Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Kaiserslautern
U.S. Department of the Army
Bonn, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/18/2022
Date
The claimant is a Federal civilian employee of the 21st Theater Sustainment Command (TSC), Kaiserslautern, U.S. Department of the Army, in Bonn, Germany. He requests that the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his Voluntary Separation Maintenance Allowance (VSMA) and waive the VSMA eligibility requirements described in the Department of State Standardized Regulations (DSSR) section 263.7, for the period November 21, 2021, through June 20, 2022. We received the claim request on December 9, 2021, and the agency administrative report on February 22, 2022. For the reasons discussed herein, the claim is denied.
Prior to entering on duty (EOD) in his current position with the 21st TSC on November 21, 2021, the claimant worked as a civilian employee with Army’s U.S. Africa Command in Stuttgart, Germany and maintained a residence in nearby Aichtal, Germany with his wife and three children. The claimant accepted a job offer for his current position with 21st TSC on September 10, 2021. On or about that time, he requested VSMA benefits so that he could establish a new residence in Bonn, while simultaneously maintaining his old residence in Aichtal until his oldest daughter completed her senior year in high school.
In its November 5, 2021, memorandum, the agency explained that, although DSSR section 262.2, and Army in Europe Regulation (AER) 690-500.592 12.c.(2)(a) provide support for the claimant’s request for VSMA benefits, he did not meet the 300-mile one-way road mileage threshold provided in DSSR section 263.7. Specifically, the agency states:
…While the DSSR [section] 262.2 and adopted by AER 690-500.592, paragraph 12.c.(2)(a), the latter of which implementing the former and providing that VSMA may be approved for the duration of the entire school year if a child is a high-school senior, the DSSR [section] 263.7., explicitly prohibits the grant of the allowance “[w]hen the member [or members] of family on Voluntary SMA is [are] residing within the same country or within 300 miles (one-way road mileage) from the employee.” Based on the information available, Mr. Munson and his family currently reside in Aichtal, near Stuttgart, which is separated from Bonn, his future posting, by 368 kilometers or 229 miles. Thus, Mr. Munson’s assignment in Bonn with the 21st TSC is below the threshold imposed by the DSSR for the grant of the allowance; as a result, we are unable to approve his request…
The claimant does not disagree with the agency’s determination that he does not meet the basic eligibility requirements for the receipt of VSMA benefits.
Nevertheless, because of the limited educational options for American students near his position in Bonn, and the time-consuming 229 miles one-way daily commute his daughter would be required to undertake to complete her high school career in Aichtal, the claimant requests OPM waive the required 300-mile threshold for one-way road mileage provided in DSSR section 263.7 and grant him VSMA benefits for the seven-month period between the time he EOD’d with the 21st TSC and his daughter’s graduation during which he and his family would need to maintain two households, stating:
…I request waiver of DSSR section 263.7 which prohibits grant of VSMA due to distance between duty location and residence. I make this request for the short period of seven months, so I am not unduly burdened by the maintenance of two households in order to allow my daughter to graduate from high school…
…My oldest daughter is finishing an American high school Curriculum. The only international school in Bonn is the Bonn International School, which has an International Baccalaureate Curriculum, not compatible with my daughter’s program. I do not have a choice to move my daughter to Bonn this late in her high school career…
…Bonn is not within reasonable, daily commuting distance of Aichtal. The attached denial letter [agency’s November 5, 2021, memorandum] states that the distance is 229 miles… Whether this is seen as “reasonable” in distance is questionable, but with the heavy traffic volume on the German Autobahn, one can expect that a one-way trip is at least four hours, if not more…
The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas, including VSMA.
Section 262.2 of the DSSR states:
…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 as defined at DSSR 040m. Dependent children, including sisters and brothers, must be under age 18 or incapable of self-support, unless they are attending secondary school (i.e., grades 9-12)…
Section 263.7 of the DSSR states, in relative part, that VSMA is not warranted when:
…the member of family on VSMA is residing within the same country or within 300 miles (one-way road mileage) from the employee…
AER 690-500.592, paragraph 12.c.(2)(a), provides additional guidance for implementing the provisions of the DSSR with regard to VSMA. It states, in relevant part, that temporary quarters subsistence allowances may be granted for:
… Short-term transitional situations based on a child’s school attendance at the time of the employee’s transfer. These requests generally may be approved for a duration necessary to complete a semester. If the child is a high-school senior, voluntary SMA may be approved for the entire school year…
Overseas allowances are not automatic salary supplements, nor are they entitlements. A claimant must fully meet all relevant provisions of the DSSR to be eligible to receive VSMA benefits. Because VSMA is a discretionary allowance, implementing regulations, such as the AER, may be more restrictive, but not more permissive, than the DSSR, i.e., it may impose additional limitations on the granting of VSMA but may not extend benefits that are not otherwise permitted by the DSSR.
The claimant meets DSSR section 262.2 and AER 690-500.592, paragraph 12.c.(2)(a), in that he is experiencing short-term transitional hardships associated with his need to live near his new duty station in Bonn, Germany while his oldest daughter completes high school in Aichtal German, which is the only school in the area with an American curriculum.
However, because the driving distance between Bonn and Aichtal is 229 miles, the claimant does not meet the 300 miles (one-way road mileage) threshold provided in DSSR section 263.7. Therefore, the basic requirements for granting VSMA are not met, and the claim is denied.
Nevertheless, the claimant requests that OPM waive the basic required mileage threshold for VSMA provided in DSSR section 263.7, so that he may receive VSMA benefits.
OPM adjudicates compensation claims for certain Federal employees under authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in section 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 VSMA eligibility. Therefore, the request for waiver of the one-way road mileage threshold provided in DSSR 263.7, is also denied.
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.