Matter of: Sergeant Teddy L. Owen, Jr. File: B-249667 Date: February 8, 1993

B-249667: Feb 8, 1993

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An Iowa court ruled that Sergeant Owen was the father of a child born out of wedlock on July 15. Sergeant Owen applied to the Air Force Board for Correction of Military Records to have his records corrected to show that he was entitled to retroactive BAQ at the with-dependent rate from July 15. Submitted the matter of retroactive BAQ at the with-dependent rate to our Claims Group as a doubtful claim because the member did not provide current support for the child during the period that the paternity action was pending in court. The Claims Group advised the Air Force that Sergeant Owen was entitled to the retroactive BAQ if he could furnish evidence that the child was dependent upon him. The letter noted that the proof they required was canceled checks from the period July 15.

Matter of: Sergeant Teddy L. Owen, Jr. File: B-249667 Date: February 8, 1993

MILITARY PERSONNEL Pay Allowances Eligibility Dependents Determination Under 37 U.S.C. Sec. 403(h), Secretary of Air Force has the final determination regarding dependency for basic allowance for quarters (BAQ) for enlisted members of the Air Force. Thus, when the Secretary acting through the Air Force Board for Correction of Military Records corrected the member's records to show that he had applied for BAQ at the with- dependent rate retroactively and the application had been approved, finance official should give effect to the correction by paying the claim.

DECISION Sergeant Teddy L. Owen, Jr., has appealed the settlement of our Claims Group regarding his claim for the retroactive payment of basic allowance for quarters (BAQ) at the with-dependent rate from July 15, 1986, to November 15, 1987.

On September 4, 1987, an Iowa court ruled that Sergeant Owen was the father of a child born out of wedlock on July 15, 1986, and ordered him to pay child support of $300 per month retroactive to July 15, 1986.

On September 28, 1988, Sergeant Owen applied to the Air Force Board for Correction of Military Records to have his records corrected to show that he was entitled to retroactive BAQ at the with-dependent rate from July 15, 1986, until November 15, 1987. On October 30, 1989, the Board determined that Sergeant Owen's records should be corrected to show that he had applied for and had been granted approval by competent authority to receive BAQ at the with-dependent rate effective July 15, 1986.

Subsequently, the Air Force Accounting and Finance Center, Denver, Colorado, now Defense Finance and Accounting Service, Denver Center (DFAS- D), submitted the matter of retroactive BAQ at the with-dependent rate to our Claims Group as a doubtful claim because the member did not provide current support for the child during the period that the paternity action was pending in court. The member provided the support for this period retroactively by payments made through the court system.

On March 6, 1991, the Claims Group advised the Air Force that Sergeant Owen was entitled to the retroactive BAQ if he could furnish evidence that the child was dependent upon him, that support has been provided, and that the funds he provided had been used to support the dependent.

On March 13, 1991, DFAS-D corresponded with Sergeant Owen and advised him that if he submitted evidence of the payments, they would give consideration to the claim. The letter noted that the proof they required was canceled checks from the period July 15, 1986, to November 15, 1987 to show current support of the child. The letter stated that retroactive payments of support, i.e., payments made after November 15, 1987, would not serve as proof of support for that period. Since Sergeant Owen made the payments retroactively he could not furnish the evidence requested. DFAS-D would not pay the claim and he appealed that decision to this Office.

Section 403(h) of title 37, U.S. Code provides:

"(h) The Secretary concerned, or his designee, may make any determination necessary to administer this section with regard to enlisted members, including determinations of dependency and relationship, and may, when warranted by the circumstances, reconsider and change or modify any such determination. This authority may be redelegated by the Secretary concerned or his designee. Any determination made under this section with regard to enlisted members is final and is not subject to review by any accounting officer of the United States or a court, unless there is fraud or gross negligence." [Emphasis added.]

Although our authority is limited by this section, it is our view that since Sergeant Owen is an enlisted member, a determination by the appropriate Air Force official in this case would be final. The required Secretarial determination was made by the Secretary acting through Air Force Board for Correction of Military Records when Sergeant Owen's records were corrected to show that BAQ at the with-dependent rate had been applied for and had been approved effective July 15, 1986.

Accordingly, DFAS-D should give effect to this action by paying the claim since the Secretary has the authority to make all determinations necessary to administer BAQ for enlisted members.