DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1999-102 
 
 
   

 

 
 

FINAL DECISION ON FURTHER CONSIDERATION 

 
ANDREWS, Attorney-Advisor: 
 
 
The  original  proceeding  in  this  case,  BCMR  Docket  No.  1998-089,  was 
conducted according to the provisions of section 1552 of title 10 and section 425 
of title 14 of the United States Code.  The case was docketed on June 23, 1998.  On 
March  25,  1999,  the  Board  issued  a  final  decision  in  which  it  denied  relief  but 
agreed to reconsider the case if the applicant submitted further evidence within 
60 days.  On April 20, 1999, the applicant submitted further evidence and asked 
the Board to reconsider his case. 
 
 
This  final  decision  on  further  consideration,  dated  February  24,  2000,  is 
signed by the three duly appointed members who were designated to serve as 
the Board in this case. 
 

RELIEF REQUESTED 

 
 
The applicant, a xxxxxxxxxx, 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 back payments the Coast Guard denied 
                                                 
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.  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 
higher,  “with-dependents”  rate  (BAQ-W)  based  on  actual  physical  custody  (rather  than  child 
support payments), he automatically receives VHA at the higher, “with-dependents” rate (VHA-
W).  If a member pays child support in an amount equal to or greater than the difference between 
basic BAQ and BAQ-W, he receives basic BAQ plus “BAQ Child,” which together equal BAQ-W.  

him  when  it  determined  he  was  not  eligible  for  the  “with-dependents”  status 
from August 2, 1996, to August 14, 1998.   
 

In  the  alternative,  the  applicant  asked  to  be  repaid  the  sums  that  were 
deducted from his pay in 1998 when the Coast Guard determined that he had 
been overpaid from August 2, 1996, to June 30, 1997, because he was not entitled 
to BAQ at the “with-dependents” rate (BAQ-W). 
 

SUMMARY OF THE ORIGINAL CASE 

 
 
In BCMR Docket No. 1998-089, the applicant alleged that in July 1997, the 
Coast  Guard  unjustly  withdrew  his  “with-dependents”  status  and  deducted 
BAQ-W payments he had received since August 1996 from his salary after his ex-
wife  told  someone  that  he  did  not  have  custody  of  their  two  children.2    The 
applicant alleged, however, that the children resided with him for, in the aggre-
gate, “six months out of the year with no more than a twelve day break in said 
residence.”  In support of this allegation, he submitted an August 1995 divorce 
decree from a xxxx court.  The decree awarded him joint physical and legal cus-
tody of the children.  The decree states that he shall have physical custody of one 
child for one-half of each year plus one day (183 days) and that his ex-wife shall 
have physical custody of the other child for one-half of each year plus one day.  
The  decree  states  that  physical  custody  shall  be  arranged  “in  accord  with  a 
written mutually agreed upon parenting plan.”  “Primary custody” is not men-
tioned in the decree.  The applicant did not submit a copy of a parenting plan. 
 
 
In  a  Recommendation  for  Summary  Disposition,  the  Chief  Counsel  pri-
marily argued that the Board had no jurisdiction over the case.  He further stated 
that  the  Coast  Guard  withdrew  the  applicant’s  “with-dependents”  status  and 
recouped  previous  BAQ-W  payments  because  he  could  not  prove  that  he  had 
actual physical custody of his children for 90 consecutive days, which is one cri-
terion  for  BAQ-W  under  the  regulations.    The  Chief  Counsel  argued  that  the 
continuous 90-day requirement has been upheld by the Comptroller General in 
70 Comp. Gen. 703, No. B-240236 (1991). 
 

The applicant argued that the BAQ regulations do not adequately address 
situations of joint physical and legal custody.  He alleged that under the regula-
tions, he should not have been denied BAQ-W unless his ex-wife  had primary 
                                                                                                                                                 
However, a member who receives BAQ plus BAQ Child does not automatically receive VHA-W 
because the children may not live in an area of high housing costs. 
2  The applicant and his now ex-wife were divorced in xxxxx on xxxxx, 1995.  Prior to August 
1996, the applicant received basic BAQ plus BAQ Child based on his child support payments.  In 
August 1996 he applied for and was granted BAQ-W and VHA-W based on his representation 
that the children would be living with him.  

 

custody of the children, which she did not.  The applicant further argued that the 
consecutive  90-day  requirement  was  unjust  because,  even  if  he  had  been 
awarded full custody of the children, they would visit his ex-wife and be in her 
physical custody more often than once every three months.  The applicant also 
alleged  that  the  regulations  concerning  “with-dependents”  status  conflict  with 
other regulations.  He alleged that to reside in Family Government Housing, the 
rules require only that his children reside with him for at least 183 days and for 
one 30-day period each year with no break in custody.   

 
In its final decision, the Board found it had jurisdiction over the case but 
denied relief.  However, the Board provided for further consideration so that the 
applicant would have an opportunity to prove that his children lived with him 
for  extended  periods  of  time  during  the  months  he  had  been  denied  BAQ-W.  
The Board reasoned as follows: 

 
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 children 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  purpose  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 member/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. 
 

APPLICANT’S NEW ALLEGATIONS AND EVIDENCE 

 
In his application for further consideration, the applicant apologized for 
not submitting proof of his children’s residence with him in his first application.  
He explained that the proof had “already been supplied to the Coast Guard on 
numerous  occasions,”  and  he  had  assumed  the  Board  would  have  access  to 
everything he had sent to the Coast Guard.   

 
As new evidence, the applicant submitted a copy of a Supplemental Final 
Judgment  issued  by  a  xxxxxxxxx,  court  on  March  1,  1999,  which  modified  his 
divorce  decree.    He  also  submitted  copies  of  evidence  that,  he  alleged,  was 
entered into the record before the court concerning his history of child support 
payments and periods of actual physical custody of the children.  He alleged that 
his wife did not dispute any of the information in these records.   

 
The  applicant  submitted  copies  of  a  calendar  on  which  he  recorded  his 

 

dates of physical custody of the children from June 15, 1996, when he moved to 
xxxx, to the time he submitted his application for further consideration.  He also 
submitted  a  typed  list  of  the  custody  dates  and  a  typed  list  of  child  support 
checks from the date of his divorce until May 1998.  In addition, he stated that he 
submitted copies of his child support checks to the court, but they have not been 
returned to him.  He alleged, however, that he has previously sent copies of these 
checks to the Coast Guard. 

 
The  applicant  further  alleged  that  the  Coast  Guard  did  not  award  him 
“with-dependents” status again until he was transferred to a new duty station on 
August 14, 1998, even though they have been living with him continuously, with 
no  breaks,  since  May  1998.    He  submitted  a  copy  of  a  letter  indicating  that  a 
$619.82 overpayment of VHA-W had been recouped. 

 
Finally, the applicant argued that, since the Board found the Chief Coun-
sel’s  reliance  on  the  consecutive  90-day  rule  “unpersuasive”  and  that  rule  was 
the only reason he was denied BAQ-W, he should be granted relief. 

  

 

 

SUMMARY OF NEW EVIDENCE 

 
Applicant’s Calendar of Child Custody 

 
The applicant’s calendar of child custody, which he stated was submitted 
into evidence in court and not contested by his ex-wife, shows the days he had 
physical custody of the children crossed out with Xs from the date of his divorce 
in August 1996 to the date he applied for further consideration by the Board.   

 
The  calendar  shows  that  for the  11-month period  the  applicant  received 
BAQ-W payments that were later recouped, August 1996 through June 1997, he 
had custody of the children for all of August 1996 and the following number of 
days  (mostly  weekend  and  holiday  days)  in  the  other  10  months:    September 
1996, 11 days; October 1996, 7 days; November 1996, 10 days; December 1996, 24 
days; January 1997, 10 days; February 1997, 4 days; March 1997, 10 days; April 
1997, 12 days; May 1997, 10 days;  and June 1997, 16 days.  

 
After that period, the applicant’s schedule of custody was limited to some 
weekends and holidays until late May 1998.  In fact, the calendar indicates that, 
during the 21 months between August 1996, when the applicant had custody the 
entire  month,  and  June  1998,  when  he  again  had  continuous  custody,  xxxx  he 
had custody of the children 9 days per month, on average.  Since the last week of 
May  1998,  the  calendar  shows  that  the  applicant  has  had  continuous  physical 
custody of his children with no breaks.   

Court’s Supplemental Final Judgment 

 
On March 5, 1999, the Circuit Court in xxxxxxxxx, issued a Supplemental 
Final Judgment Modifying Primary Physical Residence, Visitation, and Support.  
The court stated that the modification was  necessary because the joint custody 
awarded by the xxxxx court “never worked well and now that the children are 
attending school, it does not work at all.”  On September 17, 1996, the applicant’s 
ex-wife had sued for “primary physical residence.”  When the trial concluded in 
July 1998, the court granted the ex-wife “primary physical residence,” although 
“evidence  at  trial  …  was  very  close  on  the  issue  of  who  should  have  primary 
physical  custody.”    However,  due  to  an  incident  that  summer,  the  court  in 
August 1998, reversed the decision and granted the applicant temporary primary 
physical custody.   

 
In  the  Supplemental  Final  Judgment,  the  court  awarded  the  applicant 
permanent primary physical residence based on the fact that (1) the children had 
been living with him continuously since May 1998 and were “doing better” and 
(2)  their  mother  had  not  visited  them  or  paid  any  support  for  them  since  the 
court issued the temporary order in August 1998.  

List of Checks 

 
The applicant submitted a typed list of checks that, he alleged, show his 
child support payments for the periods in question.  The list indicates that from 
date  of  his  divorce  through  May  1998,  the  applicant  paid  child  support  in  the 
amount of $600 monthly, with a few lapses that were made up the next month.  

 

 

 

VIEWS OF THE COAST GUARD 

 
 
On January 6, 2000, the Chief Counsel of the Coast Guard submitted an 
Advisory Opinion in which he recommended that the Board deny the applicant’s 
request. 
 

The Chief Counsel explained that, from the time of his divorce in August 
1995 until August 1996, the applicant received basic BAQ plus BAQ Child, which 
together equal BAQ-W, based on his child support payments.  In August 1996, he 
applied for and was granted BAQ-W because he submitted a copy of his divorce 
decree  and  signed  forms  CG-4170A,  CG-5425,  and  CG-5507,  attesting  that  his 
children were living with him and that he was entitled to BAQ-W.  Because he 
was  receiving  BAQ-W,  the  applicant  automatically  began  receiving  VHA-W.  
However,  after  his  ex-wife  questioned  her  congressman  about  the  matter,  the 
Coast Guard investigated and determined that the children spent the majority of 
their  time  with  the  ex-wife  and  that  the  applicant  was  not  entitled  to  “with-

dependents”  status.3    The  Chief  Counsel  submitted  a  statement  signed  by  the 
applicant’s  PERSRU [Personnel Reporting Unit] yeoman, who attested to these 
facts.  She stated that the investigation revealed that the applicant “might have 
had  183  days  of  physical  custody  but  they  never  amounted  to  90  consecutive 
days to the best of my recollection.”  Therefore, the Coast Guard recouped the 
overpayment of VHA-W. 
 
 
The  Chief  Counsel  alleged  that the  record  shows  that  the  applicant  was 
not  entitled  to  VHA-W  or  BAQ-W  during  the  11-month  period  in  question 
because  he  did  not  have  custody  of  the  children  for  90  consecutive  days.    The 
Chief Counsel argued that the Coast Guard’s regulations requiring 90 consecu-
tive  days  of  physical  custody  are  “neither  irrational  nor  unjust  and  are  ade-
quately supported by statute and the Service’s requirement for administrability.”  
The Chief Counsel alleged that the 90-day rule is “equitable and administrable,” 
and that, without it, the Coast Guard would “be forced to document the various 
coming  and  goings  of  children  of  divorced  members  and  make  at  least  two 
start/stop pay entries each pay period (every 2 weeks)” in accordance with Arti-
cles  3.D.10  and  3.D.11  of  the  Pay  Manual  (COMDTINST  7220.29).    The  Coast 
Guard  also  stated  that  the  applicant  and  his  divorce  counsel  could  have  but 
apparently failed to incorporate a custody arrangement in the divorce decree that 
would have met the 90-day requirement for VHA-W and BAQ-W. 
 

                                                 
3  The Chief Counsel stated that his office sought but did not find a copy of this investigation. 

 

The Chief Counsel pointed out that in the BAQ statute, 37 U.S.C. § 403, 
Congress delegated to the Secretary the authority to administer BAQ and make 
determinations  of  child  dependency.    Moreover,  the  Chief  Counsel  argued, 
under  subsection  (h)  of  that  statute,  the  Board  should  not  reverse  the  Coast 
Guard’s determination of the applicant’s ineligibility for BAQ-W absent fraud or 
gross  negligence.    The  Chief  Counsel  also  cited  decisions  by  the  Comptroller 
General upholding the 90-day rule, as he did in his Recommendation for Sum-
mary  Disposition  in  the  original  case.    See  70  Comp.  Gen.  703,  No.  B-240236 
(1991); 64 Comp. Gen. 224, No. B-215441, B-2155630 (1985). 
 

Citing Article 3.E.4.d.(2) of the Pay Manual and 37 U.S.C. § 403(m)(5), the 
Chief  Counsel  also  denied  that  the  criteria  for  BAQ-W  and  VHA-W  are  more 
stringent for children of member/nonmember divorced parents than for mem-
ber/member divorced parents.  He argued that when two members divorce, the 
armed  services  can  ensure  that  only  one  member  parent  receives  BAQ-W  and 
VHA-W, and therefore, “[a] 90-day rule for member/member dependency deter-
minations in light of the Services’ dominion over both member parents (whose 
interests are adverse) is duplicative and would create an administrative burden 
where none is required.”  

 
 
The Chief Counsel also argued that the primary issue in this case is the 
applicant’s  eligibility  for  VHA-W,  not  BAQ-W.    The  VHA-W  regulations,  he 
stated,  require  90  consecutive  days  of  custody,  but  “a  break,  or  breaks  if  for  5 
days or less, shall not be considered an interruption of the 90-day period.”  37 
U.S.C. § 403a; Joint Federal Travel Regulations (JFTR), Article U8012.  Therefore, 
a  member  with  custody  whose  children  visited  the  other  parent  on  weekends 
would be eligible for VHA-W.  However, the Chief Counsel argued, the appli-
cant did not have such custody.  In addition, he alleged, the applicant’s payment 
of child support is “a per se admission that his ex-spouse was the primary custo-
dian of the children.”  See COMDTINST 7220.29, Article 3.e.4.d.(1). 
 
 
Furthermore,  the  Chief  Counsel  argued,  even  if  the  Board  were  to  find 
that the 90-day rule is arbitrary and capricious, the applicant failed to submit the 
“substantial  evidence”  of  extended  periods  of  physical  custody  that  the  Board 
invited him to submit.  The Chief Counsel characterized the applicant’s calendar 
and list of payments as “nothing more than a retrospective listing constructed by 
Applicant for the purpose of this case.”  Moreover, the Chief Counsel argued, the 
Supplemental Final Judgment submitted by the applicant actually supports the 
Coast  Guard’s  position  that,  prior  to  August  1998,  the  children’s  primary  resi-
dence was with their mother. 
 
In addition, the Chief Counsel argued, assuming arguendo that the Board 
 
ignored the 90-day rule and found that the applicant had submitted “substantial 

 

evidence” of extended periods of custody, he has failed to prove that he actually 
paid housing expenses.  Although the applicant signed a form CG-5507 stating 
that he was paying $695 per month in rent, he has not submitted proof of that 
fact.  The Chief Counsel also submitted forms signed by the applicant and a copy 
of a xxxxxxx property record showing that the address the applicant listed as his 
residence  and  that  of  his  children  is  also  the  principal  residence  of  his  mother 
and is owned by her. 
 

Finally, the Chief Counsel indicated that, if the applicant continued to pay 
child support from August 1996 through June 1997, he may have been eligible to 
receive  BAQ  plus  BAQ  Child  for  that  period,  as  he  did  before  August  1996.  
However,  the  Chief  Counsel  argued,  the  applicant  “has  not  provided  a  court 
decree stating that child support payments are required in an amount equal to or 
exceeding  the  difference  between  BAQ-W  and  [basic  BAQ],  nor  has  he  docu-
mented that he made those payments under such a court decree.”  Therefore, the 
Chief Counsel argued, the applicant has failed to prove that he was entitled to 
BAQ Child during the period in question. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 6, 2000, the Chairman forwarded a copy of the views of the 
Coast  Guard  to  the  applicant  and  invited  him  to  respond  within  15  days.    On 
January 13, 2000, the applicant submitted a response. 
 
 
The applicant stated that the evidence he submitted is not inaccurate, as 
the  Chief  Counsel  alleged,  and  was  not  disputed  by  his  ex-wife  when  it  was 
entered into evidence in their custody case.  He reiterated his claim that he was 
the primary custodial parent for the period in dispute.  In response to the Chief 
Counsel’s argument that the applicant could have incorporated into his divorce 
decree  a  custodial  arrangement  meeting  the  90-day  requirement,  the  applicant 
alleged that he never received the documented counseling required for divorcing 
members under Article D.2.b.(2) of the Housing Manual. 
 
The  applicant  also  stated  that  payment  of  child  support  should  not  be 
 
considered evidence that he was not the primary custodial parent.  He explained 
that under xxx law, each parent pays child support to the other for the time the 
other parent has custody.  Thus, his ex-wife owed him child support for half the 
year and he owed her child support for half the year.  However, the reciprocal 
payments  vary  according  to  each  parent’s  income,  and  rather  than  have  both 
parents writing checks to each other, the amounts the lower-income parent owes 
the higher-income parent in child support are subtracted from what the higher-
income parent owes, and the higher-income parent pays the difference.  There-
fore, his child support payments reflect only the fact that he makes more money 

 

than his ex-wife; they do not at all indicate who has primary custody of the chil-
dren. 
 
The applicant alleged that he has already provided the Coast Guard with 
 
copies  of  his  rent  checks  and  child  support  checks,4  so  further  proof  of  these 
payments  should  not  be  necessary  to  receive  relief.    However,  the  applicant 
stated,  he  has  asked  the  BCMR  to  determine  whether  he  qualified  for  BAQ-W 
and VHA-W, not whether he qualified for BAQ Child. 

 
37 U.S.C. § 403.  Basic Allowance for Quarters  

APPLICABLE LAWS 

      (2) A member of a uniformed service shall not be entitled to a basic 
allowance  for  quarters  solely  by  reason  of  the  payment  of  child  support  if  the 

                                                 
4  The  applicant’s  response  indicates  that  he  believes  he  submitted  copies  of  his  child  support 
checks to the BCMR.  However, he did not submit copies of any checks.  In his application, he 
explained that the court had not returned his checks to him. 

 

 
(a)(1)  Except  as  otherwise  provided  by  law,  a  member  of  a  uniformed 
service who is entitled to basic pay is entitled to a basic allowance for quarters at 
the  monthly  rates  prescribed  in  accordance  with  section  1009  of  this  title  or  as 
otherwise prescribed by law, according to the pay grade in which he is assigned 
or distributed for basic pay purposes.  The allowance authorized by this section 
may be paid in advance. 

     (2) A member of a uniformed service with dependents is not entitled 
to a basic allowance for quarters as a member with dependents unless the mem-
ber makes an annual certification to the Secretary concerned indicating the status 
of each dependent of the member.  The certification shall be made in accordance 
with regulations prescribed by the Secretary of Defense. 

•   •   • 

•   •   • 

(h) The Secretary concerned, or his designee, may make any determina-
tion  necessary  to  administer  this  section  with  regard  to  enlisted  members, 
including determinations of dependency and relationship, and may, when war-
ranted  by  the  circumstances,  reconsider  and  change  or  modify  any  such  deter-
mination.  The Secretary concerned or his designee may redelegate this author-
ity.  Any determination made under this section with regard to enlisted members 
is final and is not subject to review by any accounting officer of the United States 
or a court, unless there is fraud or gross negligence. 

(m)(1) Except as provided in paragraph (2), in the case of a member of a 
uniformed service who is assigned to quarters of the United States or a housing 
facility  under  the  jurisdiction  of  a  uniformed  service  and  who  is  authorized  a 
basic allowance for quarters solely by reason of the member's payment of child 
support, the amount of the basic allowance for quarters to which the member is 
entitled shall be equal to the difference between the basic allowance for quarters 
applicable to the member's grade, rank, or rating at the with-dependent rate and 
the applicable basic allowance for quarters at the without-dependent rate. 

 

 

monthly rate of that child support is less than the amount of the basic allowance 
for quarters computed for the member under paragraph (1). 

 
37 U.S.C. § 403a.  Variable Housing Allowance  
 

(4)  In the case of a member with dependents— 
 
 

 
(a)(1) Except as provided in subsection (b) of this section, a member of 
the  uniformed  service  entitled  to  basic  allowance  for  quarters  is  entitled  to  a 
variable housing allowance under this section whenever assigned to duty in an 
area of the United States which is a high housing cost area with respect to that 
member. . . .  
 
 
(A)  who is assigned to duty inside the United States; 
 
(B)  who is authorized to receive the basic allowance for quarters 
at  the  rate  established  for  a  member  with  dependents  solely  by  reason  of  the 
payment of child support by the member; and 
 
tion of an uniformed service, 
 
the member may be paid a variable housing allowance at the rate applicable to 
member without dependents serving in the same grade and at the same location. 

(C)  who is not assigned to a housing facility under the jurisdic-

 

 
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: 
 

a. 
Proof of Support of a Lawful Spouse or Unmarried  Minor Child in 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  support  a  dependent  on  whose 
behalf BAQ is being received, will result in nonentitlement to BAQ and recoup-
ment 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 contrib-
utes to the support of the dependents in the full amount of the BAQ, or a reason-
able amount requested by or on behalf of the dependents, whichever is less, but 
in no case may the support contributions 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 speci-
fied 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 provided the support specified above, action will be taken to 
recoup  BAQ  from  the  member  for  any  period  adequate  support  has  not  been 
provided. 
 

When a member is divorced from a nonmember, and they share 
legal custody of a legitimate child, and the ex-spouse is awarded primary physi-
cal custody and is not living in government quarters, then the member is consid-
ered a noncustodial parent for the purpose of entitlement to BAQ.  If the mem-
ber’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). . . . 
 

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 cannot 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  consecutive  days,  to  qualify  for  the  BAQ 
“with-dependent” rate for the nontemporary period.  The cost of maintaining a 
home cannot be added to the child support amount to qualify for the increased 
allowances.  Reference 64 Comp Gen 224 and Comp Gen B-240236, 12 Sep 91. 

(1) 

(2) 

 
 
Article 3.D.5. of the Pay Manual provides that the dependency of a legiti-
mate child of an enlisted member is to be determined by his commanding officer.  
Article  3.D.10.  specifies  that  BAQ  payments begin  on  the  date the dependency 
begins or, if dependency is in doubt, on the date the commanding officer deter-
mines  that  dependency  exists.    Article  3.D.12.  requires  members  annually  to 
validate their entitlement to BAQ-W annually for the previous year. 
 
 
Article  3.D.15.  states  that  BAQ  Child  is  received  by  members  who  pay 
monthly  child  support  in  an  amount greater  than the  difference between  basic 
BAQ and BAQ-W, and BAQ Child is equal to that difference in rates. 
 
Article  3.D.16.  states  that,  if  two  divorced  parents  both  serve  on  active 
 
duty and share joint custody of their children, the parent maintaining the princi-
pal residence and “extended physical custody” receives BAQ-W, and the other 
parent  receives  basic  BAQ,  assuming  the  children  do  not  live  in  government 
quarters. 

Joint Federal Travel Regulations 

 

 

 
W for members with physical custody of children:  

Article U8012 of the JFTR provides the following with respect to VHA-

 

 

Generally, a divorced or legally separated member with legal custody of a child 
or children of the marriage is entitled to VHA at the with dependent rate.  How-
ever,  a  member  parent  who  has  physical  custody,  but  not  legal  custody,  of  at 
least  one  child  is  entitled  to  VHA  at  the  “With”  dependent  rate  when  the  fol-
lowing conditions are met: 
the member must be entitled to BAQ, and 
1. 
2. 
physical custody must be for a minimum of 90 consecutive days (a break, 
or breaks if for 5 days or less, shall not be considered an interruption of the 90-
day period). 
Note:    2.   In  cases  where  the  child  or  children  are  in  the  physical  custody  of  a 
member  paying  child  support  for  more  than  90  consecutive  days  (excluding  a 
break or breaks for 5 days or less). Such member isn’t considered to be receiving 
BAQ at the “with” dependent rate solely because he or she is paying child sup-
port. 

 

 

 
Coast Guard Housing Manual (COMDTINST ) 
 
 
members living in government housing: 
 

Article D.2.b. of the Housing Manual states the following with regards to 

(2)  The member provides the command with a written notice of separation [from 
a spouse] usually within 30 days after actual, physical separation.  The command 
then must provide documented counseling to the member to advise him or her 
of  housing  eligibility  status,  options,  the  date  eligibility  ceases,  and  his  or  her 
entitlement to one AFC-30 local move…. 
 
(3)    To  be  eligible  for  continued  housing  entitlements,  the  certified  separation 
agreement  and/or  final  divorce  decree  must  require  the  member  to  provide 
custody  of  a  dependent  for  more  then  50  percent  of  the  year  (FY  or  CY)—183 
days  or  more,  not  necessarily  consecutively.    The  member  must  have  actual, 
physical custody.  The member must also amend their CG-5267, “Application for 
Government  Housing,”  stating  that  the  dependents  listed  will  reside  with  the 
applicant more than 50 percent of the time. 

APPLICABLE CASES 

 
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 cus-
tody 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: 
 

1. 

The Board has jurisdiction over this case pursuant to section 1552 of 

title 10 of the United States Code.  The application was timely. 
 

2. 

The applicant alleged that his VHA-W payments from August 1996 
through June 1997 were unjustly recouped by the Coast Guard.  He also alleged 
that he has been eligible for BAQ-W and VHA-W since August 1996 based on his 
children’s  residence  with  him  but  that  the  Coast  Guard  has  only  granted  him 
"with-dependents” status since August 1998. 

In the Board’s original decision in this case, it denied relief but pro-
vided for further consideration on the chance that the applicant could prove that, 
during the time in question, his children resided with him for extended periods 
and that the consecutive 90-day rule prescribed in Article 3.E.4.d.(2) of the Pay 
Manual  had  been  unfairly  applied  to  deny him  and  his  children  the  benefit  of 
BAQ-W.   

Assuming that the calendar and dates submitted by the applicant 
accurately represent his physical custody of the children, the Board finds that the 
applicant did not have custody of his children from August 1996 through May 
1998 for such extended periods of time as would make the recoupment of VHA-
W and denial of “with-dependents” status unjust.  While his divorce decree enti-
tled him to custody for at least half of each year, the calendar shows that he did 
not actually have custody for as many days as he was entitled to.  The calendar 
shows that he had custody for the entire month of August 1996 and that from 
September 1996 through May 1998, he had custody of his children for 9 days per 
month, on average.  Furthermore, it shows that his custody was generally limited 
to  weekends  and  school  holidays.    This  pattern  of  custody  does  not  meet  the 
standard set for VHA-W under Article U8012 of the Joint Federal Travel Regula-
tions.  Therefore, the Coast Guard did not err or commit injustice when it deter-
mined that the applicant was  not eligible for BAQ-W or VHA-W based on the 
pattern of his custody of the children.  

 
3. 

 
4. 

 
5. 

 

 

The  Chief  Counsel  argued,  in  essence,  that  the  Board  should  not 
question the validity or application of the consecutive 90-day rule.  Because the 
applicant has failed to prove that he had actual physical custody of his children 
for extended periods of time from August 1996 to May 1998, it is unnecessary for 
the Board to address the fairness of the rule or the Chief Counsel’s other legal 
arguments. 

6. 

The applicant alleged that he was not granted BAQ-W until August 
1998, two months after the onset of this children’s continuous residence with him 
in late May 1998.  However, the record indicates that up until August 1998, the 
applicant was expected to return the children to his ex-wife’s custody after the 
summer  vacation.    Moreover,  the  record  indicates  that  in  July  1998,  the  judge 
granted the ex-wife primary physical custody.  Therefore, the Board concludes 
that the Coast Guard did not err or commit an injustice by failing to grant the 
applicant “with-dependents” status until the court awarded him temporary pri-
mary physical custody in August 1998.  

 
7. 

The applicant alleged that the Coast Guard had a duty to counsel 
him properly concerning BAQ-W and VHA-W regulations prior to his divorce, 
under Article D.2.b. of the Housing Manual, but failed to do so.  Article D.2.b., 
however,  requires  counseling  concerning  “housing  eligibility  status”  and 
“options”  for  members  who  are  living  in  government  housing  at  the  time  of 
separation.  Moreover, it is incumbent upon the member to inform his command 
of his separation.  However, even if the Coast Guard had a duty to counsel the 
applicant as he alleged, failure to counsel applicant would not make the Coast 
Guard liable for VHA-W payments to which he was not entitled because he did 
not have custody of his children for extended periods.  
 

The applicant alleged that the 90-day rule was unfairly applied to 
him  because  members  qualify  for  family  government  housing  as  long  as  they 
have custody for at least 183 days per year and for one 30-day period with no 
break in custody.  The Board finds that it is not inequitable for the Coast Guard 
to  use  different  standards  for  determining  eligibility  for  family  government 
housing than it uses for determining eligibility for BAQ-W and VHA-W. 
 

8. 

9. 

The Chief Counsel indicated that if the applicant continued to pay 
child support from August 1996 through June 1997, he may have been entitled to 
continue to receive BAQ Child, as he did  prior to August 1996.  However, the 
applicant  failed  to  submit  to  the  Board  proof  of  such  payments,  and  he  stated 
that  he  has  not  asked  the  Board  to  determine  his  eligibility  for  BAQ  Child.  
Therefore, the Board is not required to consider this issue. 

 
10. 

The applicant has not proved by a preponderance of the evidence 
that  the  Coast  Guard  committed  any  error  or  injustice  by  denying  him  “with-
dependents” status during the periods in question or by recouping past VHA-W 
payments from his pay.   

 
11.  Accordingly, the applicant’s request should be denied.   

 
 

 

 
 

 
 

 
 

USCG, is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
David H. Kasminoff 

 

 

 
Karen L. Petronis 

 

 

 
Coleman R. Sachs 

 

 

 

 

 

 

 

 

 

The  application  for  correction  of  the  military  record  of  XXXXXXXX, 

ORDER