Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Command
Department of the Army
Brussels, Belgium
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/01/2021
Date
The claimant is a Federal civilian employee of the U.S. Army Installation Management Command (IMCOM), Department of the Army (DA), in Brussels, Belgium. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her request for an eligibility waiver to be granted living quarters allowance (LQA). We received the claim on September 10, 2020, and the agency administrative report (AAR) on January 29, 2021. For the reasons discussed herein, the claim is denied.
The claimant arrived in Belgium in July 2012. In April 2014, she began working a non-appropriated fund (NAF) instrumentality position in Chievres, Belgium and continued such employment through July 22, 2017. On July 24, 2017, the claimant was appointed to her initial Federal appropriated fund DA position. Upon her appointment, the agency considered her LQA ineligible. On September 15, 2019, the claimant was reassigned to a different position in Brussels, Belgium. In a memorandum to her agency dated September 17, 2019, the claimant requested LQA and her management requested she be granted an LQA waiver in a memorandum dated September 19, 2019. Both requests allude to a “major organizational” action having occurred. On October 13, 2019, the claimant’s position was realigned based on HQDA General Orders No. 2019-13 reassigning IMCOM as a major subordinate command of U.S. Army Material Command (AMC). In an email dated May 14, 2020, the claimant was informed the agency determined her LQA ineligible, which the agency restated in their official response dated June 22, 2020.
The claimant contends that she should receive LQA based on her interpretation of Army in Europe Regulation (AER) 690-500.592, Civilian Personnel Overseas Allowances, paragraph 7f. She states, in part:
The request is based on the fact that I was management directed reassigned (MDR) as a result of a major organizational change. Army Community Services (ACS) moved out from under Army Family and Morale, Welfare and Recreation (FMWR) and realigned under the Directorate of Human Resources (DHR)…The realignment was initiated in February 2019 and in progress until completion on 30 July 2020, when the DHR took over management of ACS. I was relocated to another duty station in September 2019 by the DHR Director to which a Permanent Change of Station (PCS) move was made.
Upon receiving the denial of the request, I consulted with my supervisor and chain of command and confirmed that my move was indeed an MDR and the MDR was due to a major organizational change. The MDR was initiated by the director of the new organization (DHR) and not the former (MWR).
The agency asserts the claimant did not meet the eligibility requirements to receive LQA under the Department of Defense Instruction (DoDI) 1400.25-V1250 or AER 690-500.592. In its administrative report to OPM, the agency states, in part:
…Because of this action’s characterization as an MDR, [the claimant] requested to be granted LQA under the provisions of the Department of Defense Instruction (DODI) 1400.25-V1250, paragraph E2.2g. and h., and adopted by Army in Europe Regulation (AER) 690-500.592, paragraph 7.f. We denied her request based on the circumstance that her reassignment did not meet the additional stipulations imposed for the grant in AER 690-500.592…
The Department of State Standardized Regulations (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. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI 1400.25-V1250, AER 690-500.592, or other agency implementing guidance may be applied.
Section 031.12 of the DSSR provides the following guidance relative to employees recruited outside the United States:
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; or
c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of the agency.
DoDI 1400.25-V1250, which implements the provisions of the DSSR for DoD civilian employees, provides the following supplemental guidance relative to LQA and DSSR section 031.12c:
E2.2.g. The designated official shall determine whether or not an employee requires LQA under section 031.12c of Reference (c) when the assignment is within or between countries. Section 031.12c of Reference (c) provides that LQA may be given to an employee recruited outside the United States if, as a condition of employment by a Government agency, the employee was required by that agency to move to another area in cases specifically authorized by the head of the agency. A condition of employment, if not fulfilled, results in failure to gain or retain employment. Section 031.12c of Reference (c) shall be applied when an employee is relocated to another area by a management-generated action. It shall also be applied when management requests that an employee not now eligible for LQA relocate to another area. A management request that an employee relocate is considered a management-generated action. A move through a voluntary reassignment program is not considered a management-generated action. To make a determination under Section 031.12c of Reference (c), the following tests must be applied:
2.g.(1). Will employment be ended if the employee fails to accept relocation?
2.g.(2). Is the relocation caused by a management-generated action?
2.g.(3). Must management request an employee not now in receipt of LQA to relocate to another area?
E2.2.h. To grant an allowance under Section 031.12c of Reference (c) and its implementing guidance, the answer must be affirmative to questions in subparagraphs 2.g.(1) through 2.g.(3) of this enclosure Selecting a person to be relocated is based on regulatory guidance, leaving management little option to recruit a new employee or select an employee receiving LQA. There are also certain common sense considerations. If an employee’s new duty station is within the local area of work of the previously established residence, no LQA will be authorized. If the employee is joining a spouse or domestic partner at a new duty station who is eligible for LQA, the reassigned employee shall not be given the allowance. If the management-generated action would not cause employment to end if the employee fails to accept relocation, the DoD Component may approve LQA if a determination is made that there is no choice but to move the employee for official reasons (e.g., mobility is inherent in the functional area).
AER 690-500.592, paragraph 7f, used in connection with the provisions of DoDI 1400.25-V1250, E2.2.g. and E2.2.h., supplements the requirements for granting LQA under a management-directed reassignment (MDR). AER 690-500.592, 7f states, in part:
Generally, LQA under an MDR will not be granted. In extraordinary cases where an LQA-ineligible employee must relocate to another area under a management-generated action in accordance with DODI 1400.25, volume 1250, commands may request [Civilian Personnel Division] CPD approval in advance. The MDR must result from actions such as a major organizational move, a reduction in force, base transformation, or base closure, and never executed solely to extend LQA. In all cases, an actual [Permanent Change of Station] PCS move under Government travel orders must occur. The DOD [Joint Travel Regulation] JTR provisions on authorization and approval of PCS travel, including the distance test, must be met, and the employee’s new permanent residence must be located closer to the new duty location than to the duty station from which reassigned.
The claimant meets section 031.12a because her presence in Belgium is attributable to her employment with the DA. The DSSR makes clear that eligibility is established at the time of appointment, i.e., based on circumstances existing prior to the employee’s initial appointment to Federal service. However, prior to appointment, the claimant was employed in a NAF position. The NAF organization recruited her in 2014 from Belgium and there is no indication the NAF provided for her return transportation to the United States or its territories or possessions. As such, she lacks status as having been recruited in the United States or one of the enumerated territories or possessions as required by section 031.12. Thus, the claimant does not meet section 031.12b. Furthermore, the claimant does not meet DSSR section 031.12c because although she was reassigned and moved to another area, the action was neither a condition of employment nor specifically authorized by the head of the agency. Therefore, the claimant does not meet DSSR section 031.12 and on this basis alone is ineligible for LQA. Consequently, the claim is denied.
Although the claimant believes she meets the intent of AER 690-500.592, agency implementing guidance is only applied after an LQA applicant fully meets the relevant provisions of the DSSR. Therefore, since the claimant does not meet the requirements in DSSR section 031.12b, the provisions of AER 690-500.592 are inapplicable.
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 waive provisions of the DSSR, which determine LQA eligibility. The applicable regulation in this case, DSSR section 031.12c, authorizes the head of the employee’s agency to waive eligibility requirements. Therefore, OPM may not consider the claimant’s request for a waiver within the context of the claims adjudication function it performs under section 31 U.S.C. 3702(a)(2).
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 Code of Federal Regulations (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.
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.