Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Grafenwoehr, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/08/2020
Date
The claimant is a Federal civilian employee of the 7th Army Training Command, Department of the Army (DA), in Grafenwoehr, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for an exception to Army in Europe’s policy concerning living quarters allowance (LQA) for a residence located outside reasonable proximity to the post of assignment. We received the claim on June 25, 2019, the agency administrative report (AAR) on September 25, 2019, and comments to the AAR on October 24, 2019. For the reasons discussed herein, the claim is denied.
While residing in the United States in 2017, the claimant and his spouse had personally owned quarters (POQ) built in Spenge, Northrhine-Westphalia, Germany (Spenge). In 2018, while still residing in the U.S., the claimant applied and was selected for a DA Federal service position in Grafenwoehr, Germany. On June 10, 2018, the claimant was appointed to the position as a Training Support Specialist. He was determined eligible for LQA under the provisions of the Department of State Standardized Regulations (DSSR) section 031.11, as an employee recruited in the United States. Shortly after in-processing, the claimant received temporary duty orders for an assignment in Poland. In November 2018, the claimant’s spouse moved into the POQ in Spenge to, as the claimant describes, take care of her ailing father. When the claimant requested to use the LQA for the POQ in Spenge, which is a significant distance away from his post of assignment in Grafenwoehr, the agency denied him the grant of LQA. In denying the request, the agency pointed to an Army in Europe Regulation (AER) which provides that quarters allowance may be paid to an employee only for a permanent residence that is within reasonable proximity to the post of assignment.
In a March 21, 2019, memorandum to the servicing civilian personnel office the claimant’s supervisor requested the claimant be granted a waiver to receive LQA for quarters outside the authorized proximity to his official workstation, in part, as follows:
I am requesting that the standard reasonable proximity radius to the post of assignment be waived for [the claimant], under the provisions of paragraph 8. Waiver, Army in Europe Regulation 690-500.592, [Department of Defense Instruction] DODI 1400.25, volume 1250, lists “The inability to maintain a common dwelling because of the relocation of either the spouse’s or the domestic partner’s workplace” as an unusual circumstance which can be waived under the regulations. Under this statue, (sic) I am requesting the [claimant] be granted a waiver so that his wife can live near her gravely ill father.
On May 3, 2019, the Civilian Personnel Directorate, G1, HQ United States Army, Europe (USAEUR), denied the request, stating:
[Claimant’s] request for an exception to policy, which he believes to be extraordinary, is base(sic) on the circumstance that his current position requires him to travel about 80% of the time in various countries in support of the training mission. In addition, his wife’s elderly…and ill father requires his daughter to live near him in order to assist with daily activities. While it is commendable that [claimant spouse] wishes to be near her father and that [claimant] took up an assignment that requires him to be on the road for an extended period of time, we do not share his sentiment that his case is extraordinary, and thus find that we are unable to authorize an exception to policy. What is more, the LQA grant, among other factors, is based on the official post of assignment and not the area or city where the residence is located.
The agency’s denial further states:
…his request is chiefly for reasons unrelated to his professional assignment in Germany. This is evident by the circumstance that [claimant], even while still assigned to a posting in the United States, made arrangements to have a house constructed for the eventual return to Germany. The grant of LQA to eligible employees is designed to cover substantially all of the average expenses for rent and utilities associated with a dwelling at the post of assignment. It is not designed for employees to receive the allowance for quarters so far away from their post of assignment whereby the distance between their residence for which LQA is granted and the workplace cannot be safely overcome, in this instance, not at all because of the great distance.
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, the Department of Defense Instruction (DoDI) 1400.25, Volume 1250, dated February 23, 2012, implements the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI, AER, or other agency implementing guidance may be applied.
There is no dispute the claimant is eligible for LQA under DSSR section 031.11, wherein LQA may be granted to employees recruited in the United States by the employing agency. However, section 013 of the DSSR allows heads of agencies to issue further implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments. [Italics added.]
Thus, within the scope of DSSR regulations, an agency may, as done here, issue further implementing instructions for the guidance of its agency with regards to the granting of LQA payments. Because LQA is a discretionary allowance, agency implementing regulations and/or policy may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA. Thus, OPM applies agency-developed policies to the extent such guidance is in agreement with the DSSR.
The policy in paragraph 11.a of Army in Europe Regulation (AER) 690-500.592, dated September 6, 2018, states in relevant part:
Quarters allowance may be paid to an employee only for a permanent residence that is within reasonable proximity to the post of assignment (glossary). [Italics added.]
The glossary in the AER defines “reasonable proximity to post of assignment” as follows:
For purposes of this regulation, the reasonable proximity to the post of assignment is within a radius of the post of assignment that spans about 50 miles or 80 kilometers. Requests for exception to this residence requirement in extraordinary cases, such as medical requirements of Family members, may be submitted to the Civilian Personnel Directorate, Office of the Deputy Chief of Staff, G1, HQ USAREUR, for consideration.
The claimant acknowledges that his residence is located outside the 50-mile radius of the post of assignment and thus in conflict with provisions of AER 690-500.592 for the grant of LQA. Nevertheless, he believes that his situation constitutes an unusual circumstance warranting an exception to the policy. The DoDI 1400.25, volume 1250, lists unusual circumstances under which the requirements of DSSR 031.12(b) may be waived. One of the unusual circumstances is “The inability to maintain a common dwelling because of the relocation of either the spouse’s or the domestic partner’s workplace.”[1]
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.). However, 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 waive agency policy. OPM does not consider the claimant’s request for an exception to policy within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2). Therefore, OPM is without authority to grant the request for an exception to agency policy. Furthermore, we conclude the agency has not violated its authority in implementing further restrictions concerning the grant of LQA. In fact, in its AAR to OPM, the agency states, “When [claimant] requested to utilize the LQA for quarters that are a significant distance away from his post of assignment, the agency denied him the grant of LQA for that purpose; however, at the same time, advised him that the LQA may be used for quarters closer to his posting.” Accordingly, we find no reason to disturb the agency’s decision to deny the claimant’s LQA request based on provisions of AER 690-500.592 for LQA associated with a residence located outside reasonable proximity to the post of assignment.
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. 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 section 178.105 of title 5, Code of Federal Regulations, 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.
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.
[1]We note that the waiver authority in the DoDI referenced by the claimant only applies to individuals who are not eligible for LQA under the provisions of the DSSR section 031.12 (employees recruited outside the United States). It does not apply to employees who are eligible for LQA under the provisions of the DSSR 031.11 (employees recruited in the United States). Thus, the provision is inapplicable to the claimant’s hiring circumstances.