Washington, DC

U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code

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Damon Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


03/30/2017

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Date

The claimant is a Federal civilian employee of the Immediate Office of the Commander-in-Chief of U.S. Army, Department of the Army (DA), in Wiesbaden, Germany.  She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request for living quarters allowance (LQA) and a transportation agreement.  We received the request from the claimant on June 1, 2016, and the agency’s administrative report (AAR) and the claimant’s comments on the report on July 14, 2016.  For the reasons discussed herein, the claim for LQA is granted.

While employed with DA as a civilian employee at Shaw Air Force Base, South Carolina, the claimant applied for a GS-560-13 Supervisory Budget Analyst position advertised in March 2015 for DA’s G8 in Wiesbaden, Germany.  She was interviewed for the position in May 2015 but subsequently notified of the agency’s selection of another individual on June 1, 2015.  Meanwhile, the claimant had vacationed in Europe from May 13-29, 2015.  On September 18, 2015, the civilian personnel advisory center (CPAC) for the G8 organization extended a non-competitive employment offer to her for a GS-510-13 Accountant position.  She initially accepted but eventually declined the job offer after being notified that the non-competitive appointment type prevented the agency from offering her current rate of retained pay.  As an alternative, the CPAC indicated that management had identified the need for another GS-560 Supervisory Budget Analyst position; re-used the certificate on which she had previously been referred, interviewed, and non-selected; and selected her for the new position.  The claimant accepted the job offer with a November 15, 2015, report date.  The agency initially determined her eligible for LQA based on a review of her LQA Questionnaire reporting no overseas travel, which she had completed upon accepting the GS-510 Accountant position.  The claimant disclosed her May 2015 overseas travel to human resources officials upon her reporting to Germany, which triggered further review of her LQA eligibility and subsequent denial.

The Department of State Standardized Regulations (DSSR) contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.  Within the scope of these regulations, the head of an agency may issue further implementing instructions for the guidance of the agency with regard to the granting of and accounting for these payments.  Thus, Department of Defense Instruction (DoDI) 1400.25-V1250 and Army in Europe Regulation (AER) 690-500.592 implement the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted under the DSSR.  Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.

LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:

Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.

Relative to these criteria, DoDI 1400.25-V1250 defines “U.S. hire” as follows:

A person who resided permanently in the United States, or the Northern Mariana Islands, from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.

The agency’s December 18, 2015, denial of LQA eligibility stated the claimant no longer met the definition of a U.S. hire based on a review of an amended LQA Questionnaire.  The claimant disagrees, asserting her LQA eligibility as a U.S. hire based on receiving and accepting a job offer while she was residing, working, and maintaining a residence in South Carolina until she arrived overseas on November 8, 2015, and officially reported a week later for her new position.  She states in her AAR comments to OPM:

The initial issue in this claim was I had taken leave in May 2015 and this is why my initial approval for LQA was reversed.  I believe the claim should be approved due to the fact I was transitory in nature in May of 2015.  As for being in transitory on 15 Nov 2015, upon arriving in Europe on 8 November 2015, this status was due to official orders bringing me to Europe with leave enroute.

An employee’s status as a “U.S. hire” is based on permanent physical residency at the time of recruitment for the position in question.  We regard the term “reside” in terms of its commonly understood meaning and usage as to live in a place of one’s domicile or usual, customary dwelling place, distinguished from a temporary stay of short duration while in a travel, visiting, vacationing, or other clearly transitory status with expected return to one’s usual place of residence.  This does not require continual physical presence in the United States during the recruitment process, as long as any short-duration absences do not displace the actual residency.  Conversely, the use of the term “permanent” excludes transitory stays in the United States during the recruitment process falling short of actual residency as qualifying for “U.S. hire” status.  See OPM File Numbers 15-0018, October 15, 2015; and 16-0015, April 21, 2016.

The record shows the claimant vacationed for 17 days in Europe, after which she returned to her residence in South Carolina.  This approximate two-week vacation was of a transitory nature and does not displace her otherwise physical and permanent residency in the United States.[1]  Notwithstanding the recruitment period relevant to the claim which we will discuss later in the decision, we conclude the claimant’s approximate two-week European vacation is consistent with that of a vacation, temporary duty assignment, or other temporary absence and would not serve to disqualify her from consideration as a U.S. hire relative to DoDI 1400.25-V1250.

The agency states in its AAR to OPM that the human resources office made errors recruiting the claimant “while preserving her maximum entitlements that resulted in appointment circumstances rendering her ineligible for LQA.”  The agency explains the claimant’s declining the non-competitive job offer for the GS-510 Accountant position led to management’s “changed recruitment strategy” of identifying the need for a GS-560 Supervisory Budget Analyst in lieu of the GS-510 position.  Instead of competitively recruiting for the new GS-560 position, the CPAC allowed management to use the referral list from the March 2015 recruitment action on which the claimant had been referred but not selected.  The agency further states the job announcement for that recruitment action advertised a single position rather than multiple vacancies.  The agency sought to correct the claimant’s hiring action, resulting in her being non-competitively reassigned to her current GS-560 position.  As explained in the AAR to OPM:

We coordinated with [Civilian Human Resources Agency Europe Region] to correct the questionable “competitive” appointment to the GS-0560-13, Supervisory Budget Analyst position.  [Civilian Human Resources Agency Europe Region], following legal advice from HQDA, Office of the Judge Advocate General, corrected the appointment/reassignment, effective 15 November 2015, to a non-competitive action…As a result, there is no other factually accurate recruitment period the agency can rely upon.

The agency concludes:

This situation essentially involves the non-competitive appointment of an individual already non-transitorily residing in the overseas area, albeit as the result of agency errors.  This does not alter the fact that she cannot be considered eligible for LQA under the provisions of the DSSR Section 031.11 or under Section 031.12a and b.  Ms. Dudley was transferred from her previous assignment with the 3d Army (Aug) at Shaw [Air Force Base] to Germany under official government travel orders; however, she was reassigned under an improper hiring action.  Thus, at the time the action was corrected to the date the actual reassignment took effect (15 November 2015), Ms. Dudley already had been residing in Germany, without a valid overseas appointment, but in anticipation of one…

The claimant disagrees, stating in her AAR comments:

…there is no policy nor any regulation that disallows a civilian employee to go on leave in conjunction to a [permanent change of station].  Since LQA was already established before the orders are issued this is a moot point.

Contrary to agency assertions that the claimant is ineligible for LQA as a “U.S. hire” because she had “already been residing in Germany, without a valid overseas appointment” upon correction of the hiring action, the DoDI 1400.25-V1250 establishes a U.S. hire as a person who resided permanently in the United States…from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.  Any requirement to preserve residency in the United States ceases, for purposes of LQA eligibility as a “U.S. hire,” upon acceptance of a formal job offer.  Thus, an employee travelling outside the United States subsequent to acceptance of a job offer (e.g., one week prior to an official report date as in this instance) would be immaterial to consideration as a “U.S. hire” under the DoDI 1400.25-V1250.

Effective November 15, 2015, the claimant was initially reassigned to the GS-560 Supervisory Budget Analyst position under competitive procedures, as evidenced by the Standard Form 50 coding the action as a competitive reassignment.  However, the hiring action was later corrected to a non-competitive reassignment, approved on April 21, 2016, but made retroactive to November 15, 2015.  In its AAR to OPM, the agency asserts that her circumstances wherein her appointment changed from a competitive to a non-competitive assignment and her selection from an invalid certificate render her ineligible for LQA as a U.S. hire.  Regardless, as the claimant’s assignment was amended and made effective as of November 15, 2015, we are obligated for purposes of determining LQA eligibility to consider her circumstances, namely where she permanently resided from the time she applied for employment until and including the date she accepted the formal employment offer.  That the agency subsequently changed the legal authority of her position, from a competitive to a non-competitive reassignment, neither alters nor dismisses the circumstances of her recruitment involving the application for and acceptance of employment.

The record includes an October 2, 2015, employment offer from a representative of the Civilian Human Resources Agency Europe Region, extending the offer of the Supervisory Budget Analyst, GS-560-13, position to the claimant, who accepted on the same day.  That job offer, which resulted in relocating the claimant overseas on official permanent change of station orders moving her from her residence in South Carolina, stemmed from her applying for the first GS-560 vacancy.  That causal relationship leads us to conclude that if the claimant had not applied for the first GS-560 vacancy approximately seven months prior, the agency would not have extended an employment offer to her for the second GS-560 vacancy in October 2015.  Moreover, the claimant had resided in the United States from March 2015 when she applied for employment to October 2015 when she accepted the formal employment offer, with only the brief aforementioned European vacation in May 2015 after which she returned to her residence in South Carolina.  This vacation was of a transitory nature and does not displace her otherwise physical and permanent residency in the United States during the recruitment period.  Thus, the claimant meets DSSR section 031.11, as implemented by DoDI 1400.25-V1250 and its definition of “U.S. hire,” in that she is considered to have physically resided permanently in the United States from the time she applied for employment until and including the date she accepted a formal offer of employment.

AER 690-500.592 makes clear that when the provisions of the DSSR and the DoD implementing regulations have been met, the payment of LQA is mandatory upon satisfaction of certain other specified conditions.  Paragraph 7a. states, in relevant part:

 a. LQA Authorization. LQA is a payment intended to cover substantially all average allowable costs for suitable costs for a suitable, adequate lodging and selected utilties. LQA will be granted for the following APF [appropriated fund] employees; 

          (1)  Employees recruited in the United States or its possessions for positions at grades GS-09 (or equivalent), WG-11, WL-09, WS-05, and above… Employees who previously vacated an outside the continental United States (OCONUS) civilian or contractor position must have resided permanently in the United States for at least 1 year immediately before accepting the formal job offer.

The use of the mandatory term “will” in relation to the granting of LQA as opposed to the permissive term “may” used in the DSSR means that the United States Army, Europe, has obligated itself to grant LQA to those individuals who meet the additional conditions.[2]

The position occupied by the claimant for which LQA is requested is at the GS-13 grade level.  Further, although the claimant had previously occupied a Federal civilian position with DA in Italy from January 2011 to February 2012, she had permanently resided in the United States since that time.  Therefore, the claimant meets the additional conditions imposed by AER 690-500.592.

Because the claimant meets DSSR 031.11 and the agency implementing regulations contained in DoDI 1400.25-V1250 and AER 690-500.592, her claim for LQA is granted.

The claimant also appears to request reconsideration of an agency denial of a transportation agreement.  In an August 3, 2016, email to OPM, she submitted her initial transportation agreement which she states “shows the government moved me from the US and has an obligation to return me to the US after my completed tour of duty.”  Agency decisions regarding transportation agreement negotiations are at the discretion of the agency and are not subject to review under section 3702(a)(2) of title 31, United States Code (U.S.C.).[3]

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.

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