DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2009-132 
 
XXXXXXXXXXX 
XXXXXXXXXXX 
   

 

 
 

FINAL DECISION 

 
 
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 application on April 
30, 2009, upon receipt of the applicant’s completed application and subsequently prepared the 
final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  14,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  to  be  paid  basic  allowance  for  housing  (BAH)  for  the  period 
December 10, 2000 to January 2, 2001 based on his pay grade at the time, which was E-2.  The 
Board interprets the applicant’s request as one for the correction of his record to show that he 
was entitled to the payment of BAH1 with dependents (BAH/with) for the period in question.  
The applicant stated the following: 
 

I  was  told  by  the  executive  officer  onboard  the  [Coast  Guard  Cutter]  .  .  .  in 
December  2000  that  I  couldn’t  draw  BAH  because  I  was  non-rated  and  I  had 
shipboard berthing.  I was married on December 10, 2000 and was not placed in 
government quarters with my spouse until 3 January 2001.  I did not receive BAH 
dependents for that time period.  I believe I was underpaid $651.95.   

 
 
The  applicant  claimed  that  he  did  not  discover  the  alleged  error  until  March  27,  2009 
during a casual conversation with a crewmember.  He stated that using his yeoman training he 
researched the issue and realized that he was incorrectly counseled about BAH. 
                                                 
1  BAH is a monthly allowance for housing payable to members on active duty and varies according to the grade in 
which  the  member  is  serving  for  basic  pay  purposes,  the  member’s  dependency  status,  and  the  permanent  duty 
station  to  which  the  member  is  assigned.    This  allowance  is  authorized  for  members  both  “with”  and  “without” 
dependents.   Chapter 3.C.1. of the Coast Guard Pay Manual.   

 

VIEWS OF THE COAST GUARD 

 

 
 
The applicant submitted his December leave and earnings statement (LES) which shows 
that he received $7.20 in partial BAH2 for that month.  He also submitted his January 2001 LES 
which  showed  BAH  with  dependents  in  the  amount  of  $383.32,  which  was  offset  by  the 
applicant’s assignment to government quarters.  The applicant claimed that he is owed $71.66 for 
2 days in January and $580.29 for 21 days in December.   

 
 
On September 24, 2009, the Judge Advocate General (JAG) submitted the views of the 
Coast  Guard.   The  JAG  requested  that  the  Board  accept  the  comments  from  the  Commander, 
Coast Guard Pay and Personnel Center (PPC) as the advisory opinion.   
 
 
  PPC  asserted  that  the  applicant’s  claim  exceeds  the  Board’s  three-year  statute  of 
limitations as well as the six year time limit under the Barring Act.3  PPC also asserted that the 
applicant  failed  to  exhaust  his  administrative  remedies  by  applying  to  the  Defense  Office  of 
Hearings and Appeals.4   In this regard, PPC stated the following: 
 

involving  uniformed  service  members’  pay,  allowances, 

As a preliminary matter, federal regulations prohibit the Board from considering 
matters  “until  the  applicant  has  exhausted  all  effective  administrative  remedies 
afforded under existing law or regulations . . .”5  The Secretary of Defense settles 
claims 
travel, 
transportation,  payments  for  unused  accrued  leave,  retired  pay,  and  survivor 
benefits.  [Footnote  omitted.]    The  Secretary  of  Defense  delegated  uniformed 
service  member’s  pay  claims  down  to  the  Defense  Office  of  Hearings  and 
Appeals  (DOHA).  [Footnote  omitted.]  Federal  regulations  and  a  Department  of 
Defense  instruction  that  applies  to  the  Coast  Guard  outline  the  administrative 
remedies available in military pay and allowance matters:  (1) members submit a 
claim  to  the  Coast  Guard,  (2)  appeal  to  the  Coast  Guard  if  the  initial  claim  is 
denied, (3) the Coast Guard forwards to DOHA’s claims examiners if the appeal is 
denied, and (4) DOHA rules on the claims examiner’s decision if DOHA’s claims 
examiners deny the appeal.6   

 

                                                 
2   BAH partial is paid to a member without dependents assigned to singe-type quarters or is on field or sea duty, and 
is not entitled to receive a BAH.  Chapter 3.C.2.d. of the Coast Guard Pay Manual.   
3   Section 3702 of title 31 of the United States Code gives the Secretary of Defense, except as provided in this 
Chapter  or  another  law,  the  authority  to  settle  claims  involving  service  members’  pay,  allowances,  travel, 
transportation, etc., including the Coast Guard.  Subsection 3702 (b) mandates that a claim against the Government 
must be presented to the appropriate agency within six years after the claim accrues, and if not received in the time 
required  under  this  section,  the  claim  shall  be  returned  and  no  further  action  on  the  part  of  the  Government  is 
required.   
4  The Secretary of Defense delegated his authority under title 31 USC § 3702 to settle claims involving the pay and 
allowances of members of the Uniformed Services to the Defense Office of Hearings and Appeals.   
5   33 C.F.R. § 52.13 
6  See 32 CFR §§ 281-282; and DODI 1340.21 for Settling Personnel and General Claims and Processing, Advance 
Decision Requests, Enclosures 3-7, May 12, 2004. 

PPC argued that notwithstanding the above, the applicant has provided no evidence that 

he is entitled to BAH/with for the period in question.  In this regard, PPC stated the following: 

 
An  allowance  for  housing  cannot  be  paid  unless  authorized  by  some  statute  or 
regulation.  Coast Guard members entitled to basic pay are entitled to BAH paid 
according  to  the  member’s  pay  grade,  dependency  status,  and  geographic 
location. 
 

At  the  time  of  the  alleged  error,  [the  applicant]  lived  aboard  [a  Coast  Guard 
Cutter].   As  a  member  with  dependents  assigned  to  duty  aboard  a  cutter,  BAH 
regulations provided an entitlement payable at the rate prescribed for the ship’s 
homeport.  But a member is entitled to such a rate only when the government does 
not  furnish  adequate  quarters  and  their  dependents  are  not  en  route  to  the  duty 
station or local vicinity.  Even though he moved into government quarters a month 
later,  it  is  not  clear  from  the  record  [the  applicant]  applied  for  government 
housing after he married and was turned down or told to wait, or that his spouse 
was not en route.  He also provides no evidence his executive officer’s or anybody 
else’s counsel was misplaced or misguided.  And while it is unfortunate that the 
member may have received erroneous advice, if true, that does not provide a basis 
for payment of his claim because the government is not liable for the erroneous or 
negligent acts of its officers, agents, or employees.   

Even if the Board waives both the three-year and six-year limits, [the applicant] 
failed to establish an entitlement to BAH ‘with’ for the relevant period.  Instead, 
he only offers unsubstantiated assertions of fact his executive officer told him he 
was ineligible for BAH ‘with’ because he was a non-rate living on the ship.   

 

  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 

 

On September a copy of the views of the Coast Guard was sent to the applicant for his 

reply.  The Board did not receive a response from the applicant.   

  

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 submission and applicable law: 
 
 
of the United States Code.   
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

2.  The application was timely.  Although the application was not filed with the BCMR 
within three years of January 2001 when the alleged error or injustice was or should have been 
discovered, it is considered timely under 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).  The applicant has been on active duty since his enlistment on August 22, 2000.   

3.   Contrary to the advisory opinion, the Board finds that the applicant has exhausted his 
administrative remedies, as required by 33 C.F.R. § 52.13(b),7  because there is no other forum 
or  procedure  provided  by  the  Coast  Guard  that  is  currently  available  to  the  applicant  for 
correcting the alleged error or injustice in his military record other than the Board.  The six-year 
time period for filing a claim under 31 U.S.C. § 3702 with the Defense Office of Hearings and 
Appeals  has  expired  and  is  no  longer  “practical,  appropriate,  and  available.”8  However,  the 
applicant has a remedy through the correction of his record under 10 U.S.C. § 1552 which states 
that the Secretary of a military department may correct any military record when the Secretary 
considers  it  necessary  to  correct  an  error  or  remove  an  injustice.    In  this  regard,  the  Defense 
Office of Hearings and Appeals might not have been an appropriate forum even if it were still 
available to the applicant because the applicant’s application before this Board is more than a 
request  for  payment  of  money  based  on  existing  records,  it  is  a  request  for  a  correction  to 
documents in his record to show that he was entitled to BAH/with from the date of his marriage 
in December 2000 to January 3, 2001, the date he was assigned to government quarters.  
 

4.  Further, the applicant’s failure to file a claim under 31 U.S.C. § 3702 with the Defense 
Office of Hearings and Appeals does not constitute a waiver of his request for a record correction 
under  10  U.S.C.  §  1552.    Section  3702(a)  of  title  31  states  that  “Except  as  provided  in  this 
chapter or another law, all claims of or against the United States Government shall be settled as 
follows:    (1)  The  Secretary  of  Defense  shall  settle—(A)  claims  involving  uniformed  service 
members’  pay,  allowances,  travel,  transportation,  payments  for  unused  accrued  leave,  retired 
pay, and survivor benefits:” Section 1552 of title 10 of the United States Code is “another law.”   
Therefore, as stated above, pursuant to Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994), the 
applicant’s application is timely.    

5. With respect to the merits of the applicant’s claim, Chapter 3 of the Pay Manual states 
that  a  member  is  entitled  to  monthly  BAH  in  an  amount  that  is  dependent  on  their  grade, 
dependency status, and permanent duty station.  If a member is assigned to government housing 
the  amount  received  is  reduced  or  completely  set-off.  Prior  to  January  3,  2001,  the  applicant 
received partial BAH because he was single and assigned berthing on his cutter, which was his 
permanent  duty  station.    The  applicant  married  on  December  10,  2000  and  did  not  receive 
government  housing  until  January  3,  2001;  he  received  partial  BAH  for  the  period  from 
December 10 through January 2, 2001.  He seeks to have his record corrected to show that he is 
entitled to BAH/with for this period. 

 
6.  The applicant argued that his executive officer incorrectly counseled him that he could 
not receive BAH because he was a non-rate and had shipboard berthing.   However, the applicant 
offers no corroborating evidence from the executive officer, or anyone else, that he was provided 
                                                 
7  Section  52.13(b)  of  the  title  33  of  the  Code  of  Federal  Regulations  states  as  follows:  “No  application  shall  be 
considered  by  the  Board  until  the  applicant  has  exhausted  all  effective  administrative  remedies  afforded  under 
existing  law  or  regulations,  and  such  legal  remedies  as  the  Board  may  determine  are  practical,  appropriate,  and 
available to the applicant.” 
8  Id. 

with such counseling at any time.  Nor did the applicant state the date in December that he was 
allegedly counseled by the executive officer; he merely stated that he asked the executive officer 
about BAH in December 2000 and that he was married on December 10, 2000.  Nor does the 
applicant state explicitly that he told the executive office during the alleged counseling that he 
was married.   The applicant has offered insufficient evidence to prove that the executive officer 
counseled him that he could not receive BAH for the period in question.  Nor has the applicant 
pointed to any requirement for the Coast Guard to provide him with specific BAH counseling, 
and the Board is not aware of any such requirement.   

 
7.  According to Chapter 3.F.21. of the Pay Manual, to apply for BAH the applicant was 
required to submit a dependency worksheet with supporting documentation that he was newly 
married.  The CO was required to review and approve the applicant’s dependency worksheet and 
then submit it to the unit’s Personnel Reporting office. The applicant offered no indication as to 
when he completed the dependency worksheet for his wife, but he must have done so prior to 
January 3, 2001 because he was placed in government housing that day.  It would be conjecture 
on the Board’s part to correct the applicant’s record granting him BAH from a day certain when 
he has offered no evidence establishing the date that he was allegedly erroneously counseled by 
the  executive  officer  or  the  date  that  he  completed  the  necessary  paperwork  to  be  entitled  to 
BAH.  Therefore, even if the Board were to consider granting relief in this case, the inception 
date for the start of any BAH/with has not been established.  Additionally, the Board could find 
nothing  in  the  regulation  that  stated  that  a  member  was  entitled  to  be  paid  BAH  prior  to 
completion of the process establishing his entitlement to BAH/with.   

8.   It is clear to the Board that at some point after his marriage and prior to January 3, 
2001, the applicant applied for BAH because he received government housing 23 days after his 
marriage.    The  Board  finds  that  whenever  the  request  was  made,  the  Coast  Guard  acted 
expeditiously to place the applicant into government. 
 
 
should be denied. 
 
 

9.  The applicant has failed to prove an error or injustice in this case and his application 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

The application of XXXXXXXXXXXX, USCG, for correction of his military record is 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
Evan R. Franke 

 

 

 
 James E. McLeod 

 

 

 
 

 

 

 
 

 

 

 

 

 

 

 

 
 

 
 

 
 

denied.