Washington, DC

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

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


10/17/2017

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Date

The claimant is a Federal civilian employee of the Department of the Army in Manama, Bahrain.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA) to support his spouse and dependent children.[1]  We received the claim on March 8, 2016, and the agency administrative report (AAR) on April 21, 2016.  For the reasons discussed herein, the claim is denied.

While residing in the United States, the claimant applied and was selected for his Army position in Doha, Qatar, effective June 16, 2012.  His spouse and dependent children accompanied him on his overseas tour.  On May 8, 2015, the claimant was notified that his father-in-law required surgery on May 14, 2015, and his spouse’s presence was recommended.  On or around June 19, 2015, his spouse and children returned to the United States under Government-funded travel orders prior to the end of the claimant’s overseas tour.  The agency denied the claimant’s subsequent December 2015 request for VSMA, which he based on his spouse and children returning to the United States in response to his father-in-law’s health condition.  Effective February 7, 2016, he was reassigned from Qatar to Manama, Bahrain.  In his claim request to OPM, the claimant provided additional explanations for his family’s departure from Qatar, stating:

…during the onset of my [outside Continental United States] tour there were several issues with my family’s residency status somethings [sic] were not done correctly at the beginning of our [permanent change of station], and it effected the residency status of my children for school purposes.  During the middle of my kids second year of school they were put out of school due to a residency issue.  We transitioned to online schooling hoping to keep them on track for the remainder of that school year.  This was unsuccessful, and after trying everything we possibly could my children ultimately wound up one school year behind.  In trying to work with the school to rectify the situation my kids would have also needed to attend summer school for two years, and would still have graduated a year later.

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, 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 denied the claimant’s VSMA request, explaining in its January 27, 2016, decision:

The purpose of the allowance is to assist in offsetting the additional expense incurred by an employee who is compelled to maintain a separate household for the family.  While this appears to [be] the case in Mr. Coles’s situation, as his spouse returned to the United States and took up residence with her ailing father, because of the discretionary nature of the allowance, the Department of Army…only favorably considers requests for voluntary SMA for health reasons for family members of the employee.  While we are sympathetic to Mr. Coles’s situation, we are unable to authorize the allowance since the return of his family to the United States was not precipitated by a medical condition of one of his family members.

In its AAR to OPM, the agency further explained its rationale for denying the claimant’s VSMA request, citing DSSR 040m which defines “family or family member” as follows:

…one or more of the following individuals residing in the same quarters as the employee at his/her post, or who would normally reside at the post except for the existence of circumstances cited in Section 262 warranting the grant of a [SMA], but who does not receive from the Government an allowance similar to that granted to the employee and who is not deemed to be a dependent or a member of the family of another employee for the purpose of determining the amount of a similar allowance:…(3) parents (including step- and legally adoptive parents) of the employee, of the spouse, or of the domestic partner, when such parents are at least 51 percent dependent on the employee for support…

The language authorizing 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.  With regard to 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.  The agency states that VSMA requests are considered in situations relating to the health of family members.  In this case, the agency concludes the claimant’s father-in-law cannot be considered a “family member” as defined by DSSR 040m.  We also note the claimant’s situation does not meet the definition established by DSSR 261.1(b), stating:

“Member of family” means an individual as defined in Section 040m (1) through (4), except that, to be considered a member of family for [SMA] purposes, parents, sisters and brothers must have resided with the employee for a period of at least 12 months immediately prior to the date of application.

Since there is no indication he resided with the claimant for a minimum of 12 months prior to the request for VSMA, his father-in-law cannot be considered a “member of family” as defined by DSSR 261.1(b).  Where an agency decision is consistent with established regulations, 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 and his claim request is denied.

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.

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