DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-102 
 
xxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

 

 
 

 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case after receiving the applicant’s 
completed  application  on  March  9,  2009,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 4, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, who retired as a first class yeoman (YN1/E-6) on January 1, 2009, asked 
the Board to correct his military record to show that he was entitled to his Basic Allowance for 
Housing (BAH) at the “with dependents” rate (BAH-with) from December 2005 to December 
2006 and also to order the Coast Guard to reimburse him for his family court expenses and emo-
tional pain and suffering.   
 
 
The applicant alleged that  BAH regulations state that two active duty  members cannot 
carry  the  same  dependents  for  BAH  purposes.    He  alleged  that  when  two  married  members 
divorce, the member with custody of the children receives BAH-with on behalf of the children.  
However,  he  alleged,  a  non-custodial  parent  paying  child  support  may  receive  BAH-with  on 
behalf of the children if the custodial parent signs a notarized agreement to that effect.  He also 
alleged that when a custodial parent obtains a new dependent—by remarrying, for example—the 
custodial  parent  may  receive  BAH-with  based  on  her  new  dependent  while  the  non-custodial 
parent receives BAH-with based on the prior dependents. 
 
 
The applicant alleged that he applied for BAH-with pursuant to these regulations after his 
ex-wife, who had custody of their two children, remarried in November 2005.  (The applicant’s 
record shows that they married in June 2002 and were still married in November 2004 but does 
not show the date of divorce.)  His ex-wife agreed to his request as long as it would not nega-
tively affect her own receipt of BAH-with, and she inquired about the matter through her chain 

of command.  However, her command delayed answering her inquiry because they knew that a 
new policy was being issued, which might have affected her entitlements.  When the new policy 
was issued, it did not change the rule that made him eligible for BAH-with on behalf of his chil-
dren if his wife signed a notarized letter.  However, instead of paying him BAH-with in accor-
dance with the regulations, the command and the approving authority at the Pay and Personnel 
Center (PPC), Ms. B, got into a debate about whether the regulation was fair and right.  He was 
told that applying to receive BAH-with as a non-custodial parent while his ex-wife had custody 
of  his  children  and  was  paid  BAH-with  for  her  new  dependent  (a  new  husband)  constituted 
wrongful “double dipping.”   
 
 
The applicant alleged Ms. B understood the regulation and agreed with his interpretation 
on two occasions.  However, ultimately she denied his claim for BAH-with for no authorized 
reason.  In support of his allegations, the applicant submitted copies of three emails he received 
from Ms. B.  The first email is dated May 25, 2005, at which time the applicant was divorced 
and his ex-wife had custody of their two children and had not yet remarried.  Ms. B wrote the 
following to the applicant: 
 

I agree – if you have a formal declination from your ex-spouse that says that you can carry the 
children  as  legal  dependents.    Then  you  are  eligible  for  BAH/DIFF  (unless  the  children  are  in 
Government quarters).  And she can get the  with rate  for her civilian  husband (unless  she is in 
Government family housing!). 

 
 
However, three hours later, the applicant received another email from Ms. B, who had in 
the interim spoken to her own supervisor at the PPC.  This supervisor, the applicant stated, was 
also his ex-wife’s “administrative chief,” YNCS D, and he did not want the applicant to receive 
BAH-with.  Ms. B stated the following in the third email, which was cc’ed to YNCS D: 
 
                                                 
1 BAH differential (BAH-diff) is a BAH based on a member’s payment of child support.  Coast Guard Pay Manual, 
sec. 3-C-2.c. 

As I understand your situation, you and your wife are divorced & she has physical custody of your 
children.  She is carrying the children for BAH purposes and as her legal dependents.  Unfortu-
nately, if you do not have any other dependents than the two children from your former marriage, 
you are not eligible for BAH/DIFF.[1]  Please refer to Chapter 3, page 3-48, section F(b)4 (exam-
ple 1) [of the Pay Manual]. 
 
(a)  Because you were married to another member, and she is carrying the children of the mar-
riage,  you  cannot  carry  them  as  dependents  for  BAH/Diff  purposes.    Because  they  are  already 
being  carried  by  your  ex-wife  as  dependents  for  BAH  purposes.   Two  people  cannot  carry  the 
same children for pay purposes.  Sorry, I know that seems unfair, but that is the way the Pay Man-
ual, Chapter 3 reads. 
 
(b)  If your ex-wife would formally decline to carry the children for BAH, then you would be able 
to carry them.  But, the manual says that in order for you to carry your children for BAH, you 
would need a letter from your ex-wife telling your command that you can carry them. 

 
 
The second email is dated February 22, 2006, by which time the applicant’s ex-wife had 
remarried and moved out of Government housing.  Ms. B stated the following in regards to new 
BAH-diff rules: 
 

I’m terribly sorry, but I have found out that the Pay Manual still has precedence in the rules of 
Member to Member.  (1) You still have to have physical custody of your children before you can 
carry  them  for  pay  purposes.    (2)  I  know  the ALCOAST  is  silent  on  this,  but  the  Pay  Manual 
clearly states that “each member is required to have physical custody of the child(ren) in order to 
be paid BAH at the with dependent rate.” 
 
I’m sorry if I have confused you about this issue, but I was only going by the ALCOAST.  I was 
uncomfortable about this so I have checked with Policy and Procedure @ Headquarters and the 
above issue still stands. 

 
 
The applicant stated that he agreed that the Pay Manual is controlling but argued that an 
ALCOAST modifying the policy in the Pay Manual supersedes those provisions in the Pay Man-
ual.  The applicant stated that the ALCOAST did not abolish the policy in the Pay Manual and 
instead only reduced the amount to which he was entitled.  He stated that because the ALCOAST 
is  silent  about  the  regulation  in  the  Pay  Manual  under  which  he  is  entitled  to  BAH-with,  the 
ALCOAST did not effect that provision. 
 
 
The  applicant  argued  that  the  grounds  for  denial  of  BAH-with  stated  in  Ms.  B’s  third 
email are irrational because if a non-custodial parent can never receive BAH-with, there is no 
reason to have a policy in the Pay Manual about how a non-custodial parent can be entitled to 
BAH-with because if a non-custodial parent has custody, that makes the member the custodial 
parent. 
  
The applicant alleged that the rules regarding BAH-with were not just misinterpreted but 
 
misrepresented and distorted in order to deny him this entitlement by erroneously telling his ex-
wife that she would lose something if she signed a notarized letter for him.  The denial of BAH-
with, he stated, detrimentally affected him and his children and created distrust between him and 
his ex-wife.  Because his ex-wife was erroneously convinced by YNCS D that the applicant was 
trying to get BAH-with at her expense, she  
 

subsequently refused to work with me on even the simple matters of visitation between me and my 
children.    I  ended  up  paying  approximately  $1500/month  for  child  support  and  childcare  and 
approximately $600 [per] month in expenses associated with just visiting my 2 and 3 year old chil-
dren once per month.  Within 2½ years, I ended up having to file [for] bankruptcy.  Immediately 
after the decision by [Ms. B], my ex-wife and I ended up in court and it cost us approximately 
$15,000.  In the proceeding, my ex-wife even referenced all of the emails regarding the entitle-
ment in an attempt to demonstrate to the court that I was seeking an unjust entitlement. 
 
The  Coast  Guard  is  specifically  responsible  for  the  1  year  period  that  I  did  not  receive  a  full 
entitlement; VERY indirectly responsible for the $15,000 that it cost us in court (the money could 
have  greatly  alleviated  visitation  and  support  expenses);  and  very  indirectly  responsible  for  the 
pain and hardships which ensued afterward, leading to my bankruptcy filing.  The ultimate final 
action of denying my just pursuit of an entitlement was unjustified, had dire consequences for me 
and my children, and the Coast Guard should be held accountable.  Rules and regulations were 
superseded.  My household suffered only due to various officials ensuring that I did not receive the 
entitlement that only their belief system felt I shouldn’t be able to receive.  

 

VIEWS OF THE COAST GUARD 

 
 
On July 15, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board either dismiss the case for failure to exhaust his 
administrative remedies or deny it for lack of merit.  In so doing, he adopted the findings and 
analysis provided in a memorandum prepared by the Pay and Personnel Center (PPC).  The PPC 
addressed the applicant’s claim for BAH-with but stated that his request for court costs and for 
compensation for pain and suffering “are beyond the scope of this memo.” 
 
 
The PPC stated that when two members divorce, the custodial parent receives BAH-with 
even if he or she receives child support from the other member, and the non-custodial member is 
only entitled to BAH-with “if otherwise qualified.”  However, “if the custodial parent agrees in a 
notarized writing, the non-custodial parent may be paid BAH ‘with’.” 
 
The PPC stated that in March 2005, a State court ordered the applicant to pay $684 in 
 
monthly child support to his ex-wife, who was the custodial parent of their two children and an 
active duty member of the Coast Guard herself.2  The child-support payments were automatically 
deducted  from  the  applicant’s  pay,  and  he  received  BAH  at  the  regular,  “without”  rate  from 
December 2005 to December 2006.3  His ex-wife continued to live in their Government housing 
until May 2, 2005, and began receiving BAH-with when she moved out of Government housing 
on May 3, 2005.  She continued to receive BAH-with until she was discharged from active duty 
on  November  30,  2006.   After  his  ex-wife  was  discharged,  the  applicant  became  eligible  for 
BAH-with because of his child-support payments, and he was paid BAH-with from December 1, 
2006, until he retired on January 1, 2009. 
 
The PPC stated that the application should be dismissed for failure to exhaust an adminis-
 
trative  remedy  because  the  applicant  never  applied  to  the  Defense  Office  of  Hearings  and 
Appeals (DOHA) pursuant to 31 U.S.C. § 3702(a)(1) and 32 C.F.R. § 282.5(b).  The PPC stated 
that under 32 C.F.R. §§ 281 and 282 and DODI 1340.21, the applicant should have submitted his 
claim to the Coast Guard and appealed any denial to the Coast Guard.  Then, the Coast Guard 
“forwards  to  DOHA’s  claims  examiners  if  the  appeal  is  denied,  and  …  DOHA  rules  on  the 
claims examiner’s decision if DOHA’s claims examiners deny the appeal.” 
 
 
Regarding this potential avenue of administrative remedy, the PPC stated that under Fig-
ure 3-16 of the Pay Manual, “commanding officers [COs] make standard dependency determina-
tions at the field level through their Coast Guard Servicing Personnel Officer (SPOs).”  If the CO 
finds  a  claim  doubtful  or  unique,  the  member’s  request  is  forwarded  to  the  PPC  for  a  legal 
review  and  determination.   The  PPC  stated  that under  Chapter  5.B.  of  the  Personnel  and  Pay 
Procedures Manual (PPPM), “[t]he standard package of forms and documents sent to PPC by the 
commanding officer’s SPO for review includes: (1) Form PPC2020 (request to add dependent), 
(2) Form PPC 2020a (support statement), (3) Form 4170a (dependency data form), and (4) any 
additional supporting documents relevant to the request.” 
 
                                                 
2 The court order shows that the applicant paid $342 semi-monthly, or $684 per month, in child support for his two 
children. 
3 The Coast Guard submitted copies of the applicant’s Leave and Earnings Statements showing these payments. 

 
The  PPC  stated  that  there  is  no  evidence  that  the  applicant  ever  filed  the  appropriate 
forms with his SPO to receive BAH-with, but even if he did, “neither he nor the SPO filed any 
required forms or documents with PPC.”  The PPC stated that the PPC attorney—not Ms. B, a 
paralegal specialist at PPC—had delegated authority to render final decisions on BAH determi-
nations.  Therefore, the applicant did not exhaust his administrative remedies before applying to 
the BCMR. 
 
Regarding the merits of his request, the PPC stated that under Smith v. United States, 47 
 
Ct. Cl. 313 (1912), BAH cannot be paid unless authorized by a statute or regulation.  “In general, 
when a member is married to another member and there are no children, each is entitled to BAH 
‘without’,” under 37 U.S.C. § 421 and the Joint Federal Travel Regulations (JFTR), Table U10C-
1 (2006).4  “A child born of a marriage to two members entitles only one member to BAH ‘with’ 
and the members may elect which receives the increased housing allowance for that child [as 
long as they do not live in Government quarters]. … The other member receives BAH ‘without’ 
under JFTR U10002-B and page 3-47 of the Pay Manual.” 
 
 
other pays child support, 37 U.S.C. § 403(m)(5) states the following: 
 

The  PPC  stated  that  upon  divorce,  if  one  member  is  the  sole  custodial  parent  and  the 

In the case of two members, who have one or more common dependents … who are not married to 
each other, and one of  whom pays child support to the other, the amount of [BAH] … shall be 
reduced … [and] the total amount of [BAH] paid to the two members may not exceed the sum of 
the amounts of the allowance to which each member would be otherwise entitled under this sec-
tion. 

 
 
The PPC stated that under JFTR U10206(A)(1) and section 3-F-6-b-1 of the Pay Manual, 
“unless there is a notarized agreement between the two members, the custodial parent receives 
BAH ‘with’ and the other BAH ‘without.’ …  Thus, two divorced members can never receive 
more than one of them at the BAH ‘with’ rate and the other BAH ‘without’.  And upon separa-
tion or divorce, unless the members agree otherwise, the custodial parent receive BAH ‘with’.” 
 
 
The PPC stated that from May 2005, when she left Government housing, until her dis-
charge at the end of November 2006, the applicant’s ex-wife was the custodial parent and she 
received  the  BAH-with  rate.    Thus,  “the  law  prohibited  [the  applicant]  from  receiving  BAH 
‘with’ during that time.”  After she was discharged, the applicant received BAH-with until he 
retired. 
 
 
The  PPC  stated  that  the  applicant’s  argument  that  upon  his  ex-wife’s  remarriage,  they 
could both receive BAH-with—she, based upon her new dependent husband, and he, based upon 
their two children—is erroneous.  The PPC stated that the law upon which the applicant relies is 
applicable only for divorces that occurred before July 1, 1992.  That regulation, under Section 3-
F-6.a.(7) of the Pay Manual, states the following: 
 
                                                 
4  The  Board  notes  that  the  PPC  cited  the  JFTR  rules  several  times  throughout  its  memorandum  for  this  case.  
However, the BAH rules were not entered in the JFTR until FY2007.  The JFTR paragraphs cited in the advisory 
opinion lead one  to the 2005/2006 JFTR rules for Overseas Housing  Allowances (OHA),  which are inapplicable 
because neither the applicant nor his wife were assigned overseas in 2006. 

When  a  non-custodial  member  pays  child  support  to  the  custodial  parent  who  also  has  another 
dependent who makes that member eligible for BAH, there is a presumption that the custodial par-
ent’s entitlement is based on the dependent(s) other than the children of the marriage. 

 
 
The PPC alleged that because the applicant was divorced after July 1, 1992, his entitle-
ment is not affected by this provision,5 and the Pay Manual “otherwise prohibits two [previously 
married] members receiving BAH ‘with’.”  The PPC stated that Section 3-F-6.b. of the Pay Man-
ual, which applies to divorces occurring after July 1, 1992, does not include the same depend-
ency presumption.  Instead, it states the following:   
 

(1)  Unless the members agree to the contrary, the custodial parent is entitled to BAH on behalf of 
the child(ren) regardless of the amount of child support received by the member.  In addition to the 
court order, a separate notarized agreement between the members must be provided in order for 
the non-custodial member to receive BAH on behalf of the child(ren). … 
 
(2)  When the members each have legal and physical custody of one or more of the children of the 
marriage,  they  are  each  entitled  to  BAH  on  behalf  of  the  children  in  their  individual  custody, 
regardless of child support payments from one member to the other. 

 
 
The PPC stated that neither of these two conditions applied to the applicant during the 
period from December 1, 2005, through November 30, 2006.  The PPC alleged that although the 
applicant claims that his ex-wife agreed to provide a notarized statement and was dissuaded by 
her command, his claim is not corroborated by the record.  Nor is there any evidence that anyone 
in his ex-wife’s chain of command refused to accept a notarized statement from her.  The PPC 
also noted that the applicant failed to submit a copy of the court order outlining custody arrange-
ments. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
In response to the Coast Guard’s advisory opinion, the applicant stated that he disagreed 
with it in its entirety.    He stated that the Coast Guard “continually  highlight[s] the fact that  I 
never gained my ex-wife’s consent via a notarized agreement to claim my children for BAH pur-
poses.”  The applicant stated that his ex-wife  
 

sought confirmation that what I was seeking from her was legitimate and that it would not impact 
her  own  BAH  entitlement.    Ultimately,  that  confirmation  from  the  same  person  responsible  for 
approving the entitlement never came.  To be certain, positive confirmation came 6 months before 
I was eligible to seek the entitlement as well as nearly a year later only to be reversed within hours 
of confirmation that it was a legitimate entitlement. 

 
 
The applicant argued that he should be compensated for the expenses he incurred after 
the Coast Guard deliberately misinformed him, his ex-wife, and/or YNCS D in order to suppress 
his efforts to gain a just entitlement.  He argued that Ms. B correctly interpreted the regulations 
in her first two emails to him but recanted within three hours and “sided” with YNCS D and 
“another  individual  from  Policies  and  Procedures.   These  efforts  convinced  my  ex-wife  that  I 

                                                 
5  The  Board  notes,  however,  that  subparagraph  (4)  of  paragraph  b.  of  section  3-F-6,  which  expressly  applies  to 
members divorced after June 30, 1992, states, in toto, "When dependents are not a common class, section 3-F-6-
a.(7) applies."  

was seeking an unjust entitlement and that she would lose her own entitlement if she allowed me 
to claim my children for BAH purposes.” 
 
 
The applicant alleged that it is unfair for the Coast Guard to focus on the fact that his ex-
wife never signed a notarized statement because it was the Coast Guard who convinced her not 
to sign one.  Moreover, he argued, it was not a matter of the administrative staff simply being 
mistaken because the regulation is clear.  The applicant also alleged that the advisory opinion 
was deliberately vague about the applicable regulations and did not cite the complete regulations.  
He argued that a recent revision of the Pay Manual supports his interpretation of the regulations. 
 

The applicant alleged that if the Board reviews all applicable regulations, the Board will 
see that his ex-wife’s entitlement to BAH-with would not have been reduced if she had signed a 
notarized letter for him.  However, she received erroneous advice from the Coast Guard—Ms. B, 
YNCS D, and Headquarters personnel—and based on that erroneous advice, refused to sign a 
notarized statement for him.  Therefore, he was unjustly denied BAH-with from December 2005 
to December 2006. 
 
 
The applicant argued that he did exhaust his administrative remedies prior to his retire-
ment.  He pursued his claim through Ms. B at the PPC and was not told of or offered any other 
potential remedy. 
 

COAST GUARD ADDENDUM TO THE ADVISORY OPINION 

 
 
Upon reviewing the case, the BCMR staff queried the JAG about the applicability of the 
JFTR rules cited in the advisory opinion, since the BAH rules were not then part of the JFTR, 
and about the applicant’s entitlement to BAH-with under Section 3-F-6.a.(7) of the Pay Manual 
because, although that section appears under the rules for members divorced on or before June 
30, 1992, section 3-F-6.b.(4) of the rules for those divorced after June 30, 1992, states in toto, 
“When dependents are not a common class, section 3-F-6.a.(7) applies.”   
 

The PPC responded by submitting an addendum to the advisory opinion.  In the adden-
dum, the PPC stated that section 3-F-6.a.(7) did apply to the applicant and his ex-wife after she 
remarried in November 2005 because her new husband and her children from her marriage to the 
applicant were not “of a common class,” although the term “common class” is not defined in the 
regulations.  Therefore, the ex-wife’s entitlement to BAH-with was presumptively based on her 
new husband rather than on her children with the applicant and the applicant’s entitlement would 
be assessed individually based upon his payment of child support.  The PPC stated that had the 
applicant provided the Coast Guard with the necessary documentation in 2005, he should have 
received  BAH-with  beginning  from  the  date  of  his  ex-wife’s  marriage.    Instead,  he  did  not 
receive BAH-with until December 1, 2006, the first day his ex-wife was no longer serving on 
active duty.  The PPC stated that the applicant “is now entitled to BAH-with dependents from the 
date of his former spouse’s remarriage to 30 Nov 06.”  The PPC stated that whether one consults 
the Pay Manual, the JFTR, or the Department of Defense Financial Management Regulations, 
the applicant was entitled to BAH-with dependents after his wife remarried.  In addition, the PPC 
stated that it had checked this conclusion with the JFTR Pay and Per Diem Committee, which 
concurred that the applicant was entitled to BAH-with dependents during the year in question.  

The  PPC  also  noted  that  the  discussion  of  the  lack  of  a  notarized  statement  in  its  original 
memorandum “is not pertinent” in light of the applicable rules. 
 
 
The PPC stated that the BCMR should, as a general rule, require applicants to exhaust 
their administrative remedies.  The PPC claimed that its personnel had not had an opportunity to 
review the applicant’s request for BAH-with and make a formal decision.  If it had had such an 
opportunity, the applicant could have sought review of any denial through Coast Guard Head-
quarters and the Office of the General Counsel, and there would be a complete administrative 
record for the Board to review.  The PPC stated that the Board should return the matter to the 
Coast Guard to review and deny the applicant’s request for family court costs and compensation 
for emotional pain and suffering. 
 

APPLICANT’S RESPONSE TO THE ADDENDUM 

 
The applicant stated that the Board should simply grant relief and not return the matter to 
 
the Coast Guard since he has already retired from active duty and the PPC had the opportunity to 
act  properly  but  failed  to  do  so.    The  applicant  alleged  that  the  PPC  could  and  should  have 
advised  him  accurately  about  his  entitlement  and  about  the  proper  paperwork  to  submit  and 
could have processed that paperwork while he was on active duty, but instead they kept blocking 
his efforts by providing false information to him and his ex-wife.  He alleged, for example, that 
Coast Guard administrative personnel told her that allowing him to claim the children as depend-
ents for BAH purposes might negatively affect her own ability to claim them for tax purposes 
even though the settlement agreement for their divorce states that his ex-wife could claim the 
children as dependents for tax purposes. 
 

The applicant alleged that he and his ex-wife “were deliberately miscounseled and mis-
guided for the purpose of preventing the pursuit of a just entitlement.”  The applicant stated that 
the Coast Guard’s bad advice harmed him, his ex-wife, and his children both financially and in 
ways “that cannot adequately be compensated.”  He noted that many other members may have 
suffered from the same bad advice.   
 
 
In support of his allegations, the applicant submitted a letter from his ex-wife who wrote 
that in 2005 she was still on active duty and was living with her two young sons in Virginia while 
their father, the applicant, lived and worked in New York.  When she remarried in November 
2005, the applicant asked her to allow him to declare the boys his dependents for BAH purposes.  
However,  she  refused  because  she  believed  that  such  a  declaration  might  affect  her  ability  to 
claim the children as her dependents for tax purposes and because she was also told by her com-
mand’s  administrative  officer  that  only  the  parent  with  whom  the  children  were  living  could 
claim them for BAH purposes.  “On the advice of my command and wishing to avoid any nega-
tive interactions with the IRS, I chose to keep both my new husband and children as dependents 
as far as the United States Coast Guard was concerned.” 
 

APPLICABLE LAW 

 
37 U.S.C. § 403 (2005). 
 
 
members who pay child support: 
 

Section 403(m) of Title 37 of the United States Code states the following with regard to 

(2) A member of a uniformed service assigned to quarters of the United States or a housing facility 
under the jurisdiction of a uniformed service who is not otherwise authorized a basic allowance for 
housing  and  who  pays  child  support  is  entitled  to  the  basic  allowance  for  housing  differential, 
except for months for which the amount payable for the child support is less than the rate of the 
differential. Payment of a basic allowance for housing differential does not affect any entitlement 
of the member to a partial allowance for quarters under subsection (n). 
 
(3) The basic allowance for housing differential to which a member is entitled under paragraph (2) 
is the amount equal to the difference between-- 
 
     (A) the rate of the basic allowance for quarters (with dependents) for the member's pay grade, 
as such rate was in effect on December 31, 1997, under this section (as in effect on that date); and 
 
     (B)  the  rate  of  the  basic  allowance  for  quarters  (without  dependents)  for  the  member's  pay 
grade, as such rate was in effect on December 31, 1997, under this section (as in effect on that 
date). 

(5)  In the case of two members, who have one or more common dependents (and no others), who 
are not married to each other, and one of whom pays child support to the other, the amount of the 
basic  allowance  for  housing  paid  to  each  member  under  this  section  shall  be  reduced  in  accor-
dance  with  regulations  prescribed  by  the  Secretary  of  Defense.  The  total  amount  of  the  basic 
allowances for housing paid to the two members may not exceed the sum of the amounts of the 
allowance to which each member would be otherwise entitled under this section. 
 

●   ●   ● 

Coast Guard Pay Manual 
 
 
Section 3-C-3.a. of the Pay Manual in effect in 2005 and 2006 (COMDTINST 7220.29A, 
Change 4, issued on June 2, 2003) states that “BAH is payable to members on active duty and 
will vary according to the grade in which serving or appointed for basic pay purposes, depend-
ency status, and unless approved otherwise for a designated location by Commandant (G-WPM-
2), the permanent duty station (PDS) assigned (except as otherwise provided in section 3-F-18.)” 
 
Section 3-C-3.d. states that “BAH is not payable to members who are assigned to quarters 
 
of the United States appropriate to the grade, rank, or rating of the member and adequate for the 
member and dependents, if the member is with dependents.” 
 
Section 3-C-2.c. states that “BAH-DIFF is the housing allowance amount for a member 
 
who is authorized a basic allowance for housing solely by reason of the member’s payment of 
child support.  A member is not entitled to BAH-DIFF if the monthly rate of that child support is 
less than the BAH-DIFF amount for their respective pay grade.” 
 

Section  3-F-6  states  the  following  with  regarding  to  entitlement  to  BAH  on  behalf  of 

dependents (BAH-with) when two active duty members with children get divorced: 

 

 

6.  Support of Dependent—Both Parents are Members. 
 
a. Divorce or Legal Separation Effective or Amended Before 1 Jul 1992. In addition to the provi-
sions of section 3-F-5, the following subparagraphs apply when divorced or legally separated par-
ents  are  both  members  and  the  divorce  or  separation  occurred  prior  to  1  Jul  1992.  These  rules 
apply only when neither member is assigned to family-type government quarters, unless otherwise 
specified. 
 
(1)  The  non-custodial  parent  is  entitled  to  BAH  on  behalf  of  the  child(ren),  provided  the  non-
custodial parent pays adequate child support. 
 
(2) If the non-custodial member does not pay the required amount of child support, the custodial 
member is entitled to BAH on behalf of the children. 
 
(3) The custodial member is entitled to BAH on behalf of the child(ren) if the non-custodial mem-
ber declines to claim the child(ren). … 
 
(4) Only one parent is entitled to BAH on behalf of children of the marriage when all of the chil-
dren reside in one household; … 
 
(5) When the child(ren) of the marriage are in the custody of a third party, … 
 
(6) When each member has legal and physical custody of one or more of the children of the mar-
riage, … 
 
(7) When a non-custodial member pays child support to the custodial parent who also has another 
dependent who makes that member eligible for BAH, there is a presumption that the custodial par-
ent’s entitlement is based on the dependent(s) other than the child(ren) of the marriage. The BAH 
entitlement for the custodial and non-custodial parents is determined individually. 

b.  Divorce or Legal Separation Effective or Amended After 30 Jun 1992. In addition to the provi-
sions of section 3-F-5, the following subparagraphs apply when the divorced or separated parents 
are both members and the divorce or separation occurred, or the decree or agreement was amended 
after 30 June 1992. These rules apply only when neither member is assigned to family-type gov-
ernment quarters, unless otherwise specified. 

 
(1) Unless the members agree to the contrary, the custodial parent is entitled to BAH on 
behalf  of  the  child(ren)  regardless  of  the  amount  of  child  support  received  by  that  member.  In 
addition to the court order, a separate notarized agreement between the members must be provided 
in order for the non-custodial member to receive BAH on behalf of the child(ren). 

 
(2) When the members each have legal and physical custody of one or more of the chil-
dren of the marriage, they are each entitled to BAH on behalf of the children in their individual 
custody, regardless of child support payments from one member to the other. 

 
(3) When the child(ren) are in the custody of a third party, the rule in 3-F-6.a.(5) applies. 
 
(4) When the dependents are not a common class, section 3-F-6.a.(7) applies. 

 
 
ALCOAST 625/05, issued on December 15, 2005, amended some of the BAH regula-
tions in the Pay Manual as of December 31, 2005.  Paragraphs 3.C. and 4. of this ALCOAST 
state that 37 U.S.C. § 403 
 

currently  limits  BAH-diff  entitlement  to  single  members  who  pay  child  support  and  who  are 
authorized to reside in private sector quarters or are assigned to single-type Government owned or 
leased quarters.  The BAH Transitional Authority, established in 1997, authorized the payment of 
BAH-diff and BAH-w/o … to members authorized to receive these allowances.  The BAH Tran-
sitional Authority is scheduled to expire on 1 JAN 2006.  The effective date for this policy is 31 
Dec 2005 and the payment of BAH-diff will be limited solely to members who pay child support 
who are assigned to single-type Government owned or leased quarters. 
 
4.  Policy.  Effective 31 DEC 2005 the following housing allowance policy will apply concerning 
the authorization and payment of BAH, OHA, and BAH-diff to single members and married mili-
tary active duty service couples.  … 
 
     A.  Single members who pay child support and who are receiving BAH-w/o and BAH-diff will 
no longer receive these allowances, but will receive BAH-with dependents based on payment of 
child support.  These members will see a change in their monthly housing allowance amount. 

     E.  Married members who have a child(ren) from the marriage, and the marriage terminates (in 
divorce, annulment, etc.) resulting in the member having a child support payment are required to 
submit  supporting  documentation  to  their  servicing  personnel  office  (SPO)  to  verify  that  their 
child support payment is equal to or greater than the BAH-diff amount for their respective pay 
grade.  The member will not be entitled to [BAH-with] based on payment of child support until 
this documentation is submitted, and the  member  will only be entitled to [BAH-without] in the 
interim. 

●   ●   ● 

 

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 Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552.  The 

application was timely.6  

1. 

 
2. 

The  PPC  argued  that  the  Board  should  return  this  matter  to  the  Coast  Guard 
because the applicant did not exhaust his administrative remedies through the Coast Guard and 
the Defense Office of Hearings and Appeals (DOHA).  The PPC stated that the applicant should 
have submitted his claim to the Coast Guard and appealed any denial.  Then, the Coast Guard 
would “forward[] to DOHA’s claims examiners if the appeal is denied, and … DOHA rules on 
the  claims  examiner’s  decision  if  DOHA’s  claims  examiners  deny  the  appeal.”    However,  the 
record shows that the applicant attempted to claim his entitlement through PPC personnel and 
was not only advised by PPC personnel that he was not entitled to BAH on behalf of his children 
after his wife remarried but was also not offered any administrative remedies by which he could 
dispute that erroneous determination.  Nor did those PPC personnel forward any query to DOHA 
on his behalf.  Under 33 C.F.R. § 52.13, members must exhaust effective administrative reme-
dies, but a remedy that is not timely offered is not effective.  The regulation also specifies that 
the Board may determine what remedies are “practical, appropriate, and available to the appli-
cant.”  Because the applicant was not timely afforded his administrative remedies when his dis-
agreement with PPC personnel arose in 2005 and 2006 and because he is now retired and has 
                                                 
6 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 

already waited a long time to receive his entitlements, the Board finds that it is neither practical 
nor appropriate to require him to exhaust the administrative remedies now offered by the PPC as 
it might only delay the matter further. 

 
The applicant and his then active duty member wife were divorced after June 30, 
1992.    Therefore,  section  3-F-6.b.  of  the  Pay  Manual  applies  to  the  applicant’s  BAH  entitle-
ments.  Paragraph (4) of that section states, “When the dependents are not a common class, sec-
tion 3-F-6.a.(7) applies.”  In the addendum to the advisory opinion, the Coast Guard has stated 
that the new husband of the applicant’s ex-wife and the children of the applicant’s marriage are 
not of a “common class.”  The term “common class” is not defined in the Pay Manual or the 
JFTR  but  appears  to  depend  upon  whether  the  dependents  are  related  other  than  by  marriage 
and/or whether they are living in the same household.7  The Board agrees with the Coast Guard 
that the new husband and the children of the  applicant’s marriage should not be considered  a 
“common class” of dependents even though they live in the same household because they are not 
related to each other apart from the “step” relationship through the ex-wife.  Therefore, under 
section 3-F-6.b.(4) of the Pay Manual, section 3-F-6.a.(7) applied to the applicant’s BAH entitle-
ment  from  the  date  of  the  ex-wife’s  marriage  in  November  2005  (which  is  not  stated  in  the 
record before the Board) until her separation from active duty on November 30, 2006. 
 

Section 3-F-6.a.(7) of the Pay Manual states that “[w]hen a non-custodial member 
[such  as  the  applicant]  pays  child  support  to  the  custodial  parent  [his  ex-wife]  who  also  has 
another dependent who makes that member eligible for BAH [her new husband], there is a pre-
sumption  that  the  custodial  parent’s  entitlement  is  based  on  the  dependent(s)  other  than  the 
child(ren) of the marriage.  The BAH entitlement for the custodial and non-custodial parents is 
determined individually.”  Therefore, after her remarriage, the applicant’s ex-wife presumptively 
received BAH-with on behalf of her new husband, and the applicant’s entitlement to BAH for his 
child-support payments should have been determined individually—i.e, without regard to his ex-
wife’s receipt of BAH-with for her new husband.   

4. 

 
3. 

 
5. 

6. 

Because  of  the  presumption  under  section  3-F-6.a.(7)  of  the  Pay  Manual,  the 
Board agrees with the PPC addendum to the advisory opinion that the fact that the applicant’s 
ex-wife was unwilling, because of the erroneous information she received from her command, to 
give  the  applicant  a  notarized  letter  allowing  him  to  claim  the  children  as  his  dependents  for 
BAH purposes was actually irrelevant.  His entitlement to BAH for child support did not depend 
on his ex-wife’s agreement because her own receipt of BAH-with was presumptively based on 
the dependency of her new husband. 
 
 
The Board must therefore determine whether the applicant was entitled to BAH-
with or BAH-diff individually without taking into consideration his ex-wife’s receipt of BAH-
with.  In the addendum to the advisory opinion, the PPC stated that the applicant “is now entitled 
to BAH-with dependents from the date of his former spouse’s remarriage to 30 Nov 06.”  The 
PPC also stated that this conclusion has been confirmed in consultation with the JFTR Pay and 
                                                 
7 See, e.g., Watford, B270432, 1996 WL 345581 (Comp. Gen.) (finding that a member’s minor brother and minor 
children who are all living with the member are dependents of the same class); but see JFTR U10204 (2009) (stating 
that if two members who both have children from previous relationships marry and are stationed in the same area, 
“all children are one class of dependents,” even though they are not genetically related). 

 
7. 

9. 

Per Diem Committee.  According to the Coast Guard’s advisory opinion and the applicant’s pay 
records, from November 2005 through the end of November 2006, the applicant received BAH-
without, presumably because he was living in private quarters.8  However, under Section 3-C-
2.c. of the Pay Manual and paragraph 3.C. of ALCOAST 625/05, from the date of his ex-wife’s 
remarriage in November 2005 until December 30, 2005, he was entitled to both BAH-without 
and BAH-diff if his child-support payments equaled or exceeded the amount of BAH-diff author-
ized for his pay grade.  And paragraphs 4.A. and E. of ALCOAST 625/05 show that effective as 
of  December  31,  2005,  the  applicant  was  entitled  to  BAH-with  if  his  child-support  payments 
equaled or exceeded the amount of BAH-diff authorized for his pay grade. 

8. 

According to the Department of Defense, the monthly BAH-diff for an enlisted 
member in pay grade E-6 in fiscal year 2006 was $243.00 and the monthly BAH-diff in fiscal 
year 2007 was $248.40 (not including locality adjustments).9  Therefore, since the applicant had 
been ordered to pay $684 per month in child support for his two children and the Coast Guard 
was deducting this amount from his pay, it is clear that the amount of his monthly child support 
exceeded the amount of BAH-diff authorized for his pay grade and so he was entitled to BAH 
for  his  child-support  payments  from  the  date  of  his  ex-wife’s  remarriage  until  her  separation 
from the Coast Guard. 
 
 
The Board notes that in her letter to the Board, the applicant’s ex-wife expressed 
concern about the effect of the applicant’s entitlement to claim BAH on behalf of their children 
on her entitlement to claim the children as dependents for tax purposes.  The Board can find no 
legal connection between the two matters.  The  Internal Revenue Service  requires a custodial 
parent to complete a form 8332 in order to allow the non-custodial parent to claim a child as a 
dependent,  or  a  notarized  letter  with  the  same  information,  and  the  required  information  and 
wording on the form is specifically about tax exemptions and tax years.10  
 
 
The applicant also asked the Board to order the Coast Guard to compensate him 
for his emotional pain and suffering and for family court costs that he alleged resulted from the 
erroneous  advice  the  Coast  Guard  gave  him  and  his  ex-wife.    The  applicant  and  his  ex-wife 
clearly  received  very  poor  advice  from  Coast  Guard  administrative  personnel.    However,  10 
U.S.C. § 1552(c)(1) states that the Secretary “may pay, from applicable current appropriations, a 
claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or 
for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, 
the amount is found to be due the claimant on account of his or another's service in the Army, 
Navy, Air  Force, Marine Corps, or Coast Guard, as the case may  be, or on account of his or 
another's service as a civilian employee.”  Under this statute, the applicant is entitled to the BAH 
payments due him after the Coast Guard corrects his record to show that he is entitled to them.  
However, the statute does not allow the Board to order the Coast Guard to pay the applicant’s 
family court costs or to pay him for his emotional pain and suffering even if they are directly 

                                                 
8 Coast Guard Pay Manual, sec. 3-C-3. 
9 See archived BAH rate charts at . 
10 INTERNAL REVENUE SERVICE, PUB. 501, EXEMPTIONS, STANDARD DEDUCTION, AND FILING INFORMATION (2008); 
INTERNAL REVENUE SERVICE, FORM 8332, RELEASE/REVOCATION OF RELEASE OF CLAIM TO EXEMPTION FOR CHILD 
BY CUSTODIAL PARENT (Feb. 2009). 

10. 

attributable to the bad advice he and his ex-wife received from Coast Guard administrative per-
sonnel.11 
 
 
Accordingly,  the  applicant’s  request  for  entitlement  to  BAH  as  a  result  of  his 
child-support payments from the date of his ex-wife’s remarriage to the date of her separation 
from active duty should be granted, but his request for compensation for his family court costs 
and emotional pain and suffering must be denied. 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
11 See Cook v. Sec’y of the Air Force, 850 F. Supp. 901, 903 (D.C. Ore. 1994); Moore v. Sec’y of the Army, 627 
F.Supp. 1538, 1542 (D.C. Conn. 1986); Dumas v. President of the United States, 554 F. Supp. 10, 16 (D.C. Conn. 
1982). 

ORDER 

 

The  application  of  YN1  xxxxxxxxxxxxxxxxxxxxxxx,  USCG  Retired,  for  correction  of 
his military record is granted in part.  His military record shall be corrected to show that he was 
entitled  
 

(a)  to both BAH differential (BAH-diff) and BAH at the “without dependents” 
rate  from  the  date  of  the  remarriage  of  his  ex-wife,  xxxxxxxxxxxxxxxxxxxxxxxxx,  in 
November 2005 through December 30, 2005; and  
 

(b)    to  BAH  at  the  “with  dependents”  rate  from  December  31,  2005,  through 

November 30, 2006, in accordance with ALCOAST 625/05.   
 
The Coast Guard shall pay him any amount due as a result of these corrections. 
 
All other requested relief is denied. 
 

 
 
 
 
 

 
 

 
 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
  

 

 
 Nancy L. Friedman 

 

 

 
 Patrick B. Kernan 

 

 

   
 George A. Weller