B-210526, JUL 14, 1983

B-210526, JUL 14, 1983

DIGEST: WHERE MEMBER RETIRED IN 1965, HIS CLAIM FOR A TRAVEL AND TRANSPORTATION ALLOWANCE TO HIS HOME OF SELECTION ACCRUED PRIOR TO OUR DECISION IN 53 COMP.GEN. 963 (1974), WHICH WE HELD IN 54 COMP.GEN. 1042 (1975) HAS ONLY PROSPECTIVE EFFECT. THEREFORE, THE RULE EXISTING PRIOR TO OUR DECISION IN 53 COMP.GEN. 963, THAT A MEMBER ELIGIBLE FOR HOME OF SELECTION BENEFITS UPON RETIREMENT WHO DOES NOT ACTUALLY PERFORM TRAVEL TO HIS HOME OF SELECTION WITHIN 1 YEAR OF RETIREMENT MAY NOT RECEIVE A TRAVEL AND TRANSPORTATION ALLOWANCE TO HIS HOME OF SELECTION OR ALTERNATIVELY TO HIS HOME OF RECORD OR PLACE OF ENTRY INTO ACTIVE DUTY IS APPLICABLE. SINCE THE RECORD FAILS TO SHOW THAT THE MEMBER ACTUALLY PERFORMED TRAVEL TO HIS HOME OF RETIREMENT WITHIN 1 YEAR OF HIS RETIREMENT, THE MEMBER IS NOT ENTITLED TO A TRAVEL AND TRANSPORTATION ALLOWANCE.

LIEUTENANT COLONEL JOSEPH B. REGAN:

LIEUTENANT COLONEL JOSEPH B. REGAN, USA, RETIRED, REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S DENIAL OF HIS CLAIM FOR A TRAVEL AND TRANSPORTATION ALLOWANCE UPON HIS RETIREMENT TO ATLANTA, GEORGIA, HIS HOME OF SELECTION AND THE PLACE FROM WHICH HE ENTERED ACTIVE DUTY. THE DENIAL OF THE CLAIM IS SUSTAINED.

COLONEL REGAN RETIRED ON AUGUST 1, 1965. HE HAS CLAIMED THAT HE PERFORMED TRAVEL TO ATLANTA FROM WASHINGTON, D. C., AND THAT HE IS THEREFORE ENTITLED TO A TRAVEL ALLOWANCE TO ATLANTA WHICH HE HAS NOT RECEIVED. SINCE THE RECORD DOES NOT SHOW THAT COLONEL REGAN PERFORMED TRAVEL TO ATLANTA FOR THE PURPOSE OF ESTABLISHING A HOME WITHIN 1 YEAR OF HIS SEPARATION ON AUGUST 1, 1966, THE CLAIM MUST BE DISALLOWED.

COLONEL REGAN'S CLAIM FOR TRAVEL EXPENSES INCIDENT TO HIS SEPARATION WAS NOT SUBMITTED TO THE ARMY UNTIL ALMOST 10 YEARS AFTER HIS SEPARATION. HIS CLAIM WAS FORWARDED TO OUR OFFICE FOR THE PURPOSE OF TOLLING THE 10-YEAR STATUTE OF LIMITATIONS WHICH WAS THEN IN EFFECT. HIS CLAIM WAS RECEIVED ON MARCH 18, 1975, JUST MONTHS BEFORE THE EFFECTIVE DATE OF SECTION 801 OF THE GENERAL ACCOUNTING OFFICE ACT OF 1974, PUBLIC LAW 96-604, JANUARY 2, 1975, 88 STAT 1959, 1965. BY THE TERMS OF SECTION 802 OF THAT ACT THE STATUTORY LIMITATION PERIOD WAS REDUCED FROM 10 TO 6 YEARS EFFECTIVE JULY 2, 1975. SINCE COLONEL REGAN'S CLAIM WAS RECEIVED PRIOR TO THE EFFECTIVE DATE OF THAT AMENDMENT AND PRIOR TO THE EXPIRATION OF 10 YEARS FROM THE DATE THE CLAIM ACCRUED, IT WAS CONSIDERED BY THE CLAIMS GROUP, ACCOUNTING AND FINANCIAL MANAGEMENT DIVISION, AND DISALLOWED BY SETTLEMENT DATED AUGUST 23, 1982. IN DENYING THE CLAIM, THE CLAIMS GROUP IN SETTLEMENT DATED AUGUST 23, 1982, STATED THAT OUR DECISION 53 COMP.GEN. 963 (1974), AS CLARIFIED BY OUR DECISION IN 54 COMP.GEN. 1042 (1975), WAS INAPPLICABLE TO COLONEL REGAN'S CLAIM SINCE THE DECISION WAS PROSPECTIVE ONLY AND ANY CLAIM ARISING BEFORE JUNE 14, 1975 (THE DATE OF 53 COMP.GEN. 963) MAY NOT BE CONSIDERED ON THE BASIS OF THE RULE ANNOUNCED IN THAT DECISION. RATHER, THE CLAIMS GROUP HELD, THAT THE RULE EXISTING BEFORE OUR DECISION IN 53 COMP.GEN. 963, WAS APPLICABLE. UNDER THAT RULE A MEMBER QUALIFYING FOR A TRAVEL AND TRANSPORTATION ALLOWANCE TO A HOME OF SELECTION WAS ENTITLED TO SUCH AN ALLOWANCE ONLY IF HE ACTUALLY PERFORMED TRAVEL TO HIS HOME OF SELECTION WITHIN A YEAR OF HIS RETIREMENT. THUS, SINCE THE RECORD FAILED TO SHOW THAT COLONEL REGAN ACTUALLY TRAVELED TO ATLANTA WITHIN A YEAR OF HIS RETIREMENT, HIS CLAIM WAS DENIED.

IN 53 COMP.GEN. 963, WE HELD THAT A MEMBER WHO IS ELIGIBLE FOR HOME OF SELECTION BENEFITS BUT WHOSE CLAIM TO THE ALLOWANCE IS DENIED BECAUSE HE FAILS TO PERFORM TRAVEL TO HIS HOME OF SELECTION WITHIN A YEAR OF HIS RETIREMENT, SHALL BE ELIGIBLE FOR A TRAVEL AND TRANSPORTATION ALLOWANCE TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY.

MANY QUESTIONS AROSE AS A RESULT OF THE RULE LAID DOWN IN THAT DECISION WHICH WERE ADDRESSED IN 54 COMP.GEN. 1042. WE NOTED THAT 53 COMP.GEN. 963, MODIFIED OR OVERRULED PRIOR GAO DECISIONS, AND THAT THUS ITS EFFECT, EXCEPT IN REGARD TO THE RIGHTS OF THE CLAIMANT IN THAT DECISION, WAS PROSPECTIVE ONLY. THEREFORE, ANY CLAIMS ACCRUING BEFORE JUNE 14, 1974, THE DATE OF OUR DECISION IN 53 COMP.GEN. 963, MUST BE DECIDED ON THE BASIS OF THE RULE SET DOWN IN PRIOR DECISIONS.

IN COLONEL REGAN'S CASE, SINCE HIS RETIREMENT WAS EFFECTIVE ON JULY 31, 1965, IT IS CLEAR THAT HIS CLAIM ACCRUED BEFORE JUNE 14, 1974. THEREFORE, THE RULE IN EFFECT PRIOR TO 53 COMP.GEN. 963 IS APPLICABLE TO HIS SITUATION.

COLONEL REGAN CLAIMS THAT HE PERFORMED TRAVEL TO ATLANTA, GEORGIA, AND THAT HE LIVED THERE, AS HIS HOME OF SELECTION, FOR 5 YEARS. THE QUESTION IS WHETHER HE PERFORMED THAT TRAVEL WITHIN 1 YEAR OF HIS RETIREMENT. THE INVOICE FOR STORAGE OF HOUSEHOLD EFFECTS AND THE CHECK IN PAYMENT THEREOF DEMONSTRATE THAT HIS HOUSEHOLD GOODS WERE IN STORAGE IN ATLANTA DURING THE MONTHS OF AUGUST AND SEPTEMBER 1966, AND THAT COLONEL REGAN HAD AN ACCOUNT IN A BANK IN THE ATLANTA AREA IN SEPTEMBER 1966. IN HIS POST CARD TO THE U. S. ARMY FINANCE CENTER DATED AUGUST 15, 1975, COLONEL REGAN ASSERTS THAT HE TRAVELED TO ATLANTA BUT DOES NOT INDICATE WHEN TRAVEL TO ATLANTA FOR THE PURPOSE OF ESTABLISHING A HOME UPON RETIREMENT WAS PERFORMED.

SINCE TRAVEL TO ATLANTA, COLONEL REGAN'S HOME OF SELECTION, WAS TO HAVE BEEN PERFORMED WITHIN 1 YEAR OF HIS RETIREMENT DATE, AUGUST 1, 1965, AND SINCE THE EVIDENCE PRESENTED DOES NOT DEMONSTRATE THAT HE DID TRAVEL TO ATLANTA WITHIN THAT YEAR, THE DETERMINATION OF THE CLAIMS GROUP MUST BE SUSTAINED AND THE CLAIM DENIED.