Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Zama, Japan
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/12/2015
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) in Zama, Japan. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of living quarters allowance (LQA). We received the claim request on July 14, 2014, the agency administrative report (AAR) on September 19, 2014, and the claimant's response to the AAR on October 7, 2014. For the reasons discussed herein, the claim is denied.
The claimant was an active duty U.S. Navy military member duty stationed in Japan when he applied for Federal civilian employment on August 28, 2013. In November 2013, he vacated the privatized housing he was occupying while in the military and moved his household goods (HHG) to another residence. He was selected for the position and given a tentative job offer on January 27, 2014. He separated from the military on February 1, 2014, and remained in Japan until his appointment to the Federal service on May 5, 2014, at which time the agency determined him ineligible for LQA.
The basis for the agency determination was twofold. First, the agency found him ineligible under the Department of State Standardized Regulations (DSSR) section 031.12a, which requires that, for employees recruited outside the United States, the employee's actual place of residence in the place to which the LQA applies at the time of receipt "shall be fairly attributable to his/her employment by the United States Government." The agency determined that at the time of appointment, the claimant's presence in Japan was not due to his Federal employment since he had chosen "to establish a residency off post in Japan by moving his household goods (HHG) at government expense on or about 11 November 2013." Second, the agency found him ineligible under DSSR section 031.12b as supplemented by the agency implementing regulations contained in Department of Defense Instruction (DoDI) 1400.25, Volume 1250. Section 031.12 of the DSSR states, in relevant part, that LQA may be granted to employees recruited outside the
a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and
b. prior to appointment, the employee was recruited in the
(1) the United States Government, including its Armed Forces;
(2) a
(3) an international organization in which the United States Government participates; or
(4) a foreign government
and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States.
The DSSR sets forth the basic eligibility criteria for the granting of LQA. However, under section 013, it allows agencies to issue implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments.
Thus, agency implementing regulations such as those contained in Department of Defense Instruction (DoDI) 1400.25, Volume 1250, dated February 23, 2012, and in effect at the time of the claimant’s appointment, may impose additional requirements to further restrict LQA eligibility.
DoDI 1400.25, Volume 1250, Enclosure 2, paragraph 2a, states, in relevant part:
Under the provisions of section 031.12b of [the DSSR], former military and civilian members shall be considered to have "substantially continuous employment" for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired or separated member or employee uses any portion of the entitlement for Government transportation back to the United States, whichever occurs first... In unusual cases, an employee may be considered to have substantially continuous employment even though a portion of the entitlement (e.g., early return of a family member or movement of household goods from non-temporary storage) has been used.
In explaining that the claimant did not meet the above provision, the agency states:
Examples provided in the DODI 1400.25M deal with service members using only those portions of their transportation entitlements which still allow them to retain travel entitlements for themselves and their HHG at the conclusion of their overseas civilian employment. [Claimant] moved his actual place of residence to Japan, at government expense, when he was assigned there in March of 2012... In lieu of utilizing his military transportation back to the United States, [claimant] decided to relocate his residence and HHG to off-base housing near Yokosuka, Japan using a portion of his military transportation entitlement during his separation. In doing so, [claimant] lost his HHG transportation benefits back to the United States at government expense. Therefore, regardless of the fact that he retained part of his military travel entitlement, his employer was no longer obligated to send his HHG back to the United States. As such, [claimant] does not meet the substantially continuous employment standard of the DODI and he is not eligible for LQA.
The claimant asserts he meets DSSR section 031.12a because his initial presence in Japan was attributable to his employment by the U.S. Navy, that he subsequently "was offered the position and accepted the position before [his] [military] separation date, which is [his] reason for remaining in Japan - employment at a DA civilian position at Camp Zama, Japan," and that "the move of [his] HHG does not indicate intention to reside in a locale." He asserts he meets section 031.12b because "prior to appointment, [he] was recruited in the United States (California) by the U.S. military under conditions which provided for [his] return transportation to the United States, which [he] still maintain[s] until August 1, 2014, at Command Naval Forces Yokosuka." In relation to DoDI 1400.25, Volume 1250, the claimant states:
Return travel to the United States for my HHG or myself did not occur, hence I still maintain my travel entitlement to the United States. However, I am unable to obtain a memorandum from the Transportation Officer at Command Naval Forces Yokosuka since he has stated that there is no obligation on his part to provide documentation stating my transportation entitlement was intact or not... and there is no instruction stating the applicant must provide documentation in order to verify the status of the applicant's transportation entitlement. The only documentation that I can provide in relation to my transportation entitlement is a letter from the HHG office stating I conducted a HHG move off-post as well as an affidavit stating I did not utilize my transportation entitlement for return travel to the United States. I am more than happy to refund the cost of the local move of my HHG if necessary, but according to the HRO representative as well as the US Navy transportation officer, a local HHG move off-post should not exhaust my transportation entitlement, especially since the move was local and not to the United States.
The claimant reiterates in his response to the AAR that he "did not use any portion of [his] entitlement for return travel to the United States for either [himself] or [his] household goods," apparently to support his assertion of eligibility under DSSR section 031.12b, and that he retained a portion of his transportation entitlement because "the military did have the obligation to return [him] to the United States for 180 days after [his] separation."
The agency notes that DoDI 1400.25 states that overseas allowances and differentials are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area and if the person is already living in the foreign area, that inducement is normally unnecessary. Within this context, the agency's determination of the claimant's eligibility under DSSR section 031.12a is largely subjective in nature and dependent on an assessment of whether his presence in Japan was "fairly attributable" to his Federal employment. The agency considers that the claimant's establishment of residency off-post prior to his receipt of the DA job offer indicated his intention to reside in Japan irrespective of any prospective Federal employment, and thus his presence there cannot be considered as "fairly attributable to his/her employment by the United States Government." [1] When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452,
In regard to the agency's determination of the claimant's ineligibility under DSSR section 031.12b, the claimant submitted, but disputes the conclusion of, a February 12, 2014, letter from an individual identified as the Traffic Manager, PPPO Yokosuka, which states:
Reviewing our records shows that the following member [i.e., claimant] made HHG transportation from 3-6-10 Zushi-shi, Japan to 1-3-4 Kamoi, Yokosuka, Japan using his separation orders (STO 019-14) dated 12 Nov 13. This is the last HHG transportation at the government expense and no further transportation is authorized.
The claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) is limited to the settlement of claims involving Federal civilian employees' compensation and leave. Transportation expenses are not considered "compensation," which refers exclusively to an employee's pay. Thus, we lack authority to consider any assertion by the claimant that his HHG transportation entitlement should not be considered exhausted.[2] Therefore, the claimant does not meet DoDI 1400.25, Volume 1250, Enclosure 2, paragraph 2a, because he used a portion of his entitlement for Government transportation back to the United States when he used his HHG transportation benefit for the local move.
The additional language of DoDI 1400.25, Volume 1250, Enclosure 2, paragraph 2, provides that, in unusual cases, an employee may be considered to have substantially continuous employment even though a portion of the entitlement has been used. The use of the discretionary term "may" in relation to this option as opposed to the mandatory term "shall" as used in the remainder of the paragraph indicates that the agency is given the authority to exercise this option in cases deemed "unusual" and consistent with the examples provided, but is not required to do so. In this case, the agency determined this was not warranted and, since this authority is discretionary on the part of the agency, we may not reverse their determination.
The claimant included with his claim a notarized affidavit stating: "I did not utilize my transportation entitlement before or after separation from the United States Navy to return to the United States in any manner and still maintain my transportation entitlement until 1 August 2014 upon which time my transportation entitlement will expire per Joint Federal Travel Regulations paragraphs U5125, U5225 and U5360." The claimant appears to misinterpret the DoDI "substantially continuous employment" provision; i.e., "for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired or separated member or employee uses any portion of the entitlement for Government transportation back to the United States," as meaning that for LQA purposes, the transportation entitlement is intact as long as no portion was used to return to the United States. However, DoDI 1400.25, Volume 1250, supplements but does not contradict the DSSR, which requires under section 031.12b that the "substantially continuous employment" be under conditions which provided for the employee's return transportation to the United States. A separated or retired military member has transportation entitlement back to the United States. However, if the member uses that transportation entitlement by either moving back to the United States, to another country, or by making a local move, then the conditions of DoDI 1400.25, Volume 1250, Enclosure 2, paragraph 2a, are not met because the entitlement to "Government transportation back to the United States" has been used and the member is no longer considered to have "substantially continuous employment" under conditions providing for return transportation to the United States.
The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQAs to agency employees. Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Thus, an agency may withhold LQA payments from an employee when it finds that the circumstances justify such action, and the agency’s action will not be questioned unless it is determined that the agency’s action was arbitrary, capricious, or unreasonable. Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Since an agency decision made in accordance with established regulations and within the agency's discretionary authority as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] We note the claimant does not state, in either his claim request or his response to the AAR, that he intended to return to the United States if he did not secure Federal employment, nor does he offer any explanation as to how the change of residence related to any such intention.
[2] Under the Joint Federal Travel Regulations, paragraph U5360-F, "[a] member authorized HHG transportation... who is required by competent authority to vacate GOV'T/GOV'T-controlled QTRS or privatized housing, is authorized a short distance HHG move from the vacated QTRS/privatized housing to a local temporary residence in the vacated QTRS/privatized housing vicinity." This is supplemented by Naval Supply Systems Command HHG Flash 11-14, dated October 2011, Subject: Local Moves ICW Retirement/Separation, which states that when a member vacates Government controlled quarters or privatized family housing, in cases "where it is found the move was not directed by the command and was only for the member's convenience, this move will count as the member's final separation/retirement move."