DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-047 
 
Xxxxxxxxxxxxxxxxx  
  xxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR: Ulmer, 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 Chair docketed the 
case  on  January  30,  2006,  upon  receipt  of  the  applicant’s  completed  application  and 
military records. 
 
 
duly appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 2, 2006, is adopted and signed by the three 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his military record to show that he was 
entitled to full basic allowance for housing (BAH) 1, rather than BAH-II, 2 for the period 
of active duty from September 6, 2005, through October 19, 2005. The applicant stated 
that,  after  making  several  appeals,  he  was  told  on  January  3,  2006,  that  he  was  not 
entitled to BAH. 
 

                                                 
1   BAH is a monthly housing allowance for members on active duty.  It varies according to the grade in 
which serving or appointed for basic pay purposes, dependency status, and the permanent duty station 
(PDS) assigned.  Chapter 3.C.1. of the Pay Manual.   It consists of the former allowance known as Basic 
allowance for quarters (BAQ) and variable housing allowance (VHA). Chapter 3.C.2.a. of the Pay Manual. 
2 BAH-II is the equivalent to what used to be basic allowance for  quarters (BAQ).  It does  not vary by 
geographic  location.    It  is  the  housing  allowance,  or  is  used  to  calculate  the  housing  allowance  for 
members  in  particular  circumstances,  such  as  reservists  on  active  duty  for  less  than  20  weeks  .  .  . 
members with court-ordered child support, and members in confinement, etc.    Chapter 3.C.2.b. of the 
Pay Manual. 

 
The applicant, a Reservist, served on active duty for special work (ADSW) orders 
during the Hurricane Katrina relief effort from September 6, 2005, through October 19, 
2005.   He received BAH-II for this active duty period, but believes that he was entitled 
to  full  BAH  based  upon  his  interpretation  of  Chapter  12.F.1.  of  COMDTINST 
M7220.29A (Coast Guard Pay Manual), hereafter referred to as the Pay Manual.  This 
provision states as follows: 
 

a. . . . Except as provided in subparagraph b. below, a reserve component 
member called or ordered to active duty for 139 days or less is entitled to 
BAH-II.    However,  if  the  member  receives  an  order  modification  or 
extension  of  assignment,  the  prospective  period  of  active  duty  (as 
measured from the date the orders are amended to the new ending date) 
must  total  140  days  or  more  and  BAH  would  start  on  the  date  of 
modification.    Members  whose  orders  originally  called  or  ordered  the 
member to active duty for 140 days or more are entitled to BAH. 
 
b.    Contingency  Operations.    A  reserve  component  member  called  or 
ordered to active duty in support of a contingency operation (other than a 
member who is authorized transportation of household goods as a part of 
the call or order) is entitled to BAH, if the member is unable to continue to 
occupy the primary residence because of the call or order to active duty.  
This applies when the residence is maintained as the primary residence of 
the member when called or ordered to active duty and is owned  by the 
member or for which the member is responsible for rental payments.   

 

A contingency operation is defined as a military operation that is designated by 
the  Secretary  of  Defense  as  one  in  which  members  of  the  armed  force  are  or  may 
become involved in military actions, operations, or hostilities against an enemy of the 
United  States  or  against  an  opposing  military  force.    A  contingency  operation  is  also 
defined  as  a  military  operation  that  results  in  a  call  or  order  to  active  duty  under  10 
U.S.C.  §§  672(a),  673,  673b,  673c,  688,  3500,  or  8500,3  or  any  other  provision  of  law 
during a war or national emergency declared by the President or Congress.  See figure 
3-8, Note 3. of the Coast Guard Pay Manual. 

 
The applicant argued that he was entitled to BAH because both the President and 
the  Secretary  of  Defense  declared  a  national  emergency  with  respect  to  Hurricane 
Katrina. 
  In  this  regard,  he  submitted  a  Presidential  Proclamation  entitled:  
"Proclamation by the  President:  To  suspend Subchapter IV of Chapter 31 of Title 40, 
United  States  Code,  Within  a  limited  Geographical  Area  in  Response  to  the  National 

                                                 
3      These  sections  of  the  title  10  have  been  renumbered,  except  that  sections  3500  and  8500  have  been 
abolished  and  section  688  remains  unchanged.    The  renumbered  sections  are  10  USC  §§  12301,  12302, 
12304, & 12305. 

Emergency  Caused  by  Hurricane  Katrina."    The  proclamation  specifically  stated, 
"Hurricane  Katrina  constitutes  a  'national  emergency'  within  the  meaning  of  section 
3147 of title 40, United Stated Code."4  
 
 
The  applicant  also  submitted  a  memorandum  from  the  Under  Secretary  of 
Defense  entitled:    "Increased  Thresholds  for  Procurements  in  Support  of  Hurricane 
Katrina  Relief  Efforts".    The  Under  Secretary  authorized  the  use  of  the  special 
procurement authorities in 41 U.S.C. 428a to increase the micro-purchase, the simplified 
acquisition, and the rest program for commercial item thresholds for procurements in 
support of Hurricane Katrina efforts.   
 
 
The applicant further argued that in addition to having established the existence 
of  a  declared  national  emergency  with  respect  to  Hurricane  Katrina,  he  also  met  the 
other eligibility requirement for entitlement to full BAH.  In this regard, he stated that 
he was not authorized transportation of household goods, that he could not remain in 
his California home, and that he paid rent for the entire period that he was a responder 
in Louisiana.   
 

VIEWS OF THE COAST GUARD 

 
 
On  June  26,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  The JAG stated that the applicant had not met his burden of production and 
persuasion in overcoming the presumption of regularity afforded Coast Guard officials.  
The JAG stated that the applicant's call to active duty was in response to a voluntary 
solicitation for reservists.    
 
 
The JAG stated that for the applicant to be entitled to BAH he had to meet the 
requirements of the Pay Manual, which allowed the payment of BAH to a reservist who 
is ordered to active duty for less than 140 days, if the member's orders to active duty 
were in support of a national contingency.  In this regard, the JAG stated the following: 
 

The Applicant has not provided nor has the Coast Guard been able to find 
evidence that the Secretary of Defense designated a contingency operation 
for  purposes  of  BAH  or  that  reservists  were  involuntarily  recalled 
pursuant to one of the triggering authorities . . . The applicant is incorrect 

                                                 
4   Further in the Presidential Proclamation, it reads "[The] President of the United States of America, do 
by this proclamation suspend as to all contracts entered into on or after the date of the proclamation and 
until otherwise provided, the provisions of subchapter IV of chapter 31 of title 40, United State Code, 40 
U.S.C.  3141-3148,  and  the  provisions  of  all  other  acts  providing  for  the  payment  of  wages,  which 
provisions are dependent upon determinations by the Secretary of Labor under section 3142 of title 40, 
United States Code, as they apply to contracts to be performed in the following jurisdictions:  [Counties 
affected in Alabama, Mississippi, and Louisiana]." 

in asserting that a declaration of contingency for the purpose of procuring 
goods  and  services  in  support  of  hurricane  relief  triggers  the  BAH 
entitlement under the Coast Guard Pay Manual . . . Therefore, there is no 
entitlement to payment of full BAH for the period of service in question.  
If this operation is subsequently declared a contingency by the Secretary 
of  Defense  for  purposes  of  BAH,  the  Coast  Guard  will  be  authorized  to 
pay  the  BAH  rate  and  other  applicable  entitlements  effected  under  the 
contingency order.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On August 15, 2006, the Board received the applicant's reply to the views of the 
Coast  Guard.      He  disagreed  with  the  advisory  opinion  and  argued  that  he  has 
established that the President declared a national emergency under which he served on 
active  duty,  and  therefore,  he  is  entitled  to  full  BAH.    In  this  regard,  he  offered  the 
President's  message  notifying  Congress  "of  his  declaration  of  a  national  emergency 
within  the  limited  geographic  area  of  the  states  of  Alabama,  Florida,  Louisiana,  and 
Mississippi in response to Hurricane Katrina, pursuant to 50 U.S.C. 1621(a)." 5 
 

 

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 section 1552 of 

title 10 of the United States Code.   The application was timely. 
 
 
2.   The applicant volunteered for active duty in response to a solicitation from 
the Commandant for personnel to serve on active duty in support of Hurricane Katrina 
relief  efforts.    Subsequently,  he  was  issued  orders  to  and  served  on  active  duty  from 
September 6, 2005, through October 19, 2005, for which he received pay and allowances 
that included BAH-II. He is requesting that the Board finds that he was entitled to BAH 
for  this  period  of  active  duty  because  it  was  in  support  of  a  contingency  operation, 
which was the Hurricane Katrina relief effort. 
 
 
3.  Since the applicant's orders to active duty were for a period less than 140 days, 
he would only be entitled to BAH if he were called or ordered to active duty in support 
of a contingency operation and was unable to continue to occupy his primary residence.  
See Chapter 12.F.1. of the Coast Guard Pay Manual. 

                                                 
5    Section  1621  of  title  50  of  the  United  States  Code  gives  the  President  to  power  to  declare  national 
emergencies.   

4.  Figure  3-8,  Note  3  of  the  Coast  Guard  Pay  Manual  defines  a  contingency 

 
 
operation as a military operation that is 
 

a.  [d]esignated  by  the  Secretary  of  Defense  as  an  operation  in  which 
members  of  the  armed  forces  are  or  may  become  involved  in  military 
actions, operations, or hostilities against an enemy of the United States or 
against an opposing military force; or 
 
b.    that  results  in  the  call  or  order  to,  or  retention  on,  active  duty  of 
members of the Uniformed Services under 10 USC [§§ 12301, 12302, 12304, 
12305  &  688]6,  or  any  other  provision  of  law  during  a  war  or  during  a 
national emergency declared by the President or Congress.   

   
 
5. The applicant has failed to prove that he was called to active duty in support 
of a contingency operation designated by the Secretary of Defense.  There is no evidence 
in the record that the Secretary of Defense designated Hurricane Katrina relief efforts as 
a contingency operation that involved military actions, operations, or hostilities against 
an  enemy  of  the  United  States.    The  Under  Secretary  of  Defense  did  authorize 
"Increased Thresholds for Procurements in Support of Hurricane Katrina Relief Efforts" 
under the special emergency procurement authorities in 41 U.S.C. § 428a.   However, 
the  purpose  of  recognizing  Hurricane  Katrina  as  an  emergency  was  to  have  the 
authority necessary to relax the federal rules with respect to procurements. As such, the 
recognition  by  the  Under  Secretary  does  not  satisfy  the  definition  of  a  contingency 
operation, as defined in Figure 3-8, Note 3., paragraph a. of the Pay Manual, because it 
did not designate a contingency operation against an enemy of the United States.  
 
 
6.  Nor  has  the  applicant  proved  that  the  President  or  Congress  declared  a 
national  emergency  that  resulted  in  a  call  or  order  to  active  duty  of  the  uniformed 
services under any provision of law.  While the President's proclamation "To Suspend 
Subchapter  IV  of  Chapter  31  of  Title  40,  United  States  Code,  Within  in  a  Limited 
Geographic Area in Response to the National Emergency caused by Hurricane Katrina" 
is proof that he declared a national emergency, it did not contain the essential element 
of involuntarily ordering or calling to, or retaining uniformed personnel on active duty.  
In this regard, the Presidential Proclamation stated that "[the President] finds that the 
conditions  caused  by  Hurricane  Katrina  constitute  a  'national  emergency'  within  the 
meaning of section 3147 of title 40, United States Code," which gave the President the 

                                                 
6      These  statutes  allow  for  the  involuntary  recall  of  Reservists  in  the  event  of  a  national  emergency, 
except that 10 U.S.C. § 1205 allows for the suspension of certain laws relating to promotion, retirement, 
and  separation  of  any  member  in  the  armed  forces  if  the  President  determines  it  is  essential  to  the 
National Security of the United States. 

authority to suspend the provisions of 40 USC §§ 3141 et. seq. (that required wage rate 
requirements in federal contracts).    
 
7.  Therefore, the proclamation by the President was for the limited purpose of 
 
making the contracting process easier and faster for getting aid to the people and for 
rebuilding the affected Gulf Coast areas.  Paragraph b. of Figure 3-8, Note 3. of the Pay 
Manual states in relevant part that a contingency operation is a military operation that 
results in the call or order to, or retention on, active duty of members of the Uniformed Services 
under 10 USC [§§ 1209, 12302, 12304, 12305 & 688], or any other provision of law during a 
national  emergency  declared  by  the  President  or  Congress. 
  The  President's 
Proclamation dealing with the suspension of the wage rate requirements because of the 
national  emergency  caused  by  Hurricane  Katrina  mentioned  nothing  about  calling  or 
ordering  members  of  the  uniformed  service  to  active  duty  in  support  of  the  relief 
effort.7    
 
 
8.    Accordingly,  the  applicant  has  failed  to  prove  that  the  Coast  Guard 
committed  an  error  or  injustice  by  not  paying  him  BAH  for  the  period  he  served  on 
active duty in support of Hurricane Katrina Relief efforts.    
 

                                                 
7   Compare the Declaration of National Emergency by Reason of Terrorist Attacks of September 14, 2001.  
In this Declaration, the President made it clear that he intended to utilize 10 USC § § 12006 & 12302 and 
14 USC 331, 359, & 367, all of which allows for recalling reservists or retirees to active duty or detaining 
those already on active duty.   

 

ORDER 

 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his 

military record is denied. 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Harold C. Davis, M.D. 

 

 

 

 
 James E. McLeod 

 

 

 
 Dorothy J. Ulmer