Washington, DC

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

---

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


09/10/2019

---

Date

The claimant is a Federal civilian employee of the U.S Air Forces, Europe, Ramstein Air Base (AB), Department of the Air Force (AF), in Ramstein, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of a living quarters allowance (LQA) grant. We received the claim on January 28, 2019, and the agency administrative report (AAR) on May 3, 2019. For the reasons discussed herein, the claim is denied.

The claimant was employed as a contractor for private companies Analytic Services Inc. (ANSER) and Dynamis Inc. (DYNAMIS) from August 13, 2013, to July 26, 2016, and July 27, 2016, to September 30, 2018, respectively at Ramstein AB in Germany. ANSER and DYNAMIS were subcontractors supporting the private company Science Applications International Corporation (SAIC), the primary contractor under a Task Order with the United States government. During his employment with DYNAMIS, the claimant applied for his current Federal position of Treaty Compliance Officer, GS-301-13, and was appointed to the position, effective October 1, 2018. Prior to appointment, the agency determined the claimant was ineligible for LQA. In a memorandum, dated August 21, 2018, the agency informed the claimant that he did not meet eligibility requirements as stated in the Department of State Standardized Regulations (DSSR), section 031.12, because of his employment with two different companies after arriving overseas. The claimant challenges the agency decision and "[doesn’t] believe the spirit and intent of the ‘singular’ employment condition…meant to deny LQA eligibility for employees like [him]." He states "at no time during my overseas assignment at Ramstein AB, Germany have I changed jobs instead only the subcontractor (ANSER and DYNAMIS) have changed under the primary contractor SAIC."

The 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 implements the provisions of the DSSR but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR.

LQA may be granted to employees recruited outside the United States, as stated in DSSR section 031.12, in relevant part, under the following circumstances:

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. [Italics added.]

The claimant meets eligibility requirements under section 031.12a because his residence in Germany to which LQA would apply appears attributable to his employment with the AF.

Section 031.12b allows LQA eligibility in those instances where the employee, prior to appointment, had substantially continuous employment with one of the entities listed under b(1) through b(4), and which entity (i.e., the singular usage of "such employer") recruited the employee in and provided return transportation to the United States or its territories or possessions. By extension, an employee who has had more than one "employer" overseas prior to Federal appointment would be disqualified because the initial overseas employer rather than the employer immediately preceding appointment would have recruited the employee in the United States.

The record includes a letter dated, August 29, 2018, from SAIC, stating in part the following:

[Claimant] has perform [sic] his duties at the USAFE [U.S. Air Forces, Europe] Arms Control Office located at Ramstein AB, Germany from 13 August 2013 to present… [Claimant] has been an indirect employee of SAIC as the primary contractor with the United States government…At no time during his overseas assignment at Ramstein AB, Germany has [claimant] changed jobs; only the subcontractor has changed under the primary contractor, SAIC.

The SAIC letter reveals that the claimant was an "indirect" employee of SAIC. This language makes evident that the claimant was a direct employee of subcontractors ANSER and DYNAMIS. OPM has consistently recognized employment of this nature as constituting two separate employers for purposes of LQA eligibility under DSSR section 031.12b.　 See OPM File number 18-0036, June 20, 2019.　 Because the claimant was employed by ANSER then DYNAMIS prior to Federal appointment, he does not meet the requirements of DSSR 031.12(b), and is not eligible to receive quarters allowance under this section.

We also note the claimant offers no evidence that he was in substantially continuous employment under conditions which provided for his return transportation to the United States or its territories or possessions. There is no documentation in the claim record establishing that either ANSER or DYNAMIS, at the time of hire, provided him return transportation benefits to the United States, its territories or possessions. Therefore, it is unknown what return transportation benefits, if any, may have been afforded the claimant by either company. For the reasons stated above, the claim is denied.

The DoDI 1400.25 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area. If a person is already living in a foreign area, that inducement is normally unnecessary. 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 may withhold LQA payments from an employee 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 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). As discussed previously, the claimant has failed to do so. 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.

In his claim request, the claimant states "…if [OPM is] unable to grant my relief based on aforementioned reasoning…I request…a possible exception to policy." However, OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.).  The authority in 31 U.S.C. § 3702(a)(2) is narrow and limited to determining if monies are owed the claimant under the controlling statutes or regulations.　 Section 3702 does not include the authority to grant exception to any provisions of regulation, such as the DSSR. Therefore, this request is also 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.

Back to Top