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


08/22/2018

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Date

The claimant is a Federal civilian employee of the Department of the Air Force (AF) in Okinawa, Japan.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA).  We received the claim on January 8, 2018, and the agency administrative report (AAR) on April 11, 2018.  For the reasons discussed herein, the claim is denied. 

The claimant became a Supervisory Community Services Specialist, GS-1101-13 assigned to the 18th Force Support Squadron, Pacific Air Forces (PACAF), at Kadena Air Base in Okinawa, Japan, effective September 4, 2016.  His spouse accompanied him on his overseas tour.  In August 2017, the claimant was notified of his mother-in-law’s failing health and decided that the best option for his family was for his spouse to permanently return to the United States to provide care for her elderly and ill mother.  On August 23, 2017, the claimant submitted a request for VSMA citing his mother-in-law’s health condition as the reason for the family separation. 

On October 17, 2017, the agency disapproved the claimant’s VSMA request stating that it did not meet the intent of the Department of State Regulations (DSSR) sections 261.2 and 262.2, and the AF, PACAF, “Clarification of Separate Maintenance Allowance (SMA) Policy” in B&E Memorandum 14-1, dated August 25, 2014. [1]

Specifically, the agency states:

In this specific case the reason for Ms. Freund’s stateside return was to provide care for her mother, [mother’s name].  Ms. Freund’s return was not a result of her personal medical condition.  Also, it is important to point out that [mother’s name] is not considered an authorized family member IAW the DSSR and therefore, overseas allowances and entitlements do not pertain to her. 

The claimant disagrees with his agency’s decision, stating, “I am not seeking SMA for my mother-in-law, I am seeking SMA for my spouse whom I support 100%....  PACAF claims my spouse returning to support her mother was a personal preference and does not obligate the government to expend additional funds.  Unfortunately, this puts a financial burden on myself and family attempting to support two households.” 

In its AAR, the agency expanded on its rationale for denying the claimant VSMA, stating:

IAW the DSSR 161.2 [sic] SMA is intended to assist in offsetting additional expenses incurred by an employee who is compelled by special circumstances to maintain a separate household for the family or a member of the family.  Situations that warrant voluntary SMA are things such as career, health, education, and family member consideration.  Family members are defined in DSSR 040m and 261.1b.  For a parent to be considered a dependent, the DSSR requires the employee provides at least 51% support and the parent must have resided with the employee for 12 months prior to the arrival at the foreign post.

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…Prior to Mr. Freund’s arrival to Kadena AB, Japan, his mother-in-law was not his legal dependent because she did not live with the Freunds nor do they provide at least 51% of the [sic] her financial support. 

The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260.  DSSR section 261.2 describes the purpose of SMA and provides, in relevant part:

SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below [one of which being where VSMA is authorized for special needs or hardship of the employee] to maintain a separate household for the family or a member of the family. 

 DSSR section 262 Circumstances Warranting SMA states, in relevant part:

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 [based on certain circumstances, including special needs or hardship of the employee]. (emphasis added)

Voluntary SMA (VSMA) is one type of SMA.  Section 262.2 Voluntary SMA (VSMA) – For Special Needs or Hardship of the Employee provides, in relevant part:

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 as defined at DSSR 040m. (emphasis added)

With respect to the treatment of parents as family members under the DSSR, DSSR 040m defines “family” or “family member” as follows:

“Family” or “family member” means 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 separate maintenance allowance, 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…

Further, DSSR section 261.1(b) provides, in relevant part, the following definition of “Member of family” for SMA purposes:

“Member of family” means an individual as defined in Section 040m (1) through (4), except that, to be considered a member of family for separate maintenance allowance 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.

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. 

Agencies may authorize VSMA for special needs or hardship of the employee if the requirements for authorization are met.  In this instance, the requirements are not met because the claimant’s mother-in-law is not a “family member” as defined by DSSR 040m because there is no indication that the mother-in-law is at least 51 percent dependent on the claimant for support.  While the inquiry ends there due to ineligibility under DSSR section 040m, we also note that, even assuming arguendo that claimant’s mother-in-law was an eligible “family member” under DSSR section 040m, she fails to meet the definition of “member of family”, which is specific to authorization of SMA, because there is no indication that the claimant’s mother-in-law resided with him for a minimum of 12 months prior to the request for VSMA.  Therefore, the claimant’s mother-in-law cannot be considered a “member of family” as defined by DSSR section 261.1(b) for SMA purposes.  

SMA is a discretionary allowance, not an entitlement.  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).  In this case, the claimant has failed to do so.  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 decision to disapprove VSMA and the claim request is denied.

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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