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


01/09/2018

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Date

The claimant is a Federal civilian employee of the Department of the Army (DA), assigned to Headquarters, 595^th US Army Transportation Brigade (SDDC), at Camp Arifjan, Kuwait.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of involuntary separate maintenance allowance (ISMA).  We received the claim on October 4, 2016, and the agency administrative report (AAR) on November 2, 2016.  For the reasons discussed herein, the claim is denied.  

The claimant was reassigned effective March 20, 2016, from the position of Human Resources Specialist (Military), GS-201-12, with Headquarters, Military Surface Deployment and Distribution Command (SDDC), G1/4, Military Personnel and Training Division, at Scott Air Force Base (SAFB), Illinois, to his current position as an Administrative Officer, GS-341-12, with the Headquarters, 595^th US Army Transportation Brigade (SDDC), at Camp Arifjan, Kuwait.  The claimant began his service at SAFB as a temporary appointee effective June 6, 2011, and subsequently received a career-conditional appointment effective August 12, 2012, working at SAFB until his reassignment to his present position.  Camp Arifjan, Kuwait, is a post where accompanying family members are not authorized.  Consequently, the claimant requested ISMA for his spouse who could not accompany him on this restricted foreign post of assignment.  The agency denied his request for ISMA on the basis that his current assignment was not the reason for his separation because he was already physically separated from his family when he worked at SAFB and maintained a separate residence for his spouse and family [in the United States] while working at SAFB, and at the time he was reassigned to the unaccompanied position at Camp Arifjan, Kuwait.[1]  

Section 261.1.a. of the Department of State Standardized Regulations (DSSR) states:

Separate maintenance allowance (SMA) is an allowance to assist an employee to meet the additional expenses of maintaining members of family elsewhere than at the employee’s foreign post of assignment.  [italics added]

ISMA is a type of SMA which, under section 261.1.a(1), may be granted because of dangerous, notably unhealthful, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government.

Section 261.2 further emphasizes that:

SMA is intended to assist in offsetting the additional expenses incurred by an employee who is compelled by the circumstances described below [in section 262, to maintain a separate household for the family or a member of the family. [italics added]

Section 263.1 further notes that “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family” and thus in these circumstances SMA is not warranted.  

Section 040 m. of the DSSR defines “Family or family member” as one or more of the individuals listed in that section including a spouse “residing in the same quarters as the employee at his/her post or would normally reside at the post except for the existence of circumstances cited in section 262 warranting the grant of a separate maintenance allowance.”  “Post” means the place designated as the official station of the employee.  The regulations make clear that SMA may be granted only in those instances where the employee would otherwise be compelled to maintain a separate household for a family or family members and thus be burdened with assuming the additional expenses associated therewith.  However, the record indicates the claimant had already voluntarily chosen to normally reside separately (for several years prior to his reassignment to Kuwait) from his spouse in order to work at SAFB, despite the fact they occasionally were together for special events.  Therefore, in contrast to the regulation, it was not his current assignment that compelled him to maintain two separate households. 

The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees.  Thus, an agency may deny SMA payments 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 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 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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