B-166533, APR. 16, 1969

B-166533, APR. 16, 1969

TO STAFF SERGEANT EDWARD T. SELLERS, RET.:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 23, 1968, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCES FOR YOUR OWN TRAVEL AND FOR TRAVEL OF YOUR DEPENDENTS FROM HIGHLAND, CALIFORNIA, TO TAMPA, FLORIDA, IN SEPTEMBER 1968, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES AIR FORCE.

BY DEPARTMENT OF THE AIR FORCE SPECIAL ORDER NO. AC-15045, DATED JUNE 22, 1967, YOU WERE RELIEVED FROM ACTIVE DUTY AT NORTON AIR FORCE BASE, CALIFORNIA, ON SEPTEMBER 30, 1967, AND RETIRED EFFECTIVE OCTOBER 1, 1967. THE ORDERS AUTHORIZED YOU TO PROCEED TO A HOME OF YOUR SELECTION.

ON DECEMBER 20, 1967, YOU APPEARED BEFORE A NOTARY PUBLIC IN FLORIDA AND EXECUTED A CLAIM STATING THAT YOU HAD SELECTED TAMPA AS YOUR HOME; THAT YOU, YOUR WIFE AND FIVE CHILDREN HAD TRAVELED THERETO FROM HIGHLAND, CALIFORNIA, BY PRIVATELY OWNED AUTOMOBILE DURING THE PERIOD DECEMBER 15 TO 19, 1967; AND THAT THESE STATEMENTS WERE TRUE AND COMPLETE. YOUR CLAIM WAS DENIED BY THE AIR FORCE FOR THE REASON THAT UPON INVESTIGATION IT WAS LEARNED THAT YOU HAD TRAVELED TO TAMPA ALONE; THAT YOU HAD RETURNED TO HIGHLAND AFTER A BRIEF VISIT; THAT YOU HAD NOT ESTABLISHED YOUR HOME IN TAMPA; AND THAT YOUR DEPENDENTS HAD NOT PERFORMED THE TRAVEL BUT HAD REMAINED IN HIGHLAND.

THE INVESTIGATION BY THE AIR FORCE DISCLOSED THAT WHEN YOU WERE IN TAMPA YOU VISITED YOUR MOTHER IN THAT CITY AND INFORMED HER THAT A CHECK WOULD BE COMING TO YOU FROM THE AIR FORCE AND REQUESTED HER TO MAIL IT TO YOU AT HIGHLAND. IT IS REPORTED THAT AT THAT TIME YOU DID NOT EXPRESS ANY INTENTION OF MAKING TAMPA YOUR HOME. WHEN YOU WERE INTERVIEWED IN HIGHLAND YOU CONTENDED THAT YOU HAD BEEN TOLD YOU COULD MAKE THE TRIP ALONE AND CLAIM FOR YOUR DEPENDENTS AS WELL. HOWEVER, YOU WERE UNABLE TO SAY WHO HAD GIVEN YOU SUCH ADVICE. ALSO, IN VIEW OF THE FACT THAT YOU HAD IMMEDIATELY RETURNED TO YOUR FAMILY IN HIGHLAND, YOU WERE ASKED IF YOU UNDERSTOOD WHAT WAS MEANT BY "HOME OF SELECTION" AND YOU SAID YOU DID.

ON OCTOBER 12, 1968, YOU FILED A SECOND CLAIM STATING THAT YOU AND YOUR DEPENDENTS TRAVELED FROM HIGHLAND, CALIFORNIA, TO TAMPA, FLORIDA, BY PRIVATELY OWNED AUTOMOBILE DURING THE PERIOD SEPTEMBER 17 TO 20, 1968. EXECUTING THAT CLAIM YOU ALLEGED THAT YOUR STATEMENTS THEREIN ALSO WERE TRUE AND COMPLETE. THAT CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON STATED THEREIN.

IN YOUR PRESENT LETTER YOU CONTEND THAT ON THE FIRST TRIP YOU DID WHAT YOU WERE TOLD. ALSO, YOU SAY THAT SINCE THE AIR FORCE SHIPPED YOUR HOUSEHOLD EFFECTS TO TAMPA YOU DO NOT UNDERSTAND WHY THE TRAVEL CLAIM CANNOT BE PAID.

TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS UPON PERMANENT CHANGE OF STATION INCLUDING FROM LAST STATION TO HOME OF SELECTION UPON RETIREMENT ARE GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTIONS 404 AND 406 OF TITLE 37, UNITED STATES CODE. PARAGRAPH M4158 OF THOSE REGULATIONS AUTHORIZES MEMBERS TO SELECT A HOME UPON RETIREMENT AND RECEIVE TRAVEL ALLOWANCES UPON COMPLETION OF THE TRAVEL.

THE REGULATIONS CONTEMPLATE TRAVEL FOR THE PURPOSE OF ESTABLISHING RESIDENCE AT THE PLACE SELECTED AND DO NOT AUTHORIZE PAYMENT OF TRAVEL ALLOWANCES FOR THE PURPOSE OF A VISIT. PARAGRAPH M7000 OF THE REGULATIONS AUTHORIZES TRANSPORTATION, REIMBURSEMENT, OR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL OF DEPENDENTS BETWEEN POINTS AUTHORIZED IN THE REGULATIONS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE. REIMBURSEMENT OR PAYMENT OF A MONETARY ALLOWANCE IS NOT AUTHORIZED UNLESS TRAVEL HAS BEEN COMPLETED AND FOR THAT PURPOSE.

YOUR FIRST CLAIM WAS BASED ON THE REPRESENTATION BY YOU THAT YOU AND YOUR DEPENDENTS HAD COMPLETED TRAVEL TO TAMPA, FLORIDA, AS YOUR HOME OF SELECTION IN DECEMBER 1967, INCIDENT TO YOUR RETIREMENT. IF YOUR SECOND CLAIM REPRESENTS A CORRECT STATEMENT OF TRAVEL INCIDENT TO THE RETIREMENT ORDERS OF JUNE 22, 1967, IT IS APPARENT THAT YOUR FIRST CLAIM WAS INCORRECT.

CLAIMS AGAINST THE UNITED STATES MUST BE BASED ON TRUE FACTS AND IT IS INCUMBENT UPON THE CLAIMANT TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING THE CLEAR LIABILITY OF THE UNITED STATES TO PAY THE CLAIM. SECOND CLAIM FOR AMOUNTS BELIEVED TO BE DUE IN A CASE WHERE PAYMENT ON A FIRST CLAIM FOR SUCH AMOUNTS HAS BEEN DENIED BECAUSE OF A MISREPRESENTATION OF FACT IS OF DOUBTFUL VALIDITY EVEN THOUGH THE SECOND CLAIM APPARENTLY IS BASED UPON THE TRUE FACTS. WHERE A CLAIM IS OF DOUBTFUL VALIDITY DUE TO CONFLICTING STATEMENTS BY THE CLAIMANT IT LONG HAS BEEN THE PRACTICE OF THIS OFFICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V UNITED STATES, 17 CT.CL. 288, AND CHARLES V UNITED STATES, 19 CT.CL. 316. COMPARE KAMEN SOAP PRODUCTS, INC. V UNITED STATES, 129 CT.CL. 619.

EVEN IF IT WERE ESTABLISHED THAT YOU ERRONEOUSLY HAD BEEN ADVISED THAT YOU COULD TRAVEL WITHOUT YOUR DEPENDENTS TO TAMPA FOR A BRIEF VISIT AND PRESENT A CLAIM FOR TRAVEL BY YOU AND YOUR DEPENDENTS, SUCH ERRONEOUS ADVICE WOULD NOT AFFORD A BASIS FOR PAYMENT OF YOUR CLAIM. WITH RESPECT TO YOUR HOUSEHOLD EFFECTS, APPARENTLY THE SHIPMENT WAS MADE UPON YOUR APPLICATION SUBSEQUENT TO YOUR FIRST TRIP TO TAMPA AND AFTER YOU HAD DEFINITELY DECIDED TO MOVE YOUR HOUSEHOLD TO THAT CITY AS YOUR HOME OF SELECTION UPON RETIREMENT. WHILE ENTITLEMENT TO SHIPMENT OF HOUSEHOLD EFFECTS UPON RETIREMENT IS DEPENDENT ON A VALID SELECTION OF A HOME, IT IS AN ALLOWANCE AUTHORIZED UNDER PROVISIONS OF THE REGULATIONS SEPARATE FROM THE PROVISIONS GOVERNING TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE MEMBER AND HIS DEPENDENTS. THUS, THE APPLICATION FOR SHIPMENT OF YOUR HOUSEHOLD GOODS WAS A SEPARATE MATTER AND THE DEPARTMENT OF THE AIR FORCE APPARENTLY CONSIDERED THAT THE ERRONEOUS STATEMENTS IN YOUR TRAVEL CLAIM HAD NO MATERIAL BEARING ON YOUR ENTITLEMENT TO SUCH SHIPMENT.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 23, 1968, WAS CORRECT AND IS SUSTAINED.