From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. § 1552 (b) Joint Travel Regulations, Ch. 10 Encl: (1) DD Form 149 w/attachments (2) OCNO memo 7431 Ser N130C2/19U2005 of 7 Nov 19 (3) Subject’s naval record 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show Petitioner received Basic Allowance for Housing (BAH) differential from 2 November 2015 to January 2018. 2. The Board, consisting of , , and , reviewed Petitioner’s allegations of error and injustice on 25 August 2020 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, relevant portions of Petitioner’s naval record, 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. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. In accordance with reference (b), When a member is divorced from a nonmember, and they share joint legal custody of a child, and the ex-spouse is awarded primary physical custody, then the member is a non-custodial parent for housing allowance purposes. If the member’s court-ordered child support is less than the applicable BAH-DIFF rate, and the member is not residing in, or assigned to, government quarters, the member is only authorized a housing allowance at the without-dependents rate. However, a member who pays additional support to the ex-spouse having primary custody of the child(ren) so that the total child support provided is equal to or more than the BAH-DIFF rate, and who is not assigned to government quarters, is authorized a housing allowance at the with-dependents rate. c. On 2 June 2008, Petitioner got married. d. On 15 August 2012, Petitioner’s daughter was born. e. On 6 February 2014, Petitioner’s second daughter was born. f. On 2 November 2015, Petitioner got divorced. Based upon the parenting time of the parties, as well as the economic circumstances of both the Petitioner and the Respondent, child support was hereby set at zero. g. On 4 May 2016, Petitioner BAH was adjusted from BAH at the with-dependents rate to BAH at the without-dependent rate effective 1 January 2016. h. On 30 September 2016, Petitioner was transferred and arrived to , , , for duty. i. On 6 October 2017, Petitioner’s Motion to Relocate was granted, and on 11 January 2018, Petition to Modify Custody of minor children was approved with both parents sharing legal custody and the physical custody approximately as before (approximately 50%), as long as he resides within (60) minutes of the children’s schools. j. On 25 October 2017, Petitioner transferred and arrived to , on 26 October 2017. k. On 23 January 2018, Petitioner’s BAH was adjusted from BAH at the without-dependent rate to BAH at the with-dependents rate effective 11 January 2018. l. In correspondence attached as enclosure (2), the office having cognizance over the subject matter addressed in Petitioner’s application has commented to the effect that petitioner did not qualify for BAH-DIFF because she was not ordered to make child support payments. CONCLUSION Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosure (2), the Board agreed that Petitioner was not ordered to make child support payments; however, her two children were primarily living with her and they moved with her upon her relocation. The Board interpreted the excerpt from reference (b) to mean that because petitioner’s children were residing with her at least 50% of the time, even though Petitioner had no court-ordered child support payments, Petitioner was providing more support to her children than the BAH-DIFF rate. Therefore, the Board concluded that Petitioner was eligible for BAH at the with dependents rate for the time in question. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner was authorized BAH at the with-dependent rate for , from 2 November 2015 to 25 October 2017. Petitioner was authorized BAH at the with-dependent rate for from 26 October 2017 to 10 January 2018. Note: Defense Finance & Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay. 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. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy.