U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein Air Base
Department of the Air Force
Ramstein, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/24/2021
Date
The claimant is a Federal civilian employee of the U.S. Air Forces, Europe (USAFE), Ramstein Air Base (AB), Department of the Air Force (AF), in Ramstein, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her request for a waiver to be granted living quarters allowance (LQA). We received the claim on February 1, 2021, and the agency administrative report (AAR) on March 31, 2021. For the reasons discussed herein, the claim is denied.
The claimant accompanied her military spouse to his permanent change of station (PCS) at Ramstein AB in September 2016. She was appointed into the Federal civilian service on April 8, 2019. Upon the appointment, the agency determined that as a locally hired employee, she was not eligible to receive LQA. In September 2020, her spouse was issued PCS orders to the U.S and the claimant decided to remain at her Federal position. During this time, it appears the claimant and her management requested she be granted a LQA waiver for up to one-year based on humanitarian reasons. On November 24, 2020, her family departed Germany and her agency issued a memorandum informing the claimant her waiver request was denied.
The claimant provided several assertions which she believes support granting her a LQA waiver. The claimant states her waiver request should have been forwarded to the major command for final approval, in accordance with AF guidance concerning LQA waivers for local personnel hired in overseas locations.[1] She states “[o]ther factors” that should be considered are the Coronavirus Disease 2019 (COVID-19) pandemic, which she states has affected “the DoD civilian hiring process” making it difficult to find employment in the U.S (e.g., a smaller number of Federal vacancies advertised and many agencies limiting their recruitment to “local hires to avoid PCS challenges associated” with the pandemic). She also states her Federal salary is inadequate and does not cover her overseas living expenses. The claimant further states her servicing civilian personnel office corrected her Federal hiring appointment placing her in the competitive service. She believes this correction authorizes her a household goods shipment when her overseas appointment ends. The claimant also states she was unable to retain furniture due to her hiring appointment error.
The claimant contends that she should receive LQA based on her interpretation of the Department of Defense Instruction (DoDI) NUMBER 1400.25 Volume 1250. She states she meets Encl 2, 2c(d)(e) because her spouse was issued PCS orders to the U.S., which required her family to leave Germany, no longer allowing them to maintain a common dwelling. She further states she meets Encl 2, 2c(2) because she entered Germany as the spouse of a sponsor eligible for military quarters allowance.
The claimant also asserts she meets the intent of U.S. Air Forces in Europe Instruction (USAFEI) 36-705, Benefits And Allowances For US Employees In USAFE, paragraph 3.2.3.2. She states she meets two of the requirements in the DoDI 1400.25-V1250, Encl 2, 2c, which lists the circumstances allowing the requirements of the Department of State Standardized Regulations (DSSR) section 031.12b be waived.
The agency maintains the claimant’s LQA waiver denial did not require major command approval because the request was denied. It states such approval is only needed if the request for LQA to a local hire is granted, which is unusual and requires an additional level of review to ensure all requirements are met. The agency determined that the COVID-19 factors provided by the claimant do not include a humanitarian reason to grant LQA. It also asserts that the housing market available to the German population is safe, clean, comfortable, and more reasonably priced than housing near Ramstein AB.
The agency asserts the claimant did not meet the eligibility requirements to receive LQA under the DoDI 1400.25-V1250 or USAFEI 36-705. In its administrative report to OPM, the agency states, in part:
Our agency upholds the denial of [the claimant’s] LQA grant and recommends the claim be denied. The determination process revealed that an LQA grant would be inappropriate and not necessary because circumstances do not meet the intent of the pertinent regulations: DoDI 1400.25 – V1250, Encl.2, 2.c. and USAFEI 36-0705 3.2.3.2. [The claimant’s] desire to stay overseas and pursue her career while her spouse goes back to the [Contiguous United States] CONUS was a strictly voluntary decision on her part, and in and of itself does not constitute a humanitarian reason to grant an LQA waiver. Other factors to justify humanitarian circumstances were not provided…
The DSSR[2] 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, a LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI 1400.25-V1250, USAFEI 36-705, 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:
- 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
- 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.
Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.
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 031.12b:
c. For a waiver of section 031.12b of Reference (c) to be approved:
(1) One of the following situations must have occurred.
(a) The sponsoring spouse or domestic partner dies.
(b) The sponsoring spouse or domestic partner becomes physically or mentally incapable of continued employment with the Government.
(c) The couple is divorced or legally separated, or a domestic partnership has been dissolved. (A legal separation is deemed to exist when either the employee or spouse has initiated legal action to dissolve the marriage or one separates from cohabitation short of applying for a divorce.)
(d) The sponsoring spouse or domestic partner left the post or area permanently.
(e) The spouses or domestic partners could not maintain a common dwelling due to the relocation of either spouse’s or domestic partner’s work place.
(2) In addition, in the situation described in subparagraph 2.c.(1)(a) through 2.c(1)(e) of this enclosure, the employee must have entered the country in which the foreign post is located as the spouse or domestic partner of a sponsor who was eligible for either military or civilian quarters allowance. In the situations portrayed in subparagraphs 2.c.(1)(c) through 2.c.(1)(e) of this enclosure, LQA shall be stopped should the couple remarry, reconciliation occur, or the sponsoring spouse or domestic partner returns to his or her post or commuting area whether or not the sponsoring spouse or domestic partner retains his or her eligibility for a quarters allowance. Waivers granted for the events in subparagraph 2.c.(1)(a) through 2.c(1)(e) of this enclosure shall last no longer than 1 year from the date eligibility is established, unless extended by the appropriate DoD Component delegate.
USAFEI 36-705, paragraph 3.2.3.2, used in connection with the provisions of DoDI 1400.25-V1250, Encl 2, 2c(d)(e), supplements the requirements for waiving DSSR 031.12b for humanitarian reasons. USAFEI 36-705, 3.2.3.2 states, in part:
DODI 1400.25 – V1250, Encl.2, 2.c. lists circumstances permitting the requirements of DSSR 031.12 b. to be waived for humanitarian reasons. When an employee meets one of the conditions identified in this paragraph neither the position-based nor the personal eligibility criteria are applicable and the [Civilian Personnel Officer] CPO may grant payment of LQA for up to one year under humanitarian considerations. Employees have to provide adequate documentation certifying the loss of family member status or that related legal action was initiated….
Several of the claimant’s assertions are unsupported. For example, she asserts the waiver request should have been forwarded to the major command for final approval. However, as the agency points out, such approval would have only been needed if her waiver request was granted, which would require further review to ensure all requirements were met. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. The claimant also listed factors to be considered concerning the COVID-19 pandemic and states her salary is inadequate to cover overseas expenses. However, she did not explain how these issues affect the granting of a waiver for humanitarian reasons.
As it relates to the claimant’s LQA eligibility, she meets section 031.12a of the DSSR because her presence in Germany is attributable to her employment with the AF. Section 031.12b covering employees recruited outside the United States requires that immediately prior to appointment, the employee must have been recruited in the U.S. by one of the enumerated entities and have been provided return transportation back to the United States. In other words, the employee must have been in "substantially continuous employment" with one of these entities overseas and under these conditions immediately prior to appointment to the position for which LQA is requested. The claimant has provided no documentation showing, nor does she assert, that she was employed overseas by one of the enumerated entities, which provided her with return transportation back to the U.S., prior to her appointment to the position in Ramstein, Germany. Thus, she has failed to demonstrate that she meets section 031.12b and on this basis alone is ineligible for LQA. Consequently, the claim is denied..
Although the claimant believes she meets the intent of the DoDI 1400.25-V1250 and USAFEI 36-705, supplemental requirements and agency implementing guidance are 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 the DoDI 1400.25-V1250 and USAFEI 36-705 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) and is also denied.
Lastly, the claimant states she was unable to retain furniture in Germany due to an agency error and that her only option was to rent a furnished apartment, which is expensive. However, OPM’s claims jurisdiction is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM’s compensation claims program does not include settlement of return transportation for household goods issues. Therefore, this request is beyond the scope of our claim adjudication authority and is also denied.
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 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.
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[1] The record shows the claimant believes this AF guidance supersedes U.S. Air Forces in Europe Instruction (USAFEI) 36-705. However, she provided no documentation showing this to be accurate. Therefore, we will apply USAFEI 36-705 in this decision.
[2] In her claim, the claimant provided a copy of certain DSSR sections. After carefully reviewing the highlighted portions of sections 132 and 134, we determined they are not relevant to the claim and will not be addressed.