B-152906, NOV. 29, 1963

B-152906, NOV. 29, 1963

TO MAJOR DON W. DILLMAN, AUS (RET.):

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1963, REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 16, 1963, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCE FOR YOUR TRAVEL FROM FORT LEWIS, WASHINGTON, TO OAKLAND, CALIFORNIA, DURING THE PERIOD JUNE 24 TO 27, 1963, INCIDENT TO YOUR RETIREMENT AS A MAJOR FROM THE ARMY OF THE UNITED STATES.

THE RECORD SHOWS THAT BY PARAGRAPH 40, SPECIAL ORDER NO. 154, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED JUNE 29, 1962, YOU WERE RELEASED FROM ACTIVE SERVICE ON JUNE 30, 1962, UNDER 10 U.S.C. 3911, AFTER 20 YEARS' ACTIVE FEDERAL SERVICE AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST, EFFECTIVE JULY 1, 1962. IT APPEARS FROM THE RECORD THAT, PRIOR TO THE EFFECTIVE DATE OF YOUR RETIREMENT AND WHILE YOU WERE STILL IN A LEAVE STATUS, YOU TRAVELED FROM FORT LEWIS, WASHINGTON, TO KWAJALEIN, MARSHALL ISLANDS, TO ACCEPT EMPLOYMENT IN A CIVILIAN CAPACITY. THEREAFTER, IN JUNE 1963, AND WHILE ON LEAVE IN THE CONTINENTAL UNITED STATES FROM YOUR CIVILIAN POSITION AT KWAJALEIN, YOU RENTED A PRIVATE AUTOMOBILE, AND DURING THE PERIOD JUNE 24 TO 27, 1963, DROVE FROM FORT LEWIS, WASHINGTON, TO OAKLAND, CALIFORNIA. YOU THEN RETURNED TO YOUR CIVILIAN EMPLOYMENT AT KWAJALEIN. YOUR CLAIM FOR TRAVEL ALLOWANCE DURING THE PERIOD INVOLVED WAS DISALLOWED BY THE DEPARTMENT OF THE ARMY AND OUR CLAIMS DIVISION, SINCE IT DID NOT APPEAR THAT SUCH TRAVEL WAS FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AT THE TIME IN OAKLAND, CALIFORNIA.

IN YOUR REQUEST FOR REVIEW, YOU URGE THAT YOU DID SELECT A HOME WITHIN ONE YEAR AFTER RETIREMENT AND YOU ASK BY WHAT AUTHORITY YOUR CLAIM CAN BE DISALLOWED UNDER YOUR INTERPRETATION OF THE FACTS, SINCE YOU SAY THAT IT IS YOUR PRESENT INTENTION TO GO TO OAKLAND, CALIFORNIA, SOMETIME IN THE FUTURE TO LIVE.

THE CONTROLLING STATUTE, 37 U.S.C. 404, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED, MAY SELECT HIS HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THIS SECTION. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS AND, AS STATUTORY REGULATIONS, THEY HAVE THE FORCE AND EFFECT OF LAW. PARAGRAPH 1150-3 (B) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED THEREIN, MEANS A PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. THIS TERM HAS LONG BEEN VIEWED AS HAVING REFERENCE TO THE PLACE WHERE THE MEMBER GOES TO ESTABLISH A BONA FIDE RESIDENCE. PARAGRAPH 4158-1 (A) 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. 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 AND DECISION OF JUNE 6, 1963, B-151484 (COPIES ENCLOSED).

AS FULLY EXPLAINED IN 36 COMP. GEN. 774, AN INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE AT THE TIME OF TRAVEL THERETO BY A MEMBER IS A NECESSARY CONDITION PRECEDENT UNDER THE LAW 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 SHOW HIS INTENT BY ESTABLISHING A RESIDENCE AT THE PLACE TO WHICH MILEAGE IS CLAIMED BUT GOES TO SOME OTHER PLACE, HIS INTENT NECESSARILY MUST BE INFERRED FROM THE SURROUNDING CIRCUMSTANCES. IN CASES IN WHICH THE MEMBER DOES NOT LOCATE HIS HOME IN A PARTICULAR PLACE AND HIS STAY THERE 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 REQUIRED THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS.

THE MERE SELECTION OF A PLACE WHERE A RETIRED MEMBER EXPECTS TO ESTABLISH HIS HOME AT SOME FUTURE DATE AFFORDS NO BASIS FOR PAYMENT OF A TRAVEL ALLOWANCE SINCE THE PURPOSE OF THE ALLOWANCE, AS STATED ABOVE, IS TO PROVIDE TRANSPORTATION AT GOVERNMENT EXPENSE TO THE PLACE WHERE THE MEMBER GOES TO RESIDE FOLLOWING RETIREMENT. UNTIL SUCH PLACE HAS BEEN SELECTED AND TRAVEL TO IT HAS BEEN PERFORMED FOR THE PURPOSE OF ESTABLISHING A RESIDENCE NO RIGHT TO THE ALLOWANCE ACCRUES.

ON THE PRESENT RECORD IT MAY NOT BE CONCLUDED THAT YOU TRAVELED TO OAKLAND, CALIFORNIA, DURING THE PERIOD JUNE 24 TO 27, 1963, FOR THE PURPOSE OF ESTABLISHING ANY RESIDENCE AT THAT TIME.