B-209044, MAR 1, 1983

B-209044, MAR 1, 1983

DIGEST: SERVICE MEMBER'S CLAIM FOR TRAVEL BY PRIVATELY OWNED VESSEL FROM PANAMA CITY, PANAMA, WHERE HE RETIRED FROM ACTIVE DUTY TO A PLACE HE CLAIMS AS HIS HOME OF SELECTION UPON RETIREMENT, PANACEA, FLORIDA, IS DISALLOWED SINCE HE RETURNED TO PANAMA, AND HAS SHOWN NO EVIDENCE OF ACTUAL AND CONTINUOUS RESIDENCE IN PANACEA. THE FACT THAT HE MIGHT ULTIMATELY MOVE TO THAT LOCATION DOES NOT PROVIDE BASIS FOR PAYMENT.

MAJOR EDWARD R. LESESNE, USA, RETIRED:

MAJOR EDWARD R. LESESNE, USA, RETIRED, REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S JULY 6, 1982 DENIAL OF HIS CLAIM FOR EXPENSES OF TRAVEL BY PRIVATELY OWNED VESSEL IN 1981 FROM PANAMA CITY, PANAMA, TO A HOME OF SELECTION IN PANACEA, FLORIDA, BASED UPON HIS RETIREMENT IN 1980. THE CLAIM WAS DISALLOWED SINCE HIS STAY FOR A SHORT TIME IN PANACEA BEFORE RETURNING TO PANAMA DID NOT EVIDENCE AN INTENT TO ESTABLISH A HOME OF SELECTION. THE DENIAL IS SUSTAINED.

MAJOR LESESNE RETIRED FROM ACTIVE ARMY SERVICE AT FORT CLAYTON, PANAMA, EFFECTIVE DECEMBER 31, 1980. FROM MAY 30 THROUGH JUNE 30, 1981, HE TRAVELED BY HIS PRIVATELY OWNED BOAT FROM LEMON BAY, PANAMA, TO DOG ISLAND, PANACEA, FLORIDA. HE SUBMITTED A CLAIM FOR TRANSPORTATION EXPENSES DATED OCTOBER 21, 1981, SHOWING A MAILING ADDRESS IN PANAMA, WHICH TOGETHER WITH SUBSEQUENT CORRESPONDENCE INDICATES THAT HIS STAY IN PANACEA WAS FOR ONLY A SHORT TIME BEFORE RETURNING TO PANAMA.

IN HIS REQUEST FOR RECONSIDERATION OF THE PREVIOUS DISALLOWANCE OF HIS CLAIM, MAJOR LESESNE CONTENDS IN ESSENCE THAT HE RETURNED TO PANAMA BECAUSE HE WAS A MEMBER OF THE PANAMA CANAL YACHT CLUB AND AS SUCH HE COULD GET FREE HAULOUT SERVICE AND DOCKAGE. IN ADDITION, IT WAS LESS EXPENSIVE AT THAT LOCATION TO REPAIR AND UPGRADE HIS VESSEL TO BE SUITABLE FOR CHARTER. HE DOUBTS THAT HE WILL SPEND MORE THAN 1 TO 2 MONTHS EACH YEAR IN PANACEA BECAUSE OF HIS LIFESTYLE, BUT HE INSISTS THAT PANACEA IS HIS HOME OF SELECTION.

SECTION 404 OF TITLE 37, U.S.C. (1976), PROVIDES IN PERTINENT PART IN SUBSECTION (C), THAT A MEMBER OF A UNIFORMED SERVICE WHO IS RETIRED MAY, NOT LATER THAN 1 YEAR FROM THE DATE HE IS RETIRED, SELECT HIS HOME FOR THE PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY SUBSECTION (A) OF THAT SECTION.

PARAGRAPH M4158 OF VOLUME 1, JOINT TRAVEL REGULATIONS, IMPLEMENTING 37 U.S.C. 404(C), PROVIDES IN SUBPARAGRAPH 1A THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED MAY SELECT HIS HOME AND BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES THERETO FROM HIS LAST DUTY STATION.

APPENDIX J OF THE JOINT TRAVEL REGULATIONS DEFINES "HOME OF SELECTION" AS USED IN THESE REGULATIONS TO MEAN THE PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT.

THE PURPOSE OF THE STATUTE AND REGULATIONS IS TO AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE FOR A RETIRED SERVICE MEMBER TO THE PLACE WHERE HE GOES TO RESIDE FOLLOWING RETIREMENT. UNLESS THAT PLACE HAS BEEN SELECTED AND TRAVEL TO IT FOR THAT PURPOSE HAS BEEN PERFORMED WITHIN 1 YEAR OF RETIREMENT, NO RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES ACCRUES. SEE 36 COMP.GEN. 774 (1957). THE BEST EVIDENCE, OF COURSE, THAT THE TRAVEL FOR WHICH A MEMBER SEEKS REIMBURSEMENT WAS TO A PLACE SELECTED BY HIM AS HIS HOME UPON RETIREMENT, IS HIS ACTUAL AND CONTINUED RESIDENCE AT THAT PLACE. IN CASES IN WHICH THE MEMBER'S STAY IN A PARTICULAR PLACE DOES NOT EXCEED THE SPAN OF A SHORT VISIT, 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 CONTEMPLATION OF THE JOINT TRAVEL REGULATIONS. SEE 52 COMP.GEN. 242, 244 (1972). WE HAVE CONSISTENTLY HELD THAT A TRIP OF SHORT DURATION TAKEN WITHIN 1 YEAR OF RETIREMENT FOR THE MERE PURPOSE OF VISITING A POSSIBLE FUTURE HOME SITE MAY NOT PROPERLY BE CONSIDERED TRAVEL TO A SELECTED HOME UPON RETIREMENT UNDER THE REGULATIONS. SEE, E.G., MATTER OF CARTWRIGHT, B-188212, MARCH 17, 1977; MATTER OF MCCULLOUGH, B-165476, JULY 23, 1976; AND MATTER OF BERENZWEIG, B-181629, JULY 16, 1975.

IN THE PRESENT CASE, MAJOR LESESNE'S TRAVEL TO PANACEA, FLORIDA, AND THE INDICATION THAT HE INTENDS TO LIVE THERE INTERMITTENTLY IN THE FUTURE DOES NOT MAKE IT HIS HOME OF SELECTION UPON RETIREMENT UNDER THE APPLICABLE STATUTES AND REGULATIONS. THE FACT REMAINS THAT HE TRAVELED THERE FOR ONLY A SHORT STAY, AND THAT SUBSEQUENT TO THAT TRIP CORRESPONDENCE WITH HIM WAS SENT TO PANAMA. IT APPEARS THAT HIS FINAL SELECTION OF HIS HOME UPON RETIREMENT IS PANAMA CITY, PANAMA, WHERE HE WAS RELEASED FROM ACTIVE DUTY AND WHERE HE CONTINUED TO RESIDE. ADDITIONALLY, ANY FUTURE CORRESPONDENCE WITH HIM IS TO BE SENT IN CARE OF HIS BROTHER IN SOUTH CAROLINA. NO EVIDENCE THAT HE MAINTAINS A HOME IN PANACEA IS PRESENT IN THE FILE, OTHER THAN A BUSINESS CARD LISTING A POST OFFICE BOX THERE. HENCE, WE CONCLUDE THAT WHILE HE MAY INTEND TO MAKE PANACEA, FLORIDA, HIS HOME SOMETIME IN THE FUTURE, HE DID NOT MAKE IT HIS HOME AT ANY TIME DURING THE PRESCRIBED 1-YEAR PERIOD FOLLOWING HIS RETIREMENT.

THEREFORE, PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR A MOVE BY MAJOR LESESNE FROM PANAMA CITY, PANAMA, TO PANACEA, FLORIDA, IS NOT AUTHORIZED. THE ACTION TAKEN BY OUR CLAIMS GROUP DISALLOWING MAJOR LESESNE'S CLAIM IS SUSTAINED.