Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Central Command
Kuwait City, Kuwait
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/06/2020
Date
The claimant is a Federal civilian employee of the Air Force Elements, U.S. Central Command in Kuwait City, Kuwait. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request for a voluntary separate maintenance allowance (VSMA) for her overseas tours. As a remedy, she states, “I am seeking $10,600 annually from 8 August 2019…to current.” We received the claim on September 10, 2020, and the agency administrative report (AAR) on October 5, 2020. For the reasons discussed herein, the claim is denied.
The claimant was appointed to a Program Analyst, GS-0343-13, position on a provisional basis , effective April 7, 2019. The agency explains in its AAR that her position was announced as either a 24-month accompanied tour or a 12-month unaccompanied tour, and that she accepted the latter tour length on her transportation agreement dated August 23, 2018. Officials of the Overseas Allowances Section, 86 Force Support Squadron, at Ramstein Air Base, Germany (hereinafter referred to as “agency”), provided allowance and other in-processing information to her via email. The claimant, in her June 26, 2019, reply to the email, stated that her spouse did not accompany her overseas “because of his work.” In addition, she states she provided agency officials with her Foreign Allowances Application, Grant and Report (SF-1190) on August 8, 2019, but received no response. The claimant’s initial tour subsequently ended on April 17, 2020, but she extended her overseas tour by 12 additional months. On June 29, 2020, the claimant requested a separate maintenance allowance (SMA) from the agency, identifying the basis of her request as follows:
…due to the “notably unhealthful” living conditions at my assigned location in Kuwait. My husband suffers from a chronic medical condition, for which he receives regular medical care, which can be severely exacerbated by the extreme temperatures and significantly reduced air quality compared to his current residence. It is for this reason that we elected not to have him accompany me on this assignment…
On July 8, 2020, the agency denied the claimant’s SMA request, stating her official request was not received until June 2020 and that “[r]etroactive approval is not possible because SMA will be started on the date of approval or the date an SF1190 is submitted, whichever is later.” The agency also states:
“[In accordance with] the 06 November 1997 AFPOA/DPM guidance memorandum, voluntary SMA may be granted for an employee’s initial tour only” ([U.S. Air Forces in Europe Instruction (USAFEI)] 36-705). You arrived in Kuwait on 18 Apr 19 and have served the complete initial 12 month tour already. Approval of SMA pursuant to the continuation of your assignment in Kuwait is not authorized.
In its AAR, the agency further explains:
Our office typically approves SMA in instances where, for example, children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. In her claim to OPM, [the claimant] stated that her request was submitted on 26 Jun 2019…The “request” in fact was an email, which stated the family separation was due to her husband’s work requirements. This is not considered a compelling reason, but rather a personal choice. We were not aware of any medical issues until we received her formal request on 29 Jun 2020. At this point in time her initial 12 month tour had already been served and she was serving a 12 month tour extension.
The Overseas Differentials and Allowances Act, as amended and codified in Section 5921 – 5928 of title 5, United States Code (U.S.C.), provides that, under regulations prescribed by the President, a SMA may be paid to Federal employees in foreign areas. Section 5924(3) of 5 U.S.C. states that SMA may be granted to assist an employee who is compelled or authorized, because of dangerous, notably unhealthy, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because of special needs or hardship involving the employee or the employee’s spouse or dependents, to meet the additional expenses of maintaining, elsewhere than at the post, the employee’s spouse or dependents, or both.
By Executive Order, the President delegated this authority to the Secretary of State, who issues the Department of State Standardized Regulations (DSSR) governing overseas allowances and differentials. The DSSR further delegates the authority to grant SMA to the heads of Federal agencies. Section 262 of the DSSR states:
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…
Section 262.2 of the DSSR further describes VSMA, in relevant part, as follows:
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…
SMA is a discretionary allowance, not an entitlement. The language applying to SMA in 5 U.S.C. 5924 is permissive rather than mandatory, and the language in the DSSR is similarly permissive. By 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. Under 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.
We note that because SMA is a discretionary allowance, agency implementing guidance such as the USAFEI 36-705 may be more restrictive, but not more permissive, than the DSSR, i.e., they may impose additional limitations on the granting of SMA but may not extend benefits that are not otherwise permitted by the DSSR. OPM applies agency-developed policies to the extent such guidance is in agreement with the DSSR. Here, the agency has not abused its authority in implementing further guidance concerning SMA and limiting its grant to an employee’s initial tour only. Therefore, we find no reason to disturb the agency’s decision that the claimant was ineligible for a SMA after her initial tour ended on April 17, 2020.
The agency asserts that it approves SMA in instances where children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. There is no documentation from her initial tour between April 18, 2019, to April 17, 2020, indicating the claimant raised the issue of her spouse’s medical condition as the reason for the family separating during her initial overseas tour. Instead, she identifies her spouse’s work situation as the reason for his not accompanying her overseas in her June 2019 email to the agency. The agency is clear that it denies SMA in cases where no compelling reason or hardship exists beyond the employee’s control. Consistent with that practice, the agency denied the claimant’s SMA request as no compelling hardship during her initial tour was established. Where an agency decision is consistent with their established practice in similar situations, 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’s decision to deny VSMA and the claim request is denied.
The claimant asserts the agency failed to respond to her June 2019 email and SF-1190 request in August 2019, but she does not explain why she believes her eligibility for the allowance would have changed had the agency responded to her email and request at the time. In support of her request, she also characterizes her agency as untimely and unresponsive to her various requests for allowance-related information. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot estop the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, allegations regarding the agency’s failure to act on her SF-1190 and other requests regarding SMA do not confer eligibility not otherwise permitted by statute or its implementing regulations.
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.