B-236018, Aug 22, 1990

B-236018: Aug 22, 1990

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A divorced service member who pays child support for his daughter is not entitled to Basic Allowance for Quarters while he lives in quarters which exceed the minimum standard for his rank unless the only quarters available exceed the minimum standard and unless they are made available for joint occupancy. USAF - Claim for Basic Allowance for Quarters: This is in response to a request for an advance decision on the propriety of payment of Basic Allowance for Quarters (BAQ) to Air Force Colonel James W. The disbursing officer questions whether Colonel Goodman is entitled to BAQ at the "with dependents" rate on the basis of child support payments while he is occupying what appears to be family type government quarters. /1/ For the reasons presented below.

B-236018, Aug 22, 1990

MILITARY PERSONNEL - Pay - Basic quarters allowances - Rates - Determination - Dependents DIGEST: Under the provisions of the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), para. 30221, a divorced service member who pays child support for his daughter is not entitled to Basic Allowance for Quarters while he lives in quarters which exceed the minimum standard for his rank unless the only quarters available exceed the minimum standard and unless they are made available for joint occupancy.

Colonel James W. Goodman, USAF - Claim for Basic Allowance for Quarters:

This is in response to a request for an advance decision on the propriety of payment of Basic Allowance for Quarters (BAQ) to Air Force Colonel James W. Goodman, while he occupies government quarters. The disbursing officer questions whether Colonel Goodman is entitled to BAQ at the "with dependents" rate on the basis of child support payments while he is occupying what appears to be family type government quarters. /1/ For the reasons presented below, Colonel Goodman is not entitled to BAQ.

When Colonel Goodman arrived at Plattsburgh Air Force Base in August 1988, he was assigned an apartment in the Unaccompanied Officers' Quarters (UOQ) which, according to applicable guidelines, was appropriate for a member of his rank. Two weeks later Colonel Goodman, who considered the apartment inadequate, was permitted to move into family-type quarters on base that were redesignated as UOQ for his occupancy. Colonel Goodman had been receiving BAQ at the rate for members with dependents because he pays child support for his daughter, who does not reside in government quarters. His BAQ was terminated when he moved into family-type quarters, and he requests that it be reinstated.

The purpose of BAQ, authorized by 37 U.S.C. Sec. 403, is to "reimburse a service member for personal expenses incurred in acquiring non-government housing when rent-free government living quarters adequate for himself and his dependents,' are not furnished." Gunnery Sergeant Victoire E. McDonald, USMC, 60 Comp.Gen. 155, 156 (1981). Subject to certain requirements, a member who occupies government quarters and who pays child support for a child who does not live in government quarters may receive BAQ at the "with dependents" rate, as authorized in the Department of Defense Pay and Allowances Entitlements Manual (DODPM), para. 30221(a)(2). However, such a member may not receive BAQ at the "with dependents" rate if he occupies government quarters which exceed the minimum standards for the member's grade without affecting the right to BAQ unless the only quarters available exceed the minimum standards and are made available for joint occupancy with other members. See DODPM para. 30221(c) and Exec. Order No. 11,157, 404, 29 Fed. Reg. 7973 (1964). Even though the quarters occupied by Colonel Goodman were designated UOQ by the installation commander, it is our view that the actual facts in this case indicate that the quarters exceeded the standards for an unaccompanied officer of his grade. We have held that although a contemporaneous authorization is usually considered the best evidence of the facts, it is not conclusive when the facts are shown to be otherwise. 39 Comp.Gen. 561 (1960).

According to Air Force Regulation 90-9(C1), Colonel Goodman is entitled to 400 square feet of living space, including private living room, private bedroom, private bath, and semi-private kitchen. Because the apartment to which he was assigned when he arrived at Plattsburgh AFB met that standard, he was entitled to BAQ at the rate for members with dependents while he lived there, according to DODPM para. 30221(a)(2).

However, the family-type quarters Colonel Goodman now occupies contain 962 square feet of space, far exceeding the minimum standard. It contains a living room, a dining room/kitchen, a recreation room, 3 bedrooms, a bath, and a washroom. These quarters are not the only ones available and, according to Air Force guidelines, they cannot be made available for joint occupancy because they contain only one bathroom. Therefore, Colonel Goodman is not currently entitled to BAQ according to para. 30221(c) of the DODPM.

Since Colonel Goodman is not entitled to BAQ while he occupies his present quarters, we are retaining the voucher which accompanied this request.

/1/ The Department of Defense Military Pay and Allowance Committee has assigned control number DO-AF-1491 to the request.