Washington, D.C.
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Army Garrison
Yongsan, South Korea
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/23/2020
Date
The claimant is a Federal civilian employee of the U.S. Department of the Army (DA), in Yongsan, South Korea. He requests the U.S. Office of Personnel Management (OPM) reverse his agency’s denial of living quarters allowance (LQA) and award him payment retroactive to May 15, 2016. We received his claim on June 19, 2018, and the agency administrative report (AAR) on October 23, 2019. For the reasons discussed herein, the claim is denied.
On November 19, 2015, while employed by the U.S. Air Force (AF) at Nellis Air Force Base (AFB) in Las Vegas, Nevada, the claimant applied for an Operations Specialist (OS) GS-301-11, position with DA U.S. Army Garrison, Red Cloud (USAGRC) in Uijongbu, South Korea. On December 22, 2015, the claimant sold his home in Nevada and moved his belongings into a storage unit. On December 25, 2015, three days after the sale of his home, the claimant traveled outside the continental United States (OCONUS) to South Korea. On March 14, 2016, while in South Korea, the claimant was offered and accepted DA’s tentative job offer for the OS position. On March 15, 2016 the claimant returned to the continental United States (CONUS) after 77 days of travel OCONUS in South Korea. Prior to his appointment to the OS position, the agency determined the claimant was ineligible for LQA because he did not meet the eligibility requirements in accordance with the Department of State Standardized Regulations (DSSR) 031.11, 031.12(a), (b), and the Department of Defense Instructions (DoDI) 1400.25 volume 1250. Nonetheless, the claimant accepted the agency’s offer without LQA and was officially appointed to the OS position with USAGRC on May 15, 2016.
Approximately two years later, on May 13, 2018, the claimant was promoted to his current position as a Plans and Operations Specialist (POS) GS-301-12, with the U.S. Army Garrison (USAG) in Yongsan, South Korea. Upon his promotion, DA determined the claimant was ineligible for LQA because he failed to meet eligibility requirements described in the Army in Korea Regulation (AKR) 690-10, Chapter 2. Specifically, because he accepted his previous OS position in Uijongbu, without LQA benefits.
The claimant believes DA erroneously determined him ineligible for LQA for his OS position and believes his Nevada voter’s registration, driver’s license, position at Nellis AFB, and the storage of his household goods were evidence of his U.S. residency. He further asserts that although he accepted the OS position without an LQA benefit, it was because he was unable to make an informed decision because the agency failed to provide him with accurate information. Specifically, he states:
“…CHRA-FE [agency] provided me [claimant] with incorrect information from which to make an acceptance decision about LQA or correct knowledge from which to start an appeal [claim] based on OPM decision from OPM file number 16-0015…”
The claimant also states he was advised by agency personnel that:
“…traveling outside the U.S. during the hiring process was not grounds for disqualification for LQA and that he believed CHRA-FE had made an error in their original determination…”
The Department of State Standardized regulations (DSSR) contains 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 regards to the granting of and accounting for these payments. Thus, DODI 1400.25, Volume 1250 and AKR 690-10 implement and may further restrict the provisions of the DSSR but they may not extend benefits that are not otherwise permitted by the DSSR.
DSSR section 031.11 states in relevant part:
“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.”
DSSR section 031.12 states in relevant part:
Quarters allowances prescribed in Chapter 100 may be granted to employees recruited outside the United States provided that:
a) the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and
b) prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States, by:
(1) the United States Government, including its Armed Forces;
(2) a United States firm, organization, or interest;
(3) an international organization in which the United States Government participates; or
(4) a foreign government
and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States.
DoDI 1400.25, Volume 1250, which provides Department of Defense policy for the granting of LQA, defines “U.S. Hire” as:
“…A person who physically resided permanently in the United States or the Commonwealth of the Northern Mariana Islands from the time the employee applied for employment until and including the date the employee accepted a formal offer of employment.”
AKR 690-10, Chapter 2, which implements LQA policy to appropriated fund civilian employees of the U.S. Army in Korea provides:
b. LOCALLY HIRED EMPLOYEES. LQA for locally hired employees may be granted under the following conditions:
(1) The position is announced worldwide and the position has been pre-determined to be hard-to-fill as defined by CHRA-FE and DHRM, and;
(2) The employee meets basic eligibility requirements to receive LQA as defined by the DSSR, section 031.12a and b, and;
(3) The employee did not previously accept a position for which LQA was not offered.
Applying the DoDI 1400.25, Volume 1250, it is clear an employee’s status as a “U.S. hire” is based on physical residency in the United States during the recruitment for the position in question. Thus, an employee must be “physically” residing in the United States from the time of application until acceptance of a formal job offer. This language does not allow for a more expansive interpretation, such as residency based on current employment in a position or the storage of household goods within the United States. Therefore, whether an employee is deemed to be recruited inside or outside the United States depends upon the physical location of the employee throughout the recruitment process. See OPM file Number 18-0027, dated March 5, 2019. In this case, the claimant traveled OCONUS to Korea during the recruitment process from December 25, 2015 through March 15, 2016. Thus, the claimant was not permanently and physically residing in the United States from the time he applied for employment with DA until and including the date he accepted the formal job offer for the OS position. Consequently, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI and the claim is denied.
As it relates to the claimant’s LQA eligibility upon his promotion to the POS position, he offers no evidence that he met the requirements of DSSR section 031.12b or AKR 690-10, as shown above. Therefore, he may not be considered eligible for LQA for the POS position either and that claim is also denied.
The claimant’s characterization of OPM decision 16-0015 as being relevant to his present claim is misplaced. In 16-0015, OPM granted an LQA claim pursuant to an Army in Europe Regulation (AER) 690-500.592, dated November 18, 2005, that mandated the payment of LQA upon satisfaction of certain other specified conditions. The claimant’s comparison fails because that regulation, which has since been rescinded, prescribed LQA policy for employees of the U.S. Army in Europe. Since the claimant was not and is not an employee of the U.S. Army in Europe during the period of this claim, neither AER 690-500.592 nor 16-0015 are applicable to the claimant’s situation.
The claimant’s assertion that he was provided with erroneous information from agency personnel is inapposite. It is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are 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). Furthermore, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927, October 27, 1971: B-187104, April 1, 1977; and B-192510, April 6, 1979.
DoDI 1400.25, Volume 1250, specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. Furthermore, the statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQAs to agency employees. Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Thus, an agency has the authority to deny LQA payments to an employee when the circumstances justify such actions. OPM does not question an agency’s decision to deny LQA unless the agency’s actions are determined to be arbitrary, capricious, or unreasonable. Since DA’s decision to deny LQA to the claimant was made in accordance with DSSR 031.11, DoDI 1400.25, Volume 1250, and AKR 690-10, its decision cannot be construed as being arbitrary, capricious, or unreasonable.
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.