DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1998-089 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  under  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  It was commenced 
upon the BCMR’s receipt of the applicant’s request on June 23, 1998. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  25,  1999,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 
The  applicant,  a  xxxxxxxxxxxxx  asked  the  Board  to  correct  his  military 
 
record to show that he never lost his “with-dependents” status for the purposes 
of  calculating  his  Basic  Allowance  for  Quarters  (BAQ)  and  Variable  Housing 
Allowance (VHA).1  He asked to receive the back pay and benefits he lost as a 
result of losing this status.   
 

In  the  alternative,  the  applicant  asked  to  be  repaid  the  sums  that  were 
deducted from his pay in 199x when the Coast Guard determined that he had 
been overpaid because he was not entitled to “with-dependents” status. 
 

                                                 
1   BAQ is the housing allowance of an enlisted member living in a private residence.  VHA is the 
additional housing allowance such members may receive if they are stationed in a region with 
high housing costs.  Both BAQ and VHA may increase if the member has dependents who reside 
with him or if the member pays a certain level of child support.  If a member qualifies for BAQ at 
the with-dependents rate (BAQ-W) based on actual physical custody (rather than child support 
payments), he automatically receives VHA at the with-dependents rate. 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  his  “with-dependents”  status  was  unjustly 
withdrawn and previous allowances were deducted from his salary after his ex-
wife told someone that he did not have custody of their children.  The applicant 
alleged that he had joint physical and legal custody of his children.  As proof, he 
submitted  a  copy  of  two  pages  of  his  divorce  decree  (discussed  below).    He 
alleged that the children reside with him for, in the aggregate, “six months out of 
the year with no more than a twelve day break in said residence.”  
 
 
The  applicant  alleged  that  the  xxxxxx  District  Personnel  Office  told  him 
that he could not receive BAQ at the with-dependents rate (BAQ-W) under the 
regulations  unless  he  had  physical  custody  of  his  children  for  90  consecutive 
days.    The  applicant  alleged  that  this  provision  did  not  apply  to  his  case.    He 
pointed out that, under the regulation, he cannot be considered a non-custodial 
parent unless his ex-wife is awarded primary physical custody.  He alleged that 
his wife was not awarded primary physical custody.  He further alleged that the 
90-day provision does not specify physical custody, and he has permanent joint 
physical and legal custody, which is longer than 90 days.  The applicant further 
alleged that, even if he had been awarded full custody of the children, he could 
not meet the 90-day rule because the children would visit his ex-wife. 
 
 
The applicant also alleged that the regulations concerning “with-depend-
ents”  status  conflict  with  other  laws  and  regulations.    He  alleged  that,  if  he 
waived his BAQ and VHA entitlements to reside in Family Government Hous-
ing, the rules would require his children to reside with him for at least 183 days 
and for at least a 30-day period with no break in custody.   
 

The  applicant  compared  himself  to  a  “geographical  bachelor,”  who 
remains  married  but whose  children  live  with  his  spouse  in  a  distant  location.  
He  alleged  that  such  geographical  bachelors  receive  BAQ-W  without  having 
their  children  reside  with  them  and  without  having  to  provide  any  proof  that 
they are supporting their children at all.  In contrast, the applicant alleged that 
his children reside with him for half the year, and he pays about $940 per month 
“to provide for their well being.”  Therefore, he alleged that the Coast Guard is 
denying him BAQ-W merely because he does not have a marriage certificate. 
 
 
The  applicant  alleged  that,  after  the  Coast  Guard  removed  his  “with-
dependents” status, it also ordered that previous allowances be deducted from 
his  pay.    He  applied  for  remission  of  those  sums,  but  his  request  was  rejected 
because  the  Coast  Guard  claimed  the  regulations  were  very  clear  and  that  he 
should  have  known  he  did  not  qualify  for  BAQ-W.    However,  he  alleged  the 
regulations  are  not  at  all  clear.    As  proof,  he  pointed  out  that  both  the  xxxxx 

District personnel and legal offices had been unable to determine his entitlement 
to  BAQ-W.    He  alleged  that  the  personnel  office  had  ultimately  relied  on  a 
determination  made  by  the  Coast  Guard  Human  Resources  and  Information 
Center  (HRIC).    Furthermore,  he  stated  that  no  one  at  the  xxxxxx  District  had 
known or informed him of any other “special conditions” that must be met, aside 
from custody, to qualify for BAQ-W.  In addition, he stated that the decision to 
deny remission was made before the xxxxxx District personnel office saw a copy 
of his divorce decree. 

SUMMARY OF THE RECORD 

 
 
The applicant submitted a copy of the first two pages of a “Decree Grant-
ing Absolute Divorce and Awarding Child Custody.” It was issued on August 3, 
199x, by the Family Court of the First Circuit of the State of xxxx.  The applicant 
is named as the defendant.  The decree indicates that the parties have two minor 
children.  The third paragraph, entitled “Custody of Minor Children,” states the 
following: 
 

Plaintiff and Defendant are awarded the joint legal and physical custody 
of the minor children of the parties.  Each party shall have the children 
for one-half (1/2) of the year; provided, Plaintiff shall have [the son] for 
one (1) day more than one-half (1/2) of the year and Defendant shall have 
[the daughter] for one (1) day more than one-half (1/2) of the year.  Visi-
tation  and  physical  custody  shall  be  in  accord  with  a  written  mutually 
agreed upon parenting plan.  The parties may vary the plan by mutual 
agreement. . . .  
 
All  decisions  which  materially  affect  the  health,  education  and  general 
welfare of the children of the parties hereto shall be made jointly by the 
parties. . . .  

 
 
The applicant also submitted a copy of a letter from Commandant to the 
HRIC dated March 3, 199x.  It states that the applicant’s request for remission of 
the overpayment of $619.82 is disapproved because the “regulations clearly state 
that a member must have physical custody for more than 90 consecutive days to 
qualify for the with dependents rate.”  It also informs him that the sum will be 
incrementally deducted from his pay. 
 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel 
 
 
On February 25, 1998, the Chief Counsel of the Coast Guard submitted an 
advisory opinion recommending that the Board deny the requested relief.  The 
Chief Counsel argued that the case should be “dismissed without prejudice for 
failure to state a claim under the jurisdiction of the BCMR.” 
 
 
The Chief Counsel acknowledged that the applicant asked “that his record 
be  ‘corrected’  to  indicate  that  he  was  eligible  for  Basic  Allowance  for Quarters 
(BAQ)  and  Variable  Housing  Allowance  (VHA)  at  the  with  dependents  rate.”  
But  then  he  argued  that  the  applicant    “point[ed]  to  no  error  in  the  record  or 
injustice that the BCMR can correct.  This is a monetary claim against the gov-
ernment that does not implicate the authority of the BCMR.”  The Chief Counsel 

stated that “the BCMR statute, 10 USC § 1552, does not authorize the BCMR to 
settle claims against the United States, and applications for such claims must be 
dismissed.” 
 
 
The  Chief  Counsel  alleged  that  the  applicant  “has  not  alleged  that  his 
record is factually incorrect.  He simply alleges that the Coast Guard has misap-
plied the law to the facts of his case. . . .  Even if he somehow was to prove that 
he was entitled to BAQ/VHA at the with dependents rate, any remedy would be 
a matter for the claims process, not for the BCMR.” 
 
 
Regarding the merits of the case, the Chief Counsel alleged that “[i]n 70 
Comp.  Gen.  703,  No.  B-240236  (12  September  1991),  the  Comptroller  General 
clearly states that when joint custody is awarded, a dependent child must reside 
with  the  member  in  private  quarters  for  a  continuous  period  in  excess  of  3 
months in order to qualify for BAQ/VHA at the with dependents rate.”  Because 
the applicant did not dispute the fact that his children do not reside with him for 
90  consecutive  days,  the  Chief  Counsel  argued,  “there  are  no  facts  in  dispute, 
only a dispute as to a matter of law that is beyond the jurisdiction of the BCMR.”  
The Chief Counsel further stated that the “Board must give due deference to the 
Coast Guard’s interpretation of laws that it is entrusted to administer, as well as 
to its implementing regulations.” 
 
Memorandum of the Office of Military Personnel 
 
 
the Office of Military Personnel (OMP) dated January 13, 1999. 
 
 
The  OMP  states  that  “Section  3-E-4.d.,  of  [the  Pay  Manual]  established 
that when a member has temporary custody of a dependent child, the child must 
reside with the member on a nontemporary basis for a continuous basis of more 
than 90 consecutive days to qualify for the with dependents rate of Basic Allow-
ance for Housing.”  The OMP also cited Comptroller General decision B-240236 
for  the  proposition  that  this  provision  applies  even  when  joint  custody  is 
awarded. 
 
 
The OMP alleged that the applicant  had informed the Coast Guard that 
his children attended school near his ex-wife’s residence and that this fact “sup-
ports our position that despite being awarded equal physical joint custody, the 
children’s primary residence is with his former spouse.” 
 

The Chief Counsel attached to his advisory opinion a memorandum from 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 
On February 25, 1999, the Chairman forwarded a copy of the views of the 
Coast Guard to the applicant and invited him to respond.  On March 9, 1999, the 
applicant submitted a response. 
 
 
The applicant reiterated that the “regulation clearly states that my former 
spouse must be awarded primary physical custody in order for me to be consid-
ered a non-custodial parent.  It does not say she must appear to have, or claim 
she has primary physical custody, it says she must be awarded primary physical 
custody.” 
 
 
The applicant alleged that the Coast Guard “did not grant [him] due proc-
ess in the submission of [his] claim” for remission because the HRIC denied his 
claim  even  before  sending  it  to  Integrated  Support  Command.    The  applicant 
also  alleged  that  the  Coast  Guard  had  violated  the  Privacy  Act  of  1972  by 
informing his ex-wife how much money was going to be deducted from his pay 
even before informing him. 
 

Despite the position of the Comptroller General, we see no adequate rea-
son why the Correction Board could not direct that this payment be made 
to  Captain  Oleson.  .  .  .    The  Comptroller  General  felt  that  the  Board’s 
power was merely to correct, change, or supplement facts set out in the 
original record, but the statute refers, not to alteration of the facts in the 
record,  but  to  a  correction  of  “any  military  record”  itself.  .  .  .    Records 
often  embody  and  reflect  legal  conclusions,  or  the  application  of  legal 
views to bare facts, and it is proper to say that such records are corrected 
when the Board changes those parts of the record which incorporate the 
administrative conclusions as to the legal effect of the facts. . . .  Id. at 16-
17. 

APPLICABLE LAW--JURISDICTION 

 
BCMR Statute 
 
 
According to 10 U.S.C. § 1552(a)(1), “[t]he Secretary of a military depart-
ment  may  correct  any  military  record  of  the  Secretary’s  department  when  the 
Secretary  considers  it  necessary  to  correct  an  error  or  remove  an  injustice.  .  .  .  
The  Secretary  of  Transportation  may  in  the  same  manner  correct  any  military 
record of the Coast Guard.” 
 
Oleson v. United States, 172 Ct. Cl. 9 (Ct. Cl. 1965). 
 
 
In holding that the Army BCMR had the authority to order the Army to 
pay the plaintiff back wages even though no fact in the applicant’s record had 
been changed, the court stated the following: 
 

 
This means, it is true, that, in cases in which the Correction Boards merely 
correct  legal  conclusions  embodied  in  military  records  and  payment  is 
then made to the claimant, the Boards will afford a second forum, alter-
native or additional to the courts, for relief of what would otherwise be 
conventional judicial claims.  The sweeping words of the statute permit 
that result . . . .  So long as the records contain a mistake or an omission 
bearing on pay—whether factual or legal—we think that the Boards have 
authority to consider the matter and then to order payment if they make a 
correction calling for a monetary award.  Id. at 18-19. 

 

APPLICABLE LAW—ENTITLEMENT TO BAQ-W 

 
Coast Guard Pay Manual (COMDTINST M7220.29) 
 
 
Article  3  of  the  Pay  Manual  governs  members’  entitlement  to  BAQ-W.  
Article  3-E-3.b.(2)(c)  states  that  divorced  members  who  are  claiming  a  child  of 
the  marriage  as  a  dependent  must  furnish  a  certified  copy  of  a  final  divorce 
decree. 
 
Article  3-E-4,  “Support  of  Dependents—General,”  contains  the  support 
requirements  for  members  with  children  whose  other  parent  is  not  a  member.  
The following are relevant excerpts from that article: 
 

Proof of Support of a Lawful Spouse or Unmarried Minor Child in 
a. 
the Custody of a Member is Generally Not Required.  However, when a 
complaint  of  nonsupport  or  inadequate  support  is  received  from  or  on 
behalf of a dependent, proof of support will be required.  Failure to sup-
port a dependent on whose behalf BAQ is being received, will result in 
nonentitlement to BAQ and recoupment for periods of nonsupport. . . . 
 
c. 
Legal Separation Agreement or Court Decree, Judgment or Order 
Silent on Support, Not Stating Amount of Support, or Absolving Member 
of Support Responsibility.  The aforementioned does not of itself deprive 
a member of BAQ for a lawful dependent. . . .  The member is entitled to 
BAQ if he or she contributes to the support of the dependents in the full 
amount of the BAQ, or a reasonable amount requested by or on behalf of 
the dependents, whichever is less, but in no case may the support contri-
butions  be  less  than  the  difference  between  the  member’s  applicable 
“with”  or  “without”  dependents  BAQ  rates.    If  satisfactory  evidence  is 
received that the member has not provided the support specified above, 
action will be taken to recoup BAQ from the member for any period such 
support was not provided. 
 
d. 
Legal  Separation  Agreement  or  Court  Order  Stating  Amount  of 
Support.  The member must contribute to the support of the dependent 

the  amount  specified  therein,  or  the  full  amount  of  BAQ,  whichever  is 
less, but in no case may the support payments be less than the difference 
between  the  applicable  BAQ  at  the  “with”  and  “without”  dependents 
rate.    If  satisfactory  evidence  is  received  that  the  member  has  not  pro-
vided  the  support  specified  above,  action  will  be  taken  to  recoup  BAQ 
from  the  member  for  any  period  adequate  support  has  not  been 
provided. 
 

(1)  When a member is divorced from a nonmember, and they 
share  legal  custody  of a  legitimate  child,  and  the  ex-spouse  is  awarded 
primary physical custody and is not living in government quarters, then 
the member is considered a noncustodial parent for the purpose of enti-
tlement to BAQ.  If the member’s court-ordered support is less than the 
difference between BAQ at the “with” and “without-dependent” rate for 
his/her grade, then member is not entitled to any BAQ on behalf of that 
child.  However, if the member is paying an amount of support greater 
than the difference between BAQ at the “with” and “without-dependent” 
rate, then member would be entitled to BAQ (child). . . . 
 

(2)  When the member has temporary custody of the child and 
they reside in private quarters, then the cost of maintaining a residence is 
not a factor in determining entitlement to BAQ with dependents and can-
not  be  used  instead  of  or  in  addition  to  child  support  to  qualify  for 
increased allowances.  The dependent child must reside with the member 
on a nontemporary basis, for a continuous period of more than 90 con-
secutive days, to qualify for the BAQ “with-dependent” rate for the non-
temporary period.  The cost of maintaining a home cannot be added to 
the child support amount to qualify for the increased allowances.  Refer-
ence 64 Comp Gen 224 and Comp Gen B-240236, 12 Sep 91. 

 
70 Comptroller General 703, September 12, 1991, B-240236 
 
In  this  case,  the  claimant  was  a  sergeant  in  the  Air  Force  who  claimed 
 
BAQ-W.  According to his divorce decree, the claimant shared legal custody of 
his son with his ex-wife, but his ex-wife was awarded primary physical custody.  
The son  spent approximately two days per week with the claimant during the 
school  year  and  approximately  three  days  per  week  during  the  summer.    The 
claimant paid $90 per month in child support. 
 
The  Comptroller  General  held  that,  to  be  entitled  to  BAQ-W  under  the 
 
regulations, the claimant would either (1) have to pay child support equal to or 
in excess of the difference between BAQ and BAQ-W or (2) have his son reside 
with him “on a nontemporary basis, e.g., for a continuous period in excess of 3 
months . . . .”  The Comptroller General cited the decisions in 69 Comp. Gen. 407 
(1990) and 64 Comp. Gen. 224 (1985) for this position. 

 
 
The Comptroller General had also been asked to address the same issue 
for a hypothetical situation in which a member was awarded joint physical cus-
tody.    He  first  noted  that,  if  both  parents  were  members  of  the  Service,  they 
would each receive BAQ at the with-dependents rate “for the periods when the 
child actually lives with him or her.  If support is paid, support payments will 
take  precedence  over  physical  custody.”    However,  “[i]f  only  one  parent  is  a 
member, . . . [d]uring a period when the child is living with the member in pri-
vate quarters for a continuous period in excess of 3 months, BAQ-W is payable 
without additional payment of child support.  The cost of maintaining a home is 
not a factor in determining entitlement to BAQ-W and cannot be used instead of 
or in addition to child support to qualify for increased allowances.” 
 
64 Comptroller General 224, January 29, 1985, B-215441 
 
 
Two claimants sought BAQ-W.  Neither had been awarded physical custo-
dy  of  his  children.    One  claimed  BAQ-W  for  a  period  of  continuous  visitation 
from  June  15,  1983,  to  September  5,  1983.    The  second  claimed  BAQ-W  for  a 
period  of  continuous  visitation  from  April  6,  1984,  to  September  1,  1984.    The 
Comptroller General characterized the issue as “what period of time constitutes 
more than a short visit for the purposes of providing an increased allowance to 
the members in the circumstances presented.”  The Comptroller General denied 
the first claimant BAQ-W because the period of visitation was less than 90 days 
and  thus  considered  temporary.    The  second  claimant  was  awarded  BAQ-W 
because his continuous visitation with his child had lasted for more than 90 days. 
 
69 Comptroller General 407, April 18, 1990, B-230318 
 
 
The  claimant  received  BAQ-W  because  of  the  level  of  child  support  he 
paid.  He sought to receive VHA at the with-dependents rate as well (VHA-W).  
The Comptroller General found that, under 64 Comp. Gen. 224 (see above), he 
qualified  for  VHA-W  only  for  periods  of  continuous  visitation  in  excess  of  90 
days. 

FINDINGS AND CONCLUSIONS 

 

 
 
The Board makes the following findings and conclusions on the basis of 
the applicant's military record and submissions, the Coast Guard's submissions, 
and applicable law: 
 

The Chief Counsel of the Coast Guard alleged that the Board does 
not  have  jurisdiction  over  this  case  because  it  is  essentially  a  monetary  claim 
against the United States.  The Chief Counsel argued that the applicant is asking 

1. 

the Board to overrule how the Coast Guard applied the regulations in his case, 
instead of asking the Board to correct a factual error in his record.  However, the 
applicant has asked the Board to correct Coast Guard records concerning his eli-
gibility  for  BAQ-W.    In  light of  10  U.S.C.  § 1552  and  the  decision  in  Oleson v. 
United States, 172 Ct. Cl. 9 (Ct. Cl. 1965), the Board finds that it has jurisdiction 
over this case. 
 

The application was timely. 

2. 

3. 

4. 

 
 
The  applicant  alleged  that  he  had  been  awarded  joint  physical 
custody of his children, which entitled him to have custody of them for half of 
each year.  He alleged that he had initially received BAQ-W but that it was can-
celed after the Coast Guard determined that he did not have custody of his chil-
dren for 90 continuous days.  The applicant alleged that this rule was wrongly 
and unfairly applied to him.  He further alleged that the Coast Guard had then 
unfairly deducted previous BAQ-W payments from his salary.  He argued that 
rejecting  his  application  for  remission  of  these  sums  was  unjust  because  the 
regulations  regarding  BAQ-W  in  his  circumstances  were  not  at  all  clear.    He 
asked  the  Board  to  correct  his  record  to  show  that  he  had  not  lost  his  “with-
dependents” status and therefore continued to qualify for BAQ-W and VHA-W.  
In the alternative, he asked the Board to order the Coast Guard to remit him the 
sums it had deducted as “overpaid” BAQ-W. 
 
The  Chief  Counsel  argued  that  the  applicant  was  not  entitled  to 
 
BAQ-W or to remission of the overpayments deducted from his pay.  The Chief 
Counsel alleged that, to qualify for BAQ-W, the applicant would have to show 
that he had custody of his children for a continuous period of more than 90 days. 
He cited Article 3-E-4.d.(2) and the decision in 70 Comptroller General 703, Sep-
tember 12, 1991, B-240236, for this 90-day requirement. 
 
 
The  regulations  concerning  BAQ-W  do  not  thoroughly  address 
cases  of  joint  physical  and  legal  custody.    As  interpreted  by  the  Coast  Guard, 
they would apparently deny BAQ-W to members with joint custody of their chil-
dren  if  the  children  stayed  with  a  nonmember  parent  just  one  weekend  per 
month  because  the  member’s  custody  would  not  meet  the  consecutive  90-day 
rule.  The denial of BAQ-W in such a case would appear to contradict the pur-
pose  of  Congress  in  creating  BAQ-W.    The  regulations  also  apparently  do  not 
apply the 90-day rule to cases in which both parents are members.  It is unclear 
why  the  Coast  Guard  has  created  greater  obstacles  for  the  children  of  mem-
ber/nonmember marriages to receive adequate housing than for the children of 
member/member  marriages.    Therefore,  the  Board  finds  the  Chief  Counsel’s 
argument that the applicant did not qualify for BAQ-W because he did not have 
custody of his children for 90 consecutive days unpersuasive. 

5. 

6. 

The part of the applicant’s divorce decree that he submitted entitles 
him to custody of his children for half of each year.  He alleged that his children 
reside with him for half of each year “with no more than a twelve day break in 
said  residence.”    The  applicant,  however,  submitted  no  proof  that  his  children 
reside with him for extended periods of time.  The regulations do not indicate 
that an award of joint custody in a divorce decree per se qualifies a member for 
BAQ-W.    The  applicant  also  presented  no  evidence  to  show  that  his  child 
support  payments  equal  or  exceed  the  difference  between  his  “with”  and 
“without” dependents BAQ rates.  Moreover, the regulations clearly warn mem-
bers  that  BAQ-W  payments  will  be  recouped  if  it  is  later  determined  that  the 
members did not meet the requirements. 

Therefore, the applicant has not proved to the Board that the Coast 
Guard committed an error or injustice in denying him BAQ-W and in recouping 
past BAQ-W payments from his pay.   

Accordingly, the applicant’s request should be denied.  However, 
the  Board  will  reconsider  his  application  if  he  reapplies  within  60  days  of  the 
date of this final decision and submits substantial evidence of his physical cus-
tody and support of the children for extended periods of time consistent with the 
terms of his divorce decree. 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
7. 

 
8. 

 

 
 
 
 

The  application  for  correction  of  the  military  record  of  XXXXXXXXX, 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Nancy Lynn Friedman 

 

 

 

 
 
Jacqueline L. Sullivan 

 

 

 
Sharon Y. Vaughn 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

USCG, is hereby denied.