DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

LCC
Docket No. 3173-08
3 March 2009

From: Chairman, Board for Correction of Naval Records

Tor: Secretary of the Navy

 

Subj: REVIEW OF NAVAL RECORD ICO

    

Ref: (a) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 w/attachments
(2) PCS orders

(3) Letter for Parenting Plan
(4) Court Order

(5) Memo from CMC MPO

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in

effect, that the applicable naval record be corrected to show
Petitioner is entitled to payment of Basic Allowance for Housing
(BAH) at the “with dependent” rate and Family Separation
Allowance (FSA) for the period between 1 September 2007 and

14 May 2008. .

2. The Board, consisting of Messrs. George, Pfeiffer, and
Zsalman reviewed Petitioner’s allegations of error and injustice
on 22 December 2008 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on
the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

3. The Board, having reviewed all the facts of record
pertaining to Petitioner’s allegations of error and injustice,
finds as follows:

a. Prior to filing enclosure (1) with this Board,
Petitioner exhausted all administrative remedies afforded under
existing law and regulations within the Department of the Navy.
Docket No. 3173-08

b. Petitioner was divorced in 2003. The divorce decree
specified joint custody of the children of the marriage. The
decree also included a provision stating that it was “subject to
modification as mutually agreed by the parties.” From 2003 to
2007 he was entitled to and received BAH at the “with dependent”
rate based on the joint child custody arrangement.

c. In 2007, Petitioner received Permanent Change of Station
(PCS) orders to QM for a 12 month unaccompanied tour. For
an unaccompanied tour, transportation/travel of dependénts is
not authorized. See enclosure (2).

d. Petitioner’s parenting plan was that he would maintain
his house in California and his adult sister would live in the
house and care for — AOD Maabaaiil SN soe during the
period Petitioner was assigned 0 eeanAataam when he otherwise
would have physical custody of the child. See enclosure (3).

 

e. On 12 September 2007, Petitioner reported to SiMe .
He was assigned government quarters. His BAH at the “with
dependent” rate was stopped and “BAH-Diff” was started.

f. Petitioner sent numerous emails seeking to determine why
the change had been made and asserting entitlement to BAH at the
“with dependent” rate and Family Separation Allowance.

g. Petitioner was advised, essentially, that he did not
rate BAH at the “with dependent” rate and Family Separation
Allowance because of his (joint) custody arrangement and because
he was assigned government quarters.

h. Petitioner, with his former spouse’s concurrence,
thereafter sought and received a court order awarding him

“custody of eT | (sole)" effective retroactively to

“1 September 2007. See enclosure (4).

iL. Petitioner submitted the court order on 15 May 2008. At

that time, BAH for the dependent location OWE was
started and FSA was started prospectively. However,

Petitioner’s request for those allowances for the period
Docket No. 3173-08

1 September 2007 through 15 May 2008 was administratively
denied.

j. By enclosure (1), Petitioner seeks a change to his
record to show that he is entitled to (BAH) at the “with
dependent” rate and Family Separation Allowance (FSA) for the
period between 1 September 2007 and 14 May 2008.

k. In correspondence attached as enclosure (5), the office
having cognizance over the subject matter involved in
Petitioner’s application recommended denial, commenting that
Petitioner is only authorized BAH and FSA effective the date of
command notification of the court order. Retroactive payment of
pay and allowances (i.e. prior to 15 May 2008) are only
authorized when a certified administrative error was made
causing the member to be underpaid.

CONCLUSION:

Upon review and consideration of all the evidence of record,

notwithstanding the comments contained in enclosure (5), the
Board finds the existence of an injustice warranting the
requested relief. The Board gave due consideration to the

Manpower Policy Branch’s view that the entitlement should not be
recognized retroactively. However, the Board also notes that
Petitioner's former spouse apparently agreed to the change from
“Joint” custody to “sole” custody and the court determined that
the arrangement should be effective retroactively. These two
factors present unusual circumstances and suggest that
Petitioner likely would have sought and received the sole
custody order earlier if he had been aware of the adverse impact
the prior joint custody would have on his housing allowances.
Accordingly, the Board finds that the circumstances are such
that the Department of the Navy should give effect to the court
order retroactively to 1 September 2007 and recommends the
following corrective action.

RECOMMENDATION :

 

 

That Petitioner's naval record be corrected, where appropriate,
to show that:
Docket No. 3173-08

a. Petitioner was awarded sole legal custody of —iapinitigpmadé:isaudlamat:

 

b. A copy of this Report of Proceedings will be filed in
Petitioner’s naval record.

4. It is certified that a quorum was present at the Board’s
review and deliberations, and that the foregoing is a true and
complete record of the Board’s proceedings in_ the above-entitled

matter. He
ROBERT D. ZSALMAN WILLIAM J. HESS,
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your

review and action.

tops.

W. DEAN PFEIF

Reviewed and approved:

Qn dsS. C&L

DS-NV-O®X