Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Air Forces, Europe
Ramstein Air Base, Germany
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/17/2024
Date
The claimant is a Federal civilian employee of the 86 Force Support Squadron, U.S. Air Forces, Europe, at Ramstein Air Base, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her employing agency’s decision to temporarily suspend her post allowance (PA) grant during a period of absence from the overseas post. We received the claim on January 20, 2023, and the agency administrative report on March 9, 2023. For reasons discussed herein, the claim is denied.
The claimant was on leave in the United States, which the record shows was initially scheduled from August 18, 2022, to September 16, 2022. However, the claimant was injured in the United States on September 14, 2022, requiring medical care and resulting in her inability to return to the overseas post on the originally scheduled return date. The agency subsequently advised her that her PA grant would be suspended after 30 days of absence from the country of assignment. In a November 3, 2022, memorandum, the Civilian Personnel Officer for the 86 Airlift Wing, U.S. Department of the Air Force, in addition to advising her of the grant’s suspension, explains:
The governing regulation does not provide flexibility in continuing the allowance beyond 30 days of temporary absence as stated in the Department of State Standardized Regulations (DSSR) para. 225.2.a.
The agency terminated the claimant’s PA grant effective November 4, 2022, and reinstated it on December 29, 2022, i.e., the date of her return to Germany.
The DSSR contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Relevant to the claimant’s situation is DSSR Section 225.2, Employee With Family, which states in part:
The [PA] grant to an employee with family continues at the appropriate family size rate:
a. while the employee and all members of the family are outside the country of assignment for short periods of absences (up to 30 consecutive calendar days) unless the officer designated to authorize allowances determines that the grant should not continue. On the 31st day of absence the grant is to be terminated… [italics added]
Also germane to the claimant’s situation is DSSR Section 223.2, Upon Return to Post, which states:
The [PA] grant to an employee whose allowance was discontinued during a period of absence shall begin as of the date of return to the post, or as of the date of return of the family if they precede him/her to the post after such period of absence.
Because DSSR Section 225.2 states that the PA grant “is to be terminated” on the 31st day of an employee’s absence from the country of assignment, the governing regulation provides no flexibility for continuance of the allowance beyond a short period of absence, established here by regulation as no more than 30 consecutive calendar days. Based on the plain language of DSSR Section 225.2 in concert with DSSR Section 223.2, we conclude the claimant’s PA was properly terminated due to her departure from the overseas area for more than 30 consecutive calendar days and then resumed upon her return to Germany in accordance with regulations.
The claimant does not state any disagreements with the agency’s interpretation of the DSSR but she asserts in her claim to OPM:
My appeal is for consideration that my injury was due to circumstances beyond my control and if I was employed Stateside, I would not have been penalized and lost my [cost-of-living adjustment] due to my incapacitation and being in sick leave status wherever my recovery may have been. While I understand some of the reasons for suspending [PA]; I would like to argue that there should be room for extenuating circumstances such as mine.
The claims adjudication authority of OPM under section 3702(a)(2) of title 31, United States Code, is limited to determining if an agency has properly interpreted and applied applicable statutes and regulations in determining the compensation for which an employee may be eligible or entitled. This authority does not allow OPM to consider issues of equity or fairness. Furthermore, based on plain language in the DSSR, we conclude there is no authority to consider extenuating circumstances such as those described by the claimant in order to arrive at a favorable outcome.
The regulatory language under DSSR Section 013 is permissive and gives agency heads considerable discretion in determining whether to grant PAs to agency employees. Thus, an agency may withhold PA 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. 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 lost payment from suspension of the PA grant 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.