Washington, D.C
U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code
Joint Activities
Stuttgart, Germany
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/28/2023
Date
The claimant is a Federal civilian employee of the United States Africa Command, Joint Activities, in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of his request for living quarters allowance (LQA). We received the claim on September 12, 2022, and the agency administrative report (AAR) on January 4, 2023. For reasons discussed herein, the claim is denied.
The claimant’s employment history, as it relates to this claim, is described in the AAR OPM received from the claimant’s current employing agency. The claimant occupied a number of Federal positions for which he was not eligible to receive LQA. On August 31, 2020, he was appointed to a Store Associate, GS-1101-04, position with the Defense Commissary Agency in Hohenfels, Germany. This position did not meet the minimum grade level of GS-09 imposed by the Army in Europe Regulation (AER) 690-500.592, paragraph 7.a.(1), for the grant of LQA to employees recruited in the United States. Nevertheless, the claimant accepted the position of Store Associate without LQA. On December 6, 2020, he transferred to a Postal Operations Assistant, GS-0303-05, position with the U.S. Army in Grafenwoehr, Germany, and he was subsequently promoted to the GS-06 grade level on December 5, 2021. The claimant did not seek LQA until he was selected for his current position as Defense Travel Administrator, GS-0501-09. Standard Form 50, dated March 13, 2022, identifies the nature of action as “Conv to Term Appointment NTE 12-MAR-2025.”
The agency denied the claimant’s request for LQA in connection with his current position in its July 15, 2022, memorandum, stating:
Eligibility for the allowance under the [Department of State Standardized Regulations (DSSR)], the [Department of Defense (DOD)] guidance, and/or the locally developed guidance, here, the AER 690-500.592, is established at the time of the initial appointment to a position in the overseas area, and not when a situation in the professional career of the employee occurs, such as a promotion, that would favorably consider the grant of LQA…Once determined ineligible for the allowance at the time of the initial appointment, an employee continues to be ineligible as long as he/she is employed with that Agency in the overseas area.
The DSSR contains 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. Thus, the Department of Defense Instruction (DoDI) 1400.25, Volume 1250, and AER 690-500.592 may impose additional requirements to further restrict LQA eligibility but may not exceed the scope of the DSSR.
The claimant does not challenge the agency’s decision regarding his ineligibility for LQA associated with his previous Federal positions. However, he seeks LQA for his current position. DoDI 1400.25-V1250 specifies that 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 the foreign area, that inducement is normally unnecessary. In keeping with the stated purpose of LQA as a recruitment incentive, LQA eligibility is established at the time of initial appointment to the Federal service. This is based on the DSSR, which set forth basic eligibility criteria for granting LQAs. Therefore, any subsequent position changes (e.g., promotions, transfers, and reassignments) are not “appointments” but rather internal placements occurring within the context of that initial overseas appointment. In other words, LQA may only be conferred at the time of appointment if eligibility requirements are met and if the agency has offered it as a recruitment incentive for the position. Since any subsequent position held by the claimant after his August 31, 2020, appointment does not constitute his initial appointment to Federal service, it may not be considered for LQA eligibility purposes. See OPM File Numbers 10-0043, 12-0038, 15-0018, 16-0049, and 21-0007.
In his claim to OPM, the claimant states, “Every day the [DOD] writes policies and bends and shape regulations to get the desired outcome that it is seeking, today I am asking that the policy bends in my direction to get the [desired] outcome I am seeking.” Although he provides no explanation of his disagreement with the agency’s denial of LQA for his current position, the claimant states its decision was based on “outdated policy” because it fails to consider factors such as the diverse cost-of-living expenses of various European locations, increased mission responsibilities, the applicant pool, etc. Nevertheless, the governing regulations and implementing instructions for LQA do not allow for consideration of such factors. OPM adjudicates compensation and leave claims for Federal employees under section 3702(a)(2) of title 31, United States Code. 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. OPM has no authority to confer a benefit not permitted by law, regulation, or agency policy. 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. 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. Accordingly, the claim for LQA is 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.