Washington. DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein Air Base, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/11/2022
Date
The claimant is a Federal civilian employee of the U.S. Air Forces, Europe, at Ramstein Air Base (AB), Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA). We received the claim on November 29, 2021, and the agency administrative report (AAR) on January 25, 2022. For reasons discussed herein, the claim is denied.
While employed as a Federal civilian employee with 96 Civil Engineer Group at Eglin Air Force Base, Florida, the claimant requested and was granted Leave Without Pay until January 31, 2022, in order to accompany her spouse, also a Federal civilian employee, to his duty station at Spangdahlem AB, Germany. She arrived in the overseas area on February 1, 2021. While residing in Germany, the claimant applied and was selected for her current Program Analyst, GS-0343-11, position, and an entrance on duty date of December 5, 2021, was set. Prior to appointment, the agency determined the claimant was ineligible for LQA.
In the AAR to OPM, the agency explains its reason for determining the claimant ineligible for LQA as follows:
The determination process revealed that the LQA could not be authorized [in accordance with] [Department of State Standardized Regulations (DSSR)] 031.12 as a non-stateside hire, because [the claimant] came to Spangdahlem, Germany as a dependent on her spouse’s civilian orders and she has no transportation entitlement of her own back to the U.S. as required. She is also not eligible for LQA [in accordance with] DSSR 031.11 as a stateside hire because she was physically located in Germany during the hiring process.
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.
In the claimant’s situation, no one disputes she was in Germany throughout the entire recruitment process. The agency, however, determined she did not meet basic requirements under section 031.12 of the DSSR, which states that LQA may be granted to employees recruited outside the United States provided that:
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…
The claimant does not directly respond to the agency’s determination that her situation fails to meet DSSR section 031.12. The record shows no dispute that she accompanied her spouse overseas because of his employment. Nevertheless, her overseas presence can be attributed to her employment with the U.S. Air Forces since presumably she had no other reason to be at Ramstein AB other than to work. The claimant’s actual place of residence at the time of her appointment can be fairly attributed to her employment by the U.S. Government, and she thus meets DSSR section 031.12a.
However, DSSR section 031.12b must also be met by employees recruited outside the United States, i.e., it requires that immediately prior to appointment, the employee must have been recruited in the United States by one of the enumerated entities and have been provided return transportation back to the United States. The claimant provided no documentation showing, nor does she assert, that prior to her appointment, she was employed overseas by one of the enumerated entities which provided return transportation back to the United States. She thus cannot be considered to have been recruited outside the United States for purposes of DSSR section 031.12b because she does not meet the employment conditions it describes. Therefore, the claim for LQA is denied.
In the claim request to OPM, the Commander of the 603D Air Operations Center at Ramstein AB requests the LQA grant on the claimant’s behalf, stating that its denial “will significantly impact her ability to acquire safe and substantial quarters for her new assignment.” OPM adjudicates compensation and leave claims for Federal employees under section 3702(a)(2) of title 31, United States Code (U.S.C.). This authority is narrow and limited to consideration of whether monies are owed the claimant for the stated claim under the applicable statute and implementing regulations. The scope of OPM’s authority under 31 U.S.C. 3702(a)(2) does not extend to consideration of claims on the basis of hardships related to securing suitable quarters.
Pursuant to DoDI 1400.25, 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). 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.