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B-180352, JUN 14, 1974, 53 COMP GEN 963

B-180352 Jun 14, 1974
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ARE TO BE AFFORDED SUCH ENTITLEMENTS REGARDLESS OF DENIAL OF TRAVEL AND TRANSPORTATION TO HOME OF SELECTION UNDER 37 U.S.C. 404(C) AND 406(G). 1974: IT HAS COME TO OUR ATTENTION THAT MILITARY MEMBERS WHO ARE ENTITLED TO HOME OF SELECTION TRAVEL UNDER 37 U.S.C. 404(C). TO TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS UNDER 37 U.S.C. 406(G) AND WHO HAVE BEEN DENIED SUCH ENTITLEMENTS BECAUSE THE MEMBER'S TRAVEL WAS TO A LOCATION AT WHICH HE HAD NO INTENTION TO ESTABLISH HIS HOME. OR BECAUSE THE MEMBER'S TRAVEL TO THE HOME OF SELECTION WAS NOT WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY. HAVE NOT BEEN AFFORDED ENTITLEMENTS UNDER 37 U.S.C. 404(A) AND 37 U.S.C. 406(A) AND (B).

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B-180352, JUN 14, 1974, 53 COMP GEN 963

MILITARY PERSONNEL - TERMINATION OF ACTIVE SERVICE - TRAVEL AND TRANSPORTATION EXPENSES - REIMBURSEMENT DENIED TO HOME OF SELECTION - ENTITLED TO REIMBURSEMENT TO HOME OF RECORD OR PLACE OF ENTRY MEMBERS OF THE UNIFORMED SERVICES WHO, ON TERMINATION OF ACTIVE SERVICE OTHERWISE QUALIFY FOR TRAVEL AND TRANSPORTATION TO HOME OR RECORD OR PLACE OF ENTRY ON ACTIVE DUTY UNDER 37 U.S.C. 404(A) AND 406(A), ARE TO BE AFFORDED SUCH ENTITLEMENTS REGARDLESS OF DENIAL OF TRAVEL AND TRANSPORTATION TO HOME OF SELECTION UNDER 37 U.S.C. 404(C) AND 406(G), IN THE ABSENCE OF A STATUTORY REQUIREMENT THAT DENIAL OF TRAVEL AND TRANSPORTATION TO HOME OF RECORD OR PLACE OF ENTRY ON ACTIVE DUTY BE MADE IN SUCH CIRCUMSTANCES.

IN THE MATTER OF UNIFORMED SERVICES MEMBERS' TRAVEL AND TRANSPORTATION ENTITLEMENTS ON TERMINATION OF ACTIVE SERVICE, JUNE 14, 1974:

IT HAS COME TO OUR ATTENTION THAT MILITARY MEMBERS WHO ARE ENTITLED TO HOME OF SELECTION TRAVEL UNDER 37 U.S.C. 404(C), AND TO TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS UNDER 37 U.S.C. 406(G) AND WHO HAVE BEEN DENIED SUCH ENTITLEMENTS BECAUSE THE MEMBER'S TRAVEL WAS TO A LOCATION AT WHICH HE HAD NO INTENTION TO ESTABLISH HIS HOME, OR BECAUSE THE MEMBER'S TRAVEL TO THE HOME OF SELECTION WAS NOT WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY, HAVE NOT BEEN AFFORDED ENTITLEMENTS UNDER 37 U.S.C. 404(A) AND 37 U.S.C. 406(A) AND (B), TO WHICH THEY ARE OTHERWISE ELIGIBLE.

AS AN EXAMPLE, WHERE A RETIRED ARMY MEMBER'S HOME OF SELECTION WAS HATO REY, PUERTO RICO, WHICH ALSO WAS HIS HOME OF RECORD, AND ALLOWANCES FOR THE TRAVEL OF THE MEMBER AND DEPENDENTS TO HATO REY WERE DENIED BECAUSE IT WAS HELD THAT HE DID NOT TRAVEL WITH THE INTENTION OF MAKING HIS HOME THERE, PAYMENT OF ALLOWANCES FOR TRAVEL TO THAT LOCATION, AS HIS HOME OF RECORD, WAS NOT AUTHORIZED.

TRAVEL AND TRANSPORTATION ENTITLEMENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE PROVIDED IN TITLE 37, U.S. CODE, AND ARE IMPLEMENTED IN ACCORD THEREWITH BY THE JOINT TRAVEL REGULATIONS.

SECTION 404, TITLE 37, U.S. CODE, STATES AS FOLLOWS:

(A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER ORDERS, WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION -

(3) UPON SEPARATION FROM THE SERVICE, PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT, FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY, WHETHER OR NOT HE IS OR WILL BE A MEMBER OF A UNIFORMED SERVICE AT THE TIME THE TRAVEL IS OR WILL BE PERFORMED ***

SECTION 404 ALSO PROVIDES AS FOLLOWS:

(C) UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO -

(1) IS RETIRED, OR IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, UNDER CHAPTER 61 OF TITLE 10; OR

(2) IS RETIRED WITH PAY UNDER ANY OTHER LAW, OR, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY WITH NO SINGLE BREAK THEREIN OR MORE THAN 90 DAYS, IS DISCHARGED WITH SEVERANCE PAY OR IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY WITH READJUSTMENT PAY;

MAY, NOT LATER THAN ONE YEAR FROM THE DATE HE IS SO RETIRED, PLACED ON THAT LIST, DISCHARGED, OR RELEASED, EXCEPT AS PRESCRIBED IN REGULATIONS BY THE SECRETARIES CONCERNED, SELECT HIS HOME FOR THE PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SUBSECTION (A) OF THIS SECTION.

SECTION 406, TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENTS (SUBSECTION (A)), AND TO THE TRANSPORTATION OF HIS BAGGAGE AND HOUSEHOLD EFFECTS (SUBSECTION (B)), AS PRESCRIBED BY THE SECRETARIES CONCERNED (SUBSECTION (C)).

ADDITIONALLY, SECTION 406 PROVIDES AS FOLLOWS:

(G) UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO -

(1) IS RETIRED OR IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, UNDER CHAPTER 61 OF TITLE 10; OR

(2) IS RETIRED WITH PAY UNDER ANY OTHER LAW, OR, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS, IS DISCHARGED WITH SEVERANCE PAY OR IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY WITH READJUSTMENT PAY;

IS, NOT LATER THAN ONE YEAR FROM THE DATE HE IS SO RETIRED, PLACED ON THAT LIST, DISCHARGED, OR RELEASED, EXCEPT AS PRESCRIBED IN REGULATIONS BY THE SECRETARIES CONCERNED, ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS TO THE HOME SELECTED UNDER SECTION 404(C) OF THIS TITLE. ***

PARAGRAPH M4157-1A OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR TRAVEL IN THE UNITED STATES, A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY UNDER CERTAIN CONDITIONS BUT EXCLUDING PARAGRAPH M4158-1A OF THE REGULATIONS, WILL BE ENTITLED TO MILEAGE FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, AS THE MEMBER MAY ELECT. UNDER SUBPARAGRAPH 1B, A MEMBER WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY OUTSIDE THE UNITED STATES, OR IS ENTITLED TO TRAVEL ALLOWANCES UNDER THIS PARAGRAPH TO HOME OF RECORD OR PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY WHICH IS LOCATED OUTSIDE THE UNITED STATES, WILL BE ENTITLED TO TRAVEL ALLOWANCES AS PROVIDED IN PARAGRAPH M4159 (PERMANENT CHANGE-OF-STATION TRAVEL TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES).

PARAGRAPH M4158 (RETIREMENT, PLACEMENT ON TEMPORARY DISABILITY RETIRED LIST, DISCHARGE WITH SEVERANCE PAY, OR INVOLUNTARY RELEASE TO INACTIVE DUTY WITH READJUSTMENT PAY) PROVIDES IN SUBPARAGRAPH 1A THAT A MEMBER ON ACTIVE DUTY MAY SELECT HIS HOME AND BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES THERETO FROM HIS LAST DUTY STATION. SUBPARAGRAPH 2 PROVIDES, WITH CERTAIN EXCEPTIONS, THAT TRAVEL TO A SELECTED HOME MUST BE COMPLETED WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY.

SIMILAR PROVISIONS FOR THE TRAVEL OF DEPENDENTS OF MEMBERS ENTITLED TO TRAVEL TO THE HOME OF RECORD OR PLACE FROM WHICH THE MEMBER WAS ORDERED TO ACTIVE DUTY ARE CONTAINED IN PARAGRAPH M7009 OF THE REGULATIONS (WITH THE ADDITIONAL REQUIREMENT IN SUBPARAGRAPH 6 THAT SUCH TRAVEL BE COMPLETED WITHIN 1 YEAR FOLLOWING SEPARATION FROM THE SERVICE OR RELIEF FROM ACTIVE DUTY). PROVISION FOR DEPENDENT TRAVEL TO THE HOME OF SELECTION SIMILAR TO THAT PRESCRIBED FOR ELIGIBLE MEMBERS IS CONTAINED IN PARAGRAPH M7010 OF THE REGULATIONS.

SHIPMENT OF HOUSEHOLD GOODS OF MEMBERS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE SERVICE TO THE PLACE ELECTED FOR TRAVEL ALLOWANCE UNDER PARAGRAPH M4157 IS PROVIDED FOR IN PARAGRAPH M8259 OF THE REGULATIONS, SUBJECT TO THE 1-YEAR LIMITATIONS CONTAINED IN SUBPARAGRAPH 7 THEREOF. REGULATIONS REGARDING THE SHIPMENT OF HOUSEHOLD GOODS OF MEMBERS ENTITLED TO RECEIVE TRAVEL ALLOWANCE TO THE HOME OF SELECTION UNDER PARAGRAPH M4158 ARE CONTAINED IN PARAGRAPH M8260 OF THE REGULATIONS, INCLUDING A 1-YEAR LIMITATION FOR SHIPMENT TO THE SELECTED HOME, SUBJECT TO THE STATED EXCEPTIONS.

WE ARE AWARE OF NO INTENTION ON THE PART OF THE CONGRESS IN ESTABLISHING THE FOREGOING ENTITLEMENTS THAT A MEMBER WHO HAS BASIC ENTITLEMENT TO TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE TO HIS HOME OF SELECTION, BUT WHOSE CLAIM FOR SUCH ENTITLEMENTS IS DENIED FOR THE REASONS PREVIOUSLY INDICATED, ALSO SHALL BE INELIGIBLE FOR TRAVEL AND TRANSPORTATION ALLOWANCES TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY.

A MEMBER'S RIGHT TO CHOOSE A HOME UPON BEING RETIRED, AFTER TERMINATION OF ACTIVE DUTY, IS CONSIDERED TO BE A GREATER BENEFIT THAN IS AFFORDED TO OTHER MEMBERS WHO ARE NOT PERMITTED TO CHOOSE THEIR HOMES FOR ENTITLEMENT PURPOSES UPON COMPLETION OF ACTIVE DUTY. TYPICALLY, A MEMBER RETIRED AFTER 20 YEARS OF SERVICE IS ENTITLED TO THIS BENEFIT, BUT A MEMBER WHO HAS SERVED FOR ONLY 3 YEARS MAY NOT SELECT HIS HOME.

IN SUCH CIRCUMSTANCES, IT WOULD APPEAR TO BE ANONYMOUS TO DENY A MEMBER WITH LONG SERVICE ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED AFTER COMPLETION OF A SHORT PERIOD OF SERVICE, BECAUSE HE HAS BEEN DENIED A GREATER BENEFIT.

CONSEQUENTLY, A MEMBER WHO OTHERWISE QUALIFIES FOR TRAVEL AND TRANSPORTATION ALLOWANCES TO HIS HOME OF RECORD OR PLACE FROM WHICH HE WAS ORDERED OR CALLED TO ACTIVE DUTY UNDER 37 U.S.C. 404(A) AND 406(A) IS TO BE AFFORDED SUCH ENTITLEMENTS WHENEVER HIS ENTITLEMENT TO TRAVEL AND TRANSPORTATION TO HOME OF SELECTION UNDER 37 U.S.C. 404(C) AND 406(G) IS DENIED.

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