B-154866, OCT. 15, 1964

B-154866, OCT. 15, 1964

TO CAPTAIN WILLIAM F. LYONS, UNS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1964, WHEREIN YOU IN EFFECT REQUEST REVIEW OF OUR SETTLEMENT OF JULY 22, 1964, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE INVOLVING PERSONAL TRAVEL AND REIMBURSEMENT FOR DEPENDENT'S TRAVEL FROM TREASURE ISLAND, CALIFORNIA, TO FRESNO, OHIO, INCIDENT TO YOUR RETIREMENT FROM THE NAVY, SEPTEMBER 1, 1963.

BY BUREAU OF NAVAL PERSONNEL ORDERS DATED JULY 29, 1963, ADDRESSED TO YOU WHILE YOU WERE AT YOUR STATION IN PEARL HARBOR, HAWAII, YOU WERE, WHEN DIRECTED, TO PROCEED TO A PORT IN THE CONTINENTAL UNITED STATES AND REPORT TO THE COMMANDANT OF THE NEAREST NAVAL DISTRICT FOR TEMPORARY DUTY AWAITING YOUR RETIREMENT. ENDORSEMENTS ON THE ORDERS INDICATE THAT YOU WERE DETACHED AUGUST 11, 1963, AND ON AUGUST 20, 1963, YOU REPORTED TO THE COMMANDANT, 12TH NAVAL DISTRICT, SAN FRANCISCO, CALIFORNIA, FOR TEMPORARY DUTY AWAITING RETIREMENT. FOURTH ENDORSEMENT INDICATES THAT YOU WERE RELEASED FROM ACTIVE DUTY ON AUGUST 31, 1963, THAT YOU CHOSE TO DELAY SELECTING A PERMANENT PLACE OF RESIDENCE AT THE TIME OF RETIREMENT, AND THAT UPON RELEASE FROM ACTIVE DUTY YOUR MAILING ADDRESS WOULD BE AT THE SAME ADDRESS WHERE YOU NOW RESIDE.

YOUR CLAIM FOR MILEAGE AND REIMBURSEMENT FOR DEPENDENT'S TRAVEL SHOWS THAT FOLLOWING YOUR TRAVEL FROM HONOLULU TO SAN FRANCISCO YOU AND YOUR WIFE LEFT TREASURE ISLAND, CALIFORNIA, ON AUGUST 31 AND ARRIVED AT FRESNO, OHIO, ON SEPTEMBER 2, 1963. SINCE THE ORDERS SHOWED YOU HAD NOT SELECTED A PERMANENT PLACE OF RESIDENCE AND THAT YOUR MAILING ADDRESS WAS THE SAME AS YOUR ADDRESS WHEN YOU WERE ON ACTIVE DUTY, THE NAVY FINANCE CENTER, BY LETTER OF MAY 21, 1964, REQUESTED FURTHER INFORMATION REGARDING YOUR RETURN TO HAWAII AND A STATEMENT AS TO WHEN YOU LEFT FRESNO, OHIO. YOU INDICATED IN MARGINAL NOTES ON THE PAPERS YOU FORWARDED TO THAT OFFICE THAT YOU HAD APPLIED AT SEVERAL PLACES FOR A CIVILIAN POSITION, INCLUDING ONE IN HAWAII AND ONE WITH THE OHIO DEPARTMENT OF HEALTH, AND THAT YOU HAD NO ASSURANCE OF EMPLOYMENT FROM ANY, SO YOU RENTED YOUR HOME AND WENT TO OHIO. YOU STATED FURTHER THAT YOU LEFT FRESNO, OHIO, ON SEPTEMBER 24, 1963. THE PAPERS YOU FORWARDED INDICATED THAT YOU WERE APPOINTED TO A POSITION WITH THE DEPARTMENT OF HEALTH, STATE OF HAWAII, EFFECTIVE OCTOBER 7, 1963.

IN RESPONSE TO A LETTER FROM OUR OFFICE REQUESTING ADDITIONAL INFORMATION REGARDING YOUR INTENT TO ESTABLISH A PERMANENT RESIDENCE AT FRESNO, OHIO, YOU STATED THAT WHEN YOU JOINED THE NAVY IN 1942 AND WERE TRANSFERRED TO THE REGULAR NAVY IN 1946, YOU WERE ASSURED YOU WOULD BE RETURNED TO THE PLACE OF YOUR ENTRY AT THE END OF YOUR CAREER. YOU STATED FURTHER THAT ON SEPTEMBER 1, 1963, YOU WERE A RESIDENT OF OHIO, BUT YOU REFUSED TO STATE WHETHER YOU INTENDED TO RETURN AND RESIDE AT THAT PLACE.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 22, 1964, FOR THE REASON THAT YOU DID NOT CLEARLY ESTABLISH THAT YOUR TRAVEL TO FRESNO, OHIO, WAS WITH THE INTENT OF ESTABLISHING A PERMANENT RESIDENCE AT THAT PLACE. IN YOUR LETTER OF JULY 28, 1964, YOU STATE THAT SINCE YOUR CLAIM FOR TRAVEL TO OHIO, WHICH WAS THE PLACE OF ENTRY INTO THE NAVY AND HOME OF RECORD, IS DENIED, YOU CONSIDER YOURSELF ENTITLED TO REIMBURSEMENT FOR TRAVEL FROM TREASURE ISLAND, CALIFORNIA, TO HONOLULU, HAWAII.

THE CONTROLLING STATUTE, 37 U.S.C. 404, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION. REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150-3 (B) OF THESE REGULATIONS PROVIDES THAT THE TERM "HOME OF SELECTION," AS USED IN THE REGULATIONS, MEANS A PLACE SELECTED BY A MEMBER AS HIS HOME UPON RETIREMENT. PARAGRAPH 4158-1A PROVIDES THAT A MEMBER UPON RETIREMENT MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES FROM HIS LAST DUTY STATION TO THE SELECTED HOME, PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. ALSO, PARAGRAPH 7012-1A PROVIDES FOR DEPENDENTS' TRANSPORTATION FROM THE MEMBER'S LAST PERMANENT DUTY STATION UPON RETIREMENT IF TRAVEL IS COMPLETED TO THE HOME OF SELECTION WITHIN ONE YEAR AFTER THE 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. 36 COMP. GEN. 774. THERE IS NO QUESTION THAT THE MEMBER MAY SELECT HIS HOME OF RECORD OR PLACE OF ENTRY INTO THE SERVICE, OR ANY OTHER PLACE, FOR THAT PURPOSE, BUT THE INTENT TO ESTABLISH A HOME AT THE SELECTED PLACE, AT THE TIME OF TRAVEL THERETO BY A MEMBER, IS A NECESSARY CONDITION PRECEDENT TO THE RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES TO SUCH PLACE, AND TRAVEL TO A PLACE AT WHICH HE DOES NOT INTEND TO ESTABLISH A HOME, BUT MERELY TO VISIT, MAY NOT BE CONSIDERED AS TRAVEL TO A SELECTED HOME AS CONTEMPLATED BY THE LAW AND REGULATIONS.

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 A MEMBER DOES NOT CLEARLY ESTABLISH HIS INTENTION BY TAKING UP AN EXTENDED RESIDENCE AT THAT 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'S STAY IN A PARTICULAR PLACE 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 THAT THE TRAVEL INVOLVED WAS NOT TRAVEL TO A SELECTED HOME WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS.

THE FOURTH ENDORSEMENT TO THE ORDERS OF JULY 29, 1963, SHOWED DATE OF RELEASE FROM ACTIVE DUTY AS AUGUST 31, 1963, AND INDICATED THAT YOU CHOSE TO DELAY SELECTING A PERMANENT PLACE OF RESIDENCE AT THE TIME OF YOUR RETIREMENT. IT ALSO SHOWED YOUR RESIDENCE IN HONOLULU AS YOUR MAILING ADDRESS. IT IS NOTED THAT YOU RENTED OUT YOUR HOME IN HONOLULU AND THAT DURING YOUR BRIEF STAY IN FRESNO, YOU WERE CONTINUING WITH YOUR NEGOTIATIONS FOR A POSITION WITH THE DEPARTMENT OF HEALTH, STATE OF HAWAII, WHICH WAS FINALLY CONSUMMATED WHEN YOU ACCEPTED ITS OFFER EFFECTIVE OCTOBER 7, 1963, AFTER WHICH YOU RETURNED TO YOUR HOME IN HONOLULU. IN THESE CIRCUMSTANCES THE RECORD DOES NOT SUPPORT OR JUSTIFY A CONCLUSION THAT YOU TRAVELED TO FRESNO, OHIO, FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE WITHIN THE PURVIEW OF THE PERTINENT STATUTE AND REGULATIONS.

WITH RESPECT TO YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL AND THAT OF YOUR DEPENDENT FROM TREASURE ISLAND TO HONOLULU, YOU ARE ADVISED THAT SINCE YOU ARE ENTITLED UNDER THE CITED LAW AND REGULATIONS TO TRAVEL ALLOWANCES FOR YOURSELF FROM LAST STATION (SAN FRANCISCO) TO SELECTED HOME AND FOR YOUR DEPENDENT FROM LAST PERMANENT STATION (PEARL HARBOR) TO SELECTED HOME INCIDENT TO YOUR RETIREMENT, NO BASIS EXISTS FOR THE PAYMENT OF THE ALLOWANCES ON THE BASIS OF THAT TRAVEL IN THE ABSENCE OF EVIDENCE THAT HONOLULU WAS YOUR SELECTED HOME.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF JULY 22, 1964, IS SUSTAINED.