Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Stuttgart, Germany
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/13/2017
Date
The claimant is a Federal civilian employee of the Department of the Air Force (AF) in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA) to provide a separate domicile for his spouse and dependent child based on “extenuating family circumstances” for the entire period of his initial overseas tour from November 30, 2015, to approximately November 29, 2018. We received the claim on April 14, 2016, and the agency administrative report (AAR) on July 13, 2016. For the reasons discussed herein, the claim is denied.
While residing in the United States, the claimant applied and was selected for his AF position at Stuttgart, Germany. His spouse and dependent child remained in the United States while he arrived overseas to complete his 36-month tour with AF. In his claim request to OPM, he states VSMA should be approved for reasons based on the “educational desires of [his] wife and high-school-aged daughter” and financial hardships. He states his spouse had been pursuing a psychology degree for over two years, and she plans to attend, if accepted, Clarkson College for a nursing degree in Omaha, Nebraska. According to the claimant, his spouse’s student loans have been deferred while she attended college but would require they begin immediate repayment should she cease her studies to join him in Germany. Furthermore, he states his 16-year old daughter was a high school junior at the time and intended to continue attending her high school until her expected graduation in May 2017. He points out his daughter is not a “legal” adult until she is 19 years old, per Nebraska State Law, and that he and his spouse “cannot send her to Nebraska, from Germany, to attend college without parental support in Nebraska while she is under the age of 19.” The agency partly approved his VSMA request to allow his daughter to complete the current school year (2016) and his spouse to provide her supervision, prior to following the claimant overseas. However, the agency denied his VSMA request for the remaining period of his initial overseas tour.
The Overseas Differentials and Allowances Act, as amended and codified in Section 5921 – 5928 of title 5, United States Code (U.S.C.), provides that, under regulations prescribed by the President, a separate maintenance allowance (SMA) may be paid to Federal employees in foreign areas. Section 5924(3) of 5 U.S.C. states that SMA may be granted to assist an employee who is compelled or authorized, because of dangerous, notably unhealthy, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because of special needs or hardship involving the employee or the employee’s spouse or dependents, to meet the additional expenses of maintaining, elsewhere than at the post, the employee’s spouse or dependents, or both.
By Executive Order, the President delegated this authority to the Secretary of State, who issues the Department of State Standardized Regulations (DSSR) governing overseas allowances and differentials. The DSSR further delegates the authority to grant SMA to the heads of Federal agencies. Section 262 of the DSSR states:
SMA may be granted to an employee whenever the head of agency determines that the employee is compelled to maintain any or all members of family elsewhere than at the foreign post of assignment…
Section 262.2 further describes VSMA, in relevant part, as follows:
An agency may authorize VSMA when an employee requests VSMA for special needs or hardship prior to or after arrival at post for reasons including but not limited to career, health, educational or family considerations for family members…
The agency’s March 3, 2016, decision regarding the claimant’s VSMA request explained that allowances are approved in situations to allow children to complete the current school year prior to following the sponsor overseas, or for family members requiring medical care not available overseas. The agency concluded that the documentation the claimant provided to request VSMA for his spouse and child to remain in the United States were not compelling and instead based on “personal choices” rather than for special needs or hardship as described by DSSR section 262.2.
The agency expanded its rationale for denying VSMA for the remaining period of the claimant’s initial overseas tour in its AAR to OPM, stating:
His request was denied because we did not find any of the reasons presented to be “compelling” in the sense that the AF caused them in any way. The decision to apply for a job overseas and accept it, was completely voluntary on Mr. Correll’s part and it appears the family made the conscious decision to separate the family long before Mr. Correll traveled to Germany. Had financial hardship been an issue at the time, the job offer could easily have been declined by Mr. Correll.
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[The claimant’s daughter’s] current schoolyear ended in May 2016, so her joining her father would not have caused any kind of interruption of her education. Her wanting to graduate with her peers at the school she has been attending throughout her school age and her desire to move on to College afterwards is understandable, but cannot be considered compelling either; it rather represents [claimant’s daughter’s] personal desires supported by her parents by living with the separation. The fact of the matter is she actually could have moved to Stuttgart after completion of her current school year in June 2016, and been sent off to college after the next school year using the Student Dependent Travel option, with minimum disruption of her education.
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Similarly, Ms. Correll’s application at Clarkson College was pending acceptance when he applied for VSMA. She could have joined him at his overseas assignment, but decided to stay in the US and continue to apply at Clarkson College until accepted in order to obtain her Bachelors of Nursing (BSN) degree. Again we fail to see how this situation is anything but a personal decision, rather than a compelling reason for the family separation.
The claimant disagrees with the agency’s denial, stating in his claim request to OPM:
[The Civilian Personnel Officer] portends to understand or even consider my family’s personal challenges and, in particular, assumes without further investigation on his part, that my reasons for requesting VSMA was for solely for my wife’s “career” as he so states in his letter of denial. However, my request letter does not use the words “career” or “job” or ‘vocation” at any point in my letter. In the response letter, [the Civilian Personnel Officer] totally ignores the educational desires of my wife and high-school-aged daughter and disregards financial hardships that will be caused if my wife must discontinue her education to accompany me here in Germany thereby forcing me to begin paying her student loan debt – without completing her training!
However, the language applying to SMA in 5 U.S.C. 5924 is permissive rather than mandatory, and the language in the DSSR is similarly permissive. By the use of the permissive term “may” as opposed to the mandatory terms “will,” “shall,” or “must” in relation to SMA, agencies are granted discretionary authority in allowing or disallowing SMA in individual cases. Under statutes that vest a degree of discretion to administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with the established facts as to render its conclusion unreasonable. In this case, the agency stated that VSMA is approved in situations to allow children to complete the current school year prior to following the sponsor overseas, or to family members requiring medical care not available overseas. Consistent with that practice, the agency partially approved the claimant’s VSMA request to allow his daughter to complete the current school year and for his spouse to provide her supervision. In his claim request to OPM, the claimant disagrees with the agency using the “’past practice’ excuse as justification for denial,” and asks, “How can [the Civilian Personnel Officer] presume to use “past practice” as the “cookie-cutter” basis for all VSMA requests?” Regardless, where an agency decision is consistent with their established practice in similar situations, it cannot be considered arbitrary, capricious, or unreasonable, and there is no basis on which to reverse the decision. For the reasons stated above, we find no reason to disturb the agency’s decision to deny VSMA beyond the already approved time period and his claim request for additional VSMA is denied.
The claimant asserts the agency misplaced his original VSMA request for three weeks, but he does not explain why he believes his eligibility for the allowance would have changed had the agency reviewed his request without delay. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous actions of a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). Therefore, that the agency misplaced his original request does not confer eligibility not otherwise permitted by statute or its implementing regulations.
This settlement is final. No further administrative review is available within the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.