DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-012 
 
XXXXXXXX XXXXX 
Xxx xx xxxxx, ET2/E-5 
   

 

 
 

FINAL DECISION 

 
AUTHOR: Hale, D. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552  of  title  10  and  section  425  of  title  14  of  the  United  States  Code.    The 
application  was  docketed  on  October  26,  2004,  upon  receipt  of  the  applicant’s 
completed application and military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  28,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, an Electronics Technician, Second Class (ET2), in the Coast 
Guard, asked the Board to correct his military record to show that he is entitled 
to Basic Allowance for Housing (BAH) payments at the dependent rate (BAH-W) 
beginning on December 16, 1998.1  He alleged that he is entitled to receive BAH-
W because he was awarded physical custody of his son in a divorce decree dated 
December 16, 1998.  
 
 
The  applicant  further  alleged  that  notwithstanding  the  December  1998 
divorce  decree  wherein  he  was  awarded  physical  custody,  he  and  his  ex-wife 
agreed that she would retain physical custody of the child and that he would pay 
her  voluntary  child  support  on  a  monthly  basis.    Finally,  he  alleged  that  his 
                                                 
1 In general, the amount of BAH members receive depends on location, pay grade, and whether 
they  have  dependents.    BAH-W  varies  by  pay  grade,  but  it  roughly  provides  the  member  an 
additional sum of $100 to $200 per month.  

former wife remarried in 1999 and the child continued to reside with the mother 
and her new husband. 

 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard on July 27, 1993.  The applicant 
 
had a child with another Coast Guard member in October 1995, and the couple 
married  on  March  16,  1996.    The  records  indicate  that  they  separated  in 
September  1996  and  were  divorced  on  December  16,  1998.    Pursuant  to  the 
divorce decree, the applicant was awarded physical custody of the minor child, 
and  the  mother  was  ordered  to  pay  the  applicant  child  support  of  $125  per 
month.  The child remained with the mother, with the exception of the summer 
of 2002 when the child stayed with the applicant for approximately one  month.  
 

 
The applicant submitted a copy of the first two pages of a Divorce Decree 
and Judgment awarding child custody that was issued on December 16, 1998, by 
the Superior Court of California, County of Alameda.  The applicant is named as 
the  petitioner.    The  decree  indicates  that  the  parties  “shall  have  joint  legal 
custody.    [The  applicant]  shall  have  physical  custody  of  [the]  minor  child  … 
subject  to  reasonable  visitation  rights  awarded  to  Respondent  upon  mutual 
agreement of the parties, and contingent on the parties’ schedules.”  According 
to  the  applicant  and  the  Coast  Guard,  the  applicant  was  also  married  from 
December 1998 to February 2000. 
 

According to the applicant, the mother, the child, and her new husband 
moved  to  Massachusetts  in  May  2001.    On  May  6,  2002,  the  mother  filed  a 
Complaint  for  Modification  of  a  Foreign  Divorce  Decree  in  Massachusetts 
wherein  she  sought  court-ordered  physical  custody  of  the  child  and  a  child 
support order.  On June 14, 2002, the court granted the mother temporary legal 
and physical custody.  
 

 
On December 31, 2002, the Probate & Family Court in Massachusetts ruled 
“that  a  grant  of  joint  legal  custody  of  the  child,  with  physical  custody  to  the 
mother,  is  in  the  best  interests  of  the  child.”    The  court  further  noted  that  the 
mother had been the primary caretaker for the child’s entire life and that he had 
adjusted well to his life in Massachusetts.  The court ordered the applicant to pay 
the  sum  of  $350.00  per  month  to  the  mother  as  child  support,  commencing  on 
January 1, 2003.   

 
The Coast Guard’s pay records for the applicant indicate that he was paid 
BAH-W from December 1998 through April 7, 2000.2  From April 2000 through 

                                                 
2 An e-mail message in the record notes that the applicant should not have received BAH-W for 
March  2000  since  he  was  divorced  in  February  2000.    It  is  not  clear  whether  this  was  ever 
recouped. 

July 4, 2002, the applicant received BAH at the without dependents rate (BAH-
WO) but received a “BAH differential” during this period.3 

 
The records also indicate that the applicant received BAH-W from July 5, 
2002, through December 2002, when he was ordered by the Massachussetts court 
to pay child support as of January 1, 2003.  The reason for his receipt of BAH-W 
during  these  months  is  unclear  since  the  applicant  was  not  married  and  his 
former spouse had physical custody of their child during this time.4 
 

 

VIEWS OF THE COAST GUARD 

 

 
On March 10, 2005, the Judge Advocate General (JAG) of the Coast Guard 
submitted  an  advisory  opinion  in  which  he  adopted  the  findings  of  the  Coast 
Guard Personnel Command (CGPC) and recommended that the Board deny the 
applicant’s request.  The JAG argued that the applicant failed to meet his burden 
of production and persuasion and that the “only evidence that he  produced to 
show  his  entitlement  to  [BAH-W]  was  his  divorce  decree  in  which  he  was 
awarded physical custody of his son.”  The JAG stated that the applicant was not 
entitled to BAH-W because he “never had  physical  custody of his son; the son 
continued to reside with his mother from before the decree through the present.” 
 
 
The JAG also argued that the Board should deny relief because the Coast 
Guard did not commit an error or injustice that shocks the sense of justice, and 
that under 10 U.S.C. § 1552(1), the BCMR may only correct errors and injustices 
that “shock the sense of justice.”  Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), 
citing Reale v. United States, 208 Ct. Cl. 1010, 1011, cert. denied, 429 U.S. 854, 50 L. 
Ed. 2d 129, 97 S. Ct. 148 (1976). 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On March 14, 2005, the BCMR sent the applicant a copy of the views of the 
 
Coast  Guard  and  invited  him  to  respond  within  30  days.    No  response  was 
received.  
 

APPLICABLE LAW 

 

                                                 
3  BAH  differential  (BAH-DIFF)  is  a  housing  allowance  authorized  for  members  who  pay  child 
support.  A member is not entitled to BAH-DIFF if the monthly rate of that child support is less 
than the BAH-DIFF.  Article 3.C.2.c. 
4  E-mail  messages  in  the  record  indicate  that  the  Coast  Guard  is  aware  that  the  applicant  had 
neither wife nor child living with him on a permanent basis from July 5, 2002, through December 
2002.  It is not clear whether the BAH-W he received for this period was ever recouped.  

37 U.S.C. § 403.  Basic Allowance for Housing  
 
Title 37 U.S.C. § 403 provides that: 
 

(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  housing  at  the 
monthly  rates  prescribed  under  this  section  or  another  provision  of  law  with 
regard  to  the  applicable  component  of  the  basic  allowance  for  housing.    The 
amount of the basic allowance for housing for a member will vary according to 
the  pay  grade  in  which  the  member  is  assigned  or  distributed  for  basic  pay 
purposes, the dependency status of the member, and the geographic location of 
the member.  
 

(2) A member of a uniformed service with dependents is not entitled to a 
basic  allowance  for  housing  as  a  member  with  dependents  unless  the  member 
makes  a  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. 

Coast Guard Pay Manual (COMDTINST M7220.29) 
 

 

Article  3.C.2.  of  the  Pay  Manual  states  “BAH  is  payable  to  members  on 
active duty and will vary according to the grade in which serving or appointed 
for  basic  pay  purposes,  dependency  status,  and  the  permanent  duty  station 
(PDS)  assigned.    This  allowance  is  authorized  for  members  both  ‘with’  and 
‘without’ dependents.”  
 

Article  3.C.3.c.  of  the  Pay  Manual  provides  that  determinations  of 
dependency  and  relationships 
the 
commanding  officer.    Commanding  Officer,  Coast  Guard  Human  Resources 
Services & Information Center (LGL) shall make determinations of dependency 
and relationships (secondary dependents and doubtful primary dependents). 

(primary  dependents)  are  made  by 

 
Article  3.F.5.d.  of  the  Pay  Manual  provides  that  “[W]hen  a  member  has 
temporary  custody  of  a  child  and  they  reside  in  private  quarters…[t]he 
dependent child must reside with the member on a non-temporary basis (e.g., for 
a continuous period of more than 90 consecutive days) to qualify for [BAH-W] 
for the temporary period.”  

 

Memorandum of the Office of Military Personnel 
 
 
The  Office  of  Military  Personnel  (OMP)  stated  on  January  13,  1999,  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  Allowance  for  Housing.”    The 
OMP also cited Comptroller General decision B-240236 for the proposition that 
this provision applies even when joint custody is awarded. 
 

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  concerning  this  matter  pursuant  to  10 

U.S.C. § 1552.  The application was timely. 

2. 

The applicant argued that his record should be corrected to show 
that  he  is  entitled  to  receive  BAH-W  from  the  date  he  was  awarded  physical 
custody of his son pursuant to the December 16, 1998, divorce decree.  The JAG 
recommended  that  the  Board  deny  relief  because  the  applicant’s  ex-wife  had 
physical possession of their son at all times, with the exception of a period of less 
than  90  days  (approximately  one  month)  in  the  summer  of  2002.    The  Board 
notes that the applicant acquiesced to the son’s remaining with his mother and 
that he agreed to provide child support payments to his ex-wife notwithstanding 
the fact that the divorce decree ordered the mother to pay child support to the 
applicant. 

3. 

The  records  indicate  that  the  applicant  was  paid  BAH-W  from 
December 1998 through April 7, 2000.  From April 8, 2000, through June 2002, the 
applicant received BAH-WO and BAH-DIFF.  The applicant was not entitled to 
receive  BAH-W  during  the  latter  period  because,  as  he  admitted,  he  was  not 
married and his child was living with the his ex-wife since that time.  Pursuant to 
Article  3.F.5.d.2.  of  the  Pay  Manual,  the  applicant  was  not  entitled  to  BAH-W 
because his child did  not reside with him on a non-temporary basis (e.g., for a 
continuous period of more than 90 consecutive days) so as to qualify for BAH-W.  

 
4. 

The records also indicate that the applicant received BAH-W from 
July 2002 through December 2002.  The reason for this change is unclear since he 
was  not  married  and  his  former  spouse  had  physical  custody  of  their  child 
during  this  time.    Although  the  applicant  had  his  son  with  him  from  July  22, 
2002, through August 21, 2002, under Article 3.F.5.d.2. of the Pay Manual, a visit 
of less than 90 days would be characterized as a temporary visit and would not 
trigger the applicant’s eligibility for BAH-W.  

 

5. 

6. 

Therefore, the applicant has not proved that he was denied BAH-W 
during any period in which a wife or child lived with him on a permanent basis.    
 
 
 
 

Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

The application of XXXXXXXXXXXX, xxx xx xxxx, USCG, for correction of 

his military record is denied. 

ORDER 

 

 
 
 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

        

 
 
 David Morgan Frost 

 

 

 

 

 
 Patrick B. Kernan 

 

 

 
 Audrey Roh