE BASIS OF ALL FACTORS INVOLVED AND NOT SOLELY BY THE LENGTH OF RESIDENCE. IN 36 COMP. GEN. 774, WE HELD THAT TRAVEL OF A MEMBER FOLLOWING RETIREMENT TO A PLACE AT WHICH HE DOES NOT INTEND TO ESTABLISH A HOME, BUT MERELY VISIT GAVE RISE TO NO ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES, BUT THAT, IF A MEMBER UPON HIS RETIREMENT CERTIFIES THAT HE HAS SELECTED A PARTICULAR PLACE AS HIS HOME AND TRAVELS TO SUCH PLACE, HIS CERTIFICATION AND TRAVEL WILL BE ACCEPTED, IN THE ABSENCE OF A CLEAR INDICATION TO THE CONTRARY, AS ESTABLISHING HIS ENTITLEMENT TO THE TRAVEL ALLOWANCE AUTHORIZED BY THE STATUTE AND THE REGULATIONS. WE SAID THAT THE FACT THAT A MEMBER REMAINS AT HIS SELECTED HOME FOR ONLY A SHORT TIME DOES NOT IN ITSELF DEFEAT HIS CLAIM TO THE TRAVEL ALLOWANCE.

COLONEL JOHNSON ASSERTS THAT HE AND HIS DEPENDENTS PERFORMED THE TRAVEL TO BUTTE, NEBRASKA, BECAUSE HE SELECTED THAT PLACE AS HIS HOME UPON RETIREMENT AND THAT WHEN HE LEFT THERE TO GO TO GREENBELT, MARYLAND, HE HAD EVERY INTENTION OF RETURNING WHEN HE HAD COMPLETED HIS STUDIES AT THE UNIVERSITY OF MARYLAND. THE FACT THAT HE LATER DECIDED TO REMAIN PERMANENTLY IN MARYLAND DOES NOT OF ITSELF REQUIRE A CONCLUSION THAT HIS ASSERTIONS ARE A MISREPRESENTATION OF HIS INTENTIONS AND THE FACT THAT HIS HOUSEHOLD EFFECTS WERE SHIPPED TO GREENBELT FOR HIS USE WHILE HE WAS IN SCHOOL DOES NOT NECESSARILY CONFLICT WITH HIS ASSERTIONS SINCE UNDER THE PROVISIONS OF THE ACT OF AUGUST 17, 1961, 75 STAT. 341, 37 U.S.C. 406 (G), HE WAS ENTITLED TO SHIP HIS HOUSEHOLD EFFECTS TO A LOCATION OTHER THAN HIS HOME OF SELECTION UPON PAYMENT OF ANY EXCESS COST.

WHILE THE MATTER IS NOT FREE FROM DOUBT, WE DO NOT BELIEVE THAT THE BASES UPON WHICH THE ARMY QUESTIONED THE PAYMENT TO COLONEL JOHNSON CLEARLY ESTABLISH THAT, CONTRARY TO HIS CERTIFICATION, HE HAD NO INTENTION OF SELECTING BUTTE, NEBRASKA, AS HIS HOME ON RETIREMENT WHEN HE MADE THE CERTIFICATION, OR THAT HE TRAVELED THERE MERELY TO VISIT. IN FACT, IT IS OUR VIEW THAT SINCE COLONEL JOHNSON ACTUALLY TRAVELED TO BUTTE, IT WOULD BE EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, IN THE CIRCUMSTANCES OF THE CASE FOR THE GOVERNMENT TO CARRY THE BURDEN OF PROOF IN ESTABLISHING THAT HE HAD NO INTENTION OF SELECTING BUTTE AS HIS HOME. SEE UNITED STATES V. BENJAMIN, 184 F.SUPP. 622. ACCORDINGLY, THE RECORD DOES NOT APPEAR TO US TO BE SUFFICIENT TO JUSTIFY COLLECTION OF THE PAYMENT ON THE GROUND THAT IT WAS AN ERRONEOUS PAYMENT WHEN MADE.

BY LETTER OF TODAY WE HAVE ADVISED MR. FRIEDEL OF THE FACTS AND OUR CONCLUSIONS AS EXPRESSED ABOVE WITH RESPECT TO THE MATTER OF THE CLAIM AGAINST COLONEL JOHNSON. WE POINTED OUT, HOWEVER, THAT THE CLAIM HAS NOT BEEN FORWARDED HERE AS AN UNCOLLECTIBLE INDEBTEDNESS AND IS STILL UNDER THE JURISDICTION OF THE DEPARTMENT OF THE ARMY, BUT THAT WE WOULD ADVISE YOUR OFFICE OF OUR VIEWS IN THE MATTER AND THAT WE WOULD HAVE NO OBJECTION IF THE ARMY SAW FIT TO DISCONTINUE THE COLLECTION PROCEEDINGS.