Senior Airman Calvin S. Watford, Jr.-Claim for Basic

B-270432 Jun 24, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights An Air Force member is married to another member. They have a child. 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. 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. Who is a minor. His claim is denied. Senior Airman Watford is married to another service member. They have one child. Since Senior Airman Watford is married to another member who is receiving BAQ at the with-dependent rate because of their child. In which case Senior Airman Watford is not entitled to the with-dependent rate for his brother. [2] Under 37 U.S.C. View Decision Matter of: Senior Airman Calvin S. Watford, Jr.-Claim for Basic Allowance for Quarters File: B-270432 Date: June 24, 1996 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.