B-161881, OCT. 17, 1967

B-161881, OCT. 17, 1967

MILEAGE - MILITARY PERSONNEL - TO SELECTED HOME UPON RETIREMENT DECISION TO RETIRED AIR FORCE OFFICER RE CLAIM FOR MILEAGE AND MONETARY ALLOWANCE FOR TRANSPORTATION OF DEPENDENT FROM GERMANY TO CAIRO, EGYPT INCIDENT TO RETIREMENT. RETIRED MEMBER WHO CLAIMS MILEAGE FROM GERMANY TO CAIRO INCIDENT TO RETIREMENT ON DEC. 1, 1964, AND WHO AS LATE AS OCTOBER 17, 1965, WHEN EFFECTS WERE REQUESTED TO BE MOVED TO CALIFORNIA FOR STORAGE HAD NOT SELECTED A RETIREMENT HOME AND STATEMENTS AFTER ARRIVING AT CAIRO THAT RETIRED MEMBER WOULD CONTINUE TRAVELS IN EUROPE MAY NOT BE REGARDED AS ESTABLISHING A BONA FIDE RESIDENCE IN CAIRO UNDER THE JT. TRAVEL REGS. FOR REIMBURSEMENT FOR TRAVEL.

TO COLONEL DONALD W. JOHNSON, USAF (RET):

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1967, REQUESTING REVIEW OF THE SETTLEMENT DATED MAY 17, 1967, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR YOUR TRAVEL AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR YOUR DEPENDENT (WIFE) FROM BREMERHAVEN, GERMANY, TO CAIRO, EGYPT, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES AIR FORCE.

BY ORDERS DATED OCTOBER 27, 1964, YOU WERE RELEASED FROM ACTIVE DUTY AT DENVER, COLORADO, ON NOVEMBER 30, 1964, AND PLACED ON THE AIR FORCE RETIRED LIST ON DECEMBER 1, 1964. YOU AND YOUR WIFE TRAVELED CIRCUITOUSLY BY PRIVATELY-OWNED VEHICLE TO NEW YORK CITY, PORT OF EMBARKATION AND THENCE ON A SPACE-AVAILABLE BASIS BY MILITARY SEA TRANSPORTATION SERVICE VESSEL TO BREMERHAVEN, GERMANY, ARRIVING MARCH 14, 1965. AFTER OBTAINING A CAR IN GERMANY, YOU CONTINUED YOUR TRAVEL TO VARIOUS COUNTRIES IN EUROPE AND THE MIDDLE EAST, ARRIVING AT CAIRO, EGYPT, NOVEMBER 8, 1965.

ON NOVEMBER 10, 1965, YOU CERTIFIED THAT YOU HAD SELECTED CAIRO, EGYPT, AS YOUR HOME AND REQUESTED PAYMENT OF MILEAGE AND TRANSPORTATION ALLOWANCE FOR THE TRAVEL FROM AURORA, COLORADO, TO CAIRO EXCEPT FOR THE TRANSOCEANIC TRAVEL. BY VOUCHERS DATED FEBRUARY 24, 1966, YOU WERE PAID FOR YOUR TRAVEL AND THAT OF YOUR WIFE FROM DENVER, COLORADO TO NEW YORK CITY, INCLUDING REIMBURSEMENT OF SUBSISTENCE EXPENSES IN THE AMOUNT OF $45 FOR THE TRANSOCEANIC TRAVEL TO GERMANY.

THE RECORD SHOWS THAT ON MARCH 3, 1965, YOU SUBMITTED AN APPLICATION FOR SPACE-AVAILABLE TRAVEL ABOARD A MILITARY SEA TRANSPORT FOR YOURSELF AND WIFE TO BREMERHAVEN, GERMANY. SUCH TRANSPORTATION WAS AUTHORIZED UNDER ARMY REGULATION 55-107, CATEGORY 13, ON A VESSEL WHICH DEPARTED ON MARCH 6, 1965. THAT CATEGORY OF THE REGULATION AUTHORIZES TRANSPORTATION ON A SPACE-AVAILABLE BASIS FOR RETIRED MEMBERS AND THEIR DEPENDENTS WHO ARE NOT TRAVELING PURSUANT TO THEIR RETIREMENT ORDERS. IT IS REPORTED THAT IN REQUESTING SUCH TRANSPORTATION, YOU MADE NO INDICATION THAT IT WAS TO A HOME OF SELECTION.

IT FURTHER APPEARS FROM THE RECORD THAT ON OCTOBER 7, 1965, THE DEPARTMENT OF THE AIR FORCE WROTE TO YOU STATING THAT YOUR ENTITLEMENT TO STORAGE AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS (WHICH WERE IN STORAGE AT GOVERNMENT EXPENSE AT AURORA, COLORADO) WOULD EXPIRE ON DECEMBER 1, 1965. IT WAS SUGGESTED THAT YOU SUBMIT AN APPLICATION FOR SHIPMENT PROMPTLY IN ORDER THAT SHIPMENT COULD BE MADE WITHIN THE AUTHORIZED ONE-YEAR PERIOD. BEFORE RECEIVING THAT LETTER YOU WROTE A LETTER DATED OCTOBER 17, 1965, FROM TORREMOLINOS, SPAIN, TO THE TRANSPORTATION OFFICER AT LOWRY AIR FORCE BASE, COLORADO, WITH WHICH YOU ENCLOSED A REQUEST FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM AURORA TO OAKLAND, CALIFORNIA, FOR STORAGE AT YOUR EXPENSE. IN YOUR LETTER YOU SAID THAT YOU AND YOUR WIFE WERE IN EUROPE FOR AN INDEFINITE STAY "AND IF WE DECIDE TO RESIDE HERE, FURTHER DISPOSITION WILL BE MADE OF THE GOODS.' AFTER RECEIVING THE AIR FORCE LETTER OF OCTOBER 7, 1965, YOU WROTE FROM CAIRO ON NOVEMBER 13, 1965, REFERRING TO YOUR APPLICATION FOR SHIPMENT OF YOUR GOODS AND STATING THAT IF THE APPLICATION HAD NOT BEEN RECEIVED TO COMMUNICATE WITH YOU IN CARE OF THE AIR ATTACHE, U.S. EMBASSY, CAIRO, OR TO USE YOUR FORT STOCKTON, TEXAS, ADDRESS "SINCE WE TRAVEL QUITE A BIT AND I HAVE OUR ACCUMULATED MAIL FORWARDED FROM U.S. ONCE EACH MONTH.' IT APPEARS THAT YOU HAD ARRANGED WITH THE FORT STOCKTON POSTMASTER TO FORWARD YOUR MAIL TO THE VARIOUS ADDRESSES YOU WOULD INDICATE WHILE TRAVELING ABROAD.

IN A LETTER OF NOVEMBER 21, 1966, FROM ATHENS, GREECE, YOU EXPLAINED THAT YOU STAYED IN CAIRO FOR ABOUT TWO MONTHS IN TEMPORARY TYPE QUARTERS; THAT SATISFACTORY PERMANENT QUARTERS WERE NOT AVAILABLE, AND SINCE YOU HAD NOT COMPLETED THE TRAVELS THROUGHOUT EUROPE THAT YOU HAD CONTEMPLATED, YOU RESUMED TRAVELING. IN A LETTER OF MARCH 31, 1967, FROM ATHENS, YOU SAID "I HAVE INDICATED SEVERAL TIMES THAT I PLAN TO ESTABLISH A BONA FIDE RESIDENCE IN CAIRO, EGYPT.' IN YOUR LETTER OF JUNE 15, 1967, WRITTEN FROM OSLO, NORWAY, YOU SAY IT WAS YOUR INTENT TO ESTABLISH A BONA FIDE RESIDENCE IN CAIRO EVEN BEFORE THE TRAVEL VOUCHER WAS SUBMITTED.

THE FOREGOING STATEMENTS, TOGETHER WITH THE REQUEST FOR SPACE AVAILABLE TRANSPORTATION TO EUROPE, INDICATE THAT AT LEAST AS LATE AS OCTOBER 17, 1965, WHEN YOU REQUESTED SHIPMENT OF YOUR HOUSEHOLD GOODS TO CALIFORNIA FOR STORAGE, YOU HAD REACHED NO DECISION ABOUT WHERE YOU WOULD RESIDE. THE SUGGESTION IN YOUR LETTER OF NOVEMBER 13, 1965, FROM CAIRO THAT COMMUNICATIONS TO YOU BE SENT IN CARE OF YOUR FORT STOCKTON MAILING ADDRESS, AND OTHER STATEMENTS WRITTEN AFTER ARRIVING AT CAIRO THAT YOU RESUMED TRAVELING BECAUSE YOU HAD NOT COMPLETED THE TRAVELING THROUGHOUT EUROPE THAT YOU HAD CONTEMPLATED, INDICATE THAT AT THE TIME YOU TRAVELED TO CAIRO YOU DID NOT INTEND TO ESTABLISH A PERMANENT RESIDENCE THERE AT THAT TIME BUT INTENDED TO RESUME YOUR TRAVELS AFTER A SHORT VISIT AND RETURN TO CAIRO AT SOME FUTURE TIME TO ESTABLISH A RESIDENCE.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M1150-3 (B) OF THE REGULATIONS PROVIDES THAT THE TERM "HOME OF SELECTION" AS USED IN THESE REGULATIONS MEANS THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH M4158-1A 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. PARAGRAPH M7010-1A CONTAINS SIMILAR PROVISIONS PERTAINING TO DEPENDENTS' TRANSPORTATION TO THE HOME OF SELECTION.

THE PURPOSE OF THE STATUTE AND REGULATIONS IS TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FOR A MEMBER AND HIS DEPENDENTS 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 PERFORMED, NO RIGHT TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES ACCRUES. SEE 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 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.

AS STATED ABOVE, THE RECORD INDICATES THAT AT THE TIME YOU TRAVELED TO CAIRO YOU INTENDED TO REMAIN THERE ONLY FOR A SHORT PERIOD AND THEN RESUME YOUR TRAVELING IN EUROPE AND THE MIDDLE EAST, WITH THE INTENTION OF ESTABLISHING A BONA FIDE RESIDENCE AT CAIRO AT SOME INDEFINITE TIME IN THE FUTURE. IN THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT THE PRESENT RECORD DOES NOT ESTABLISH THAT THE TRAVEL TO CAIRO, EGYPT, WAS TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS.