BNUMBER: B-270432
DATE: June 24, 1996
TITLE: Senior Airman Calvin S. Watford, Jr.-Claim for Basic
Allowance for Quarters
**********************************************************************
Matter of:Senior Airman Calvin S. Watford, Jr.-Claim for Basic
Allowance for Quarters
File: B-270432
Date:June 24, 1996
DIGEST
An Air Force member is married to another member, and they have a
child. The member's spouse receives Basic Allowance for Quarters
(BAQ) at the with-dependent rate, and the member receives BAQ at the
without-dependent rate. The member has been awarded legal custody of
his brother by a court, and the brother is therefore now his
dependent. The member's claim for BAQ at the with-dependent rate is
denied because the brother joins the couple's child as a single class
of dependents who live in the family household. Only one of the
members may receive BAQ at the with-dependent rate, but they may
decide which one will do so.
DECISION
This is in response to a request for an advance decision regarding the
claim of Senior Airman Calvin S. Watford, Jr., for Basic Allowance for
Quarters (BAQ) pursuant to his guardianship of his brother, who is a
minor. His claim is denied.
Senior Airman Watford is married to another service member, and they
have one child. His spouse receives BAQ at the with-dependent rate on
behalf of that child, and Senior Airman Watford receives BAQ at the
without-dependent rate. In February 1995 a Virginia state court made
Senior Airman Watford the guardian of his 14-year old brother, who now
lives with Senior Airman Watford and his family.[1] Senior Airman
Watford claims BAQ at the with-dependent rate on account of his
brother.
The Defense Finance and Accounting Service (DFAS) submitted the claim
to us as a doubtful claim. Since Senior Airman Watford is married to
another member who is receiving BAQ at the with-dependent rate because
of their child, DFAS asks whether his brother joins the child in a
common class of dependents, in which case Senior Airman Watford is not
entitled to the with-dependent rate for his brother.[2]
Under 37 U.S.C. sec. 403, a member who receives basic pay is generally
entitled to BAQ, unless assigned to appropriate government quarters
adequate for himself and his dependents. BAQ is paid either at the
with-dependent or without-dependent rate. "Dependent" is defined in
37 U.S.C. sec. 401, and can include the member's spouse, child, parent,
or ward (an unmarried person placed in the legal custody of the member
by a court), if that person meets the requirements of the statute.
Wards were included among dependents with the enactment of Pub. L. No.
103-160, sec. 631, 107 Stat. 1683-1684 (1993).
The primary purpose of Congress in enacting sec. 631, was to provide
medical care to minors who were in the care of members. The
legislative history of sec. 631 reveals that in 1991 Congress recognized
that members and retired members were taking legal custody of minors
for humanitarian reasons and were unable to obtain military medical
care for them because the minors did not meet the definition of
"dependent" in 37 U.S.C. sec. 401, as it existed at that time. Congress
ordered the Secretary of Defense to submit a report on the feasibility
of providing military medical care to such minors, and sec. 631 was
enacted in response to the report.[3] Wards apparently were not
placed in the definitional category with children because some wards
are not related to their guardians and because the definition of
"children" is already complex, because it includes legitimate and
illegitimate natural children, stepchildren, and adopted children.
A member who is not living in government quarters and who has one
dependent (also not in government quarters) generally receives BAQ at
the with-dependent rate. Adding another dependent, even from another
category of dependents, does not necessarily increase his
entitlement-e.g., a member who has a wife (category 1 of dependents in
37 U.S.C. sec. 401) who is not a member and receives BAQ at the
with-dependent rate does not gain entitlement to any more BAQ when he
acquires one or more children (category 2 of dependents).
When two service members are married to each other and are not
provided appropriate government quarters, each is entitled to BAQ at
the without-dependent rate, unless one or both have dependents. See
generally the Department of Defense Military Pay and Allowances
Entitlements Manual, part 3, chapter 2, section C. If each of them
has children from an earlier marriage who live elsewhere and the
members live together as a family unit in non-government quarters, one
of the members is entitled to BAQ at the with-dependent rate and one
at the without-dependent rate. Petty Officer First Class Earl Duffy,
USNR, and Petty Officer Carole Duffy, USNR, B-217665, Aug. 23, 1985.
Likewise, when one of the members has a child from an earlier marriage
and they have a child of their marriage, one of them is entitled to
BAQ at the with-dependent rate and one at the without-dependent rate.
Warrant Officer Leola F. Cruise, B-180328, Oct. 21, 1974. The common
factor in these cases is that the dependent children all form one
class of dependents, and all could reside with the members but for
reasons of a personal nature. Id.; and Pay Manual, paragraph
30232(b).
The present situation is analogous to that in Warrant Officer Leola F.
Cruise, supra. The child of the Watfords' marriage and Senior Airman
Watford's brother, who is now in effect his adopted son, form one
class of dependent children who reside together. The Watfords may
choose which spouse is to receive BAQ at the with-dependent rate and
which at the without-dependent rate. Payment of BAQ at the
with-dependent rate to both would constitute an unwarranted gratuity
unrelated to their housing needs. Petty Officer First Class Earl
Duffy, USNR, and Petty Officer Carole Duffy, USNR, supra.[4]
Senior Airman Watford's claim for BAQ at the with-dependent rate is
therefore denied.
/s/Seymour Efros
forRobert P. Murphy
General Counsel
1. The Secretary of the Air Force has apparently determined under 37
U.S.C. sec. 403(h) that Senior Airman Watford's brother is his dependent.
That determination is final and not subject to review by any
accounting officer.
2. DFAS has informally advised us that it is their view that the ward
joins the Watfords' child in a common class of dependents and that
Senior Airman Watford is therefore not entitled to BAQ at the
with-dependent rate on account of his ward. DFAS administers the
relevant regulation, the Department of Defense Military Pay and
Allowances Entitlements Manual; deference is generally accorded to the
interpretation of a regulation made by the agency which administers
it.
3. See Pub. L. No. 102-190, sec. 732, 105 Stat. 1407-1408 (1991); and
H.R. Rep. No. 200, 103d Cong. 1st Sess. 295 (1993) reprinted in 1993
U.S.C.C.A.N. 2013, 2082.
4. If the Watfords had no children when Senior Airman Watford was
granted custody of his brother, it would be appropriate for one of
them to begin receiving BAQ at the with-dependent rate. In the
present situation Senior Airman Watford's spouse was already receiving
BAQ at the with-dependent rate for their child. Adding children to a
military family does not increase BAQ at the with-dependent rate.
Since Senior Airman Watford's brother is in effect an adopted child of
the family, it is our view that additional BAQ is not payable in this
situation.