Washington, DC

U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/17/2024

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Date

The claimant is a Federal civilian employee with the 52nd Fighter Wing, U.S. Air Forces, Europe (AFE), Spangdahlem Air Base (AB), U.S. Department of the Air Force (AF) in Spangdahlem, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA). We received the claimant’s request on April 11, 2023, and the agency administrative report (AAR) on April 24, 2023. For the reasons discussed herein, the claim is denied.

In August 2020, the claimant entered Germany as the dependent spouse of a military member. While residing in Germany, she applied for and was selected for the position of Work/Life Specialist, GS-0101-09 with the 52nd Force Support Squadron at Spangdahlem AB, Germany, and was appointed to the position effective March 14, 2021. Subsequently, she applied for and was selected for her current position of Community Support Coordinator, GS-0301-12 and was appointed to it effective September 11, 2022. On March 3, 2023, the claimant requested LQA to assist her with housing costs for one year to begin upon her spouse’s forthcoming military retirement in August 2024. She states that receiving LQA would give her spouse time to transition from active duty into retirement, as well as allow her to further her career for an additional year and give her children an extra year of stability. The agency determined the claimant ineligible for LQA under the provisions of the Department of State Standardized Regulations (DSSR) section 031.12, for employees recruited outside the United States. In a memorandum to the claimant dated March 21, 2023, the agency explains its decision as follows:

a. You currently do not meet this criterion [DSSR 031.12a] since you are in Germany as a military spouse on your husband’s order. You will meet this criterion if your husband retires from the military (August 2024), and you become the Sponsor.

b. You do not meet the criterion [DSSR 031.12b] because you were not recruited from the U.S. Your spouse’s military orders have a report no later than date of 31 August 2020. The Work/Life Specialist vacancy was not announced until 12-29 December 2020, and you have a Bitburg, Germany address listed as your residence on your resume. You were referred and selected to the position of Work/Life Specialist as a Military Spouse Preference candidate which is contingent on your residing in the local commuting area of Spangdahlem AB, Germany. You were selected and promoted to the position of Community Support Coordinator while still employed as the Work/Life Specialist, using your eligibility of being a military spouse, even though no longer having your military spouse preference.

6. The DSSR 031.12(c) permits the head of agency to determine unusual circumstances that may warrant approval of LQA for a local hire not already provided for in the DSSR. DoDI 1400.25v250 is the governing instruction which provides for exceptions. In order to be eligible for LQA one of the following must occur, 1) sponsoring spouse dies, 2) sponsoring spouse is physically or mentally incapable if continued employment, 3) the couple is legally separated or divorced, 4) sponsoring spouse left the post or area permanently, and/or 5) the couple cannot maintain a common dwelling. Additionally, the DoDI states that except for the circumstances described above, a waiver of section 031.12b shall not be made for a married employee who accompanied or followed his or her spouse to a foreign area and still resides with that spouse or domestic partner. Based on the information provided, you are not eligible for a waiver since you have stated that you and your spouse will be remaining in Germany upon his military retirement.

7. In consideration of your personal circumstance and applicable regulatory guidance, you are not eligible to receive LQA. IAW USAFE-AFA[F]RICAI36-105 if an employee is found to be personally ineligible all other considerations are irrelevant. Your request for LQA upon your husband’s military retirement is denied.

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, DoDI 1400.25, Volume 1250 implement the provisions of the DSSR for Department of Defense (DoD) employees but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental requirements of the Department of Defense Instruction (DoDI), United States Air Forces in Europe-Air Forces Africa Instruction (USAFE-AFAFRICAI), or other agency implementing guidance may be applied.

DSSR section 031.12, 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. [Italics added.]

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 agency.

Subsection 031.12(b) may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.

The agency does not consider the claimant’s actual place of residence (Germany) attributable to her Federal service employment with the AF, and asserts the claimant does not meet eligibility requirements under DSSR section 031.12(a). Rather, the agency states the claimant is in Germany as a military spouse on her husband’s orders, and will meet section 031.12(a) criterion if her husband retires from the military and she becomes the “Sponsor.” The claimant did not challenge the agency’s determination that her situation fails to meet the requirements in section 031.12(a). However, whether or not the claimant meets criteria in section 031.12(a) is immaterial to our claim determination unless she also meets all the requirements specified in section 031.12(b). In the claimant’s case, while she resided in Germany as a dependent of a military member, the claimant applied for, was selected for and appointed to her first Federal civilian service position as a Work/Life Specialist, GS-0101-09 at Spangdahlem AB, Germany.  Therefore, although, prior to her appointment to her current position, she had been in substantially continuous employment by one of the qualifying entities described in b(1) through b(4), such employer had not recruited her in the United States under conditions which provided for her return transportation to the United States. Therefore, the claimant does not meet the requirements of DSSR 031.12(b) for LQA eligibility. Consequently, her request for one year of LQA is denied.

We note the agency included discussions referencing supplemental agency instructions (i.e., USAFE-AFAFRICAI 36-105) in its agency decision and AAR to support denying the claimant LQA. However, as previously explained since DSSR requirements were not first met, supplemental agency instructions need not be applied and will not be addressed further.

DSSR section 031.12(c), clearly authorizes the head of the agency to waive LQA eligibility requirements described under subsection 031.12(b). Therefore, the authority to waive LQA eligibility requirements described under subsection 031.12(b), rests with the agency and OPM has no jurisdiction, within the context of the claims adjudication function it performs under 31 U.S.C. section 3702(a)(2). Although the claimant does not request a waiver of the requirements in subsection 031.12 (b), in its decision (previously described) and AAR submitted to OPM, the agency addresses the claimant’s ineligibility for a waiver under section 031.12(c), determining that she does not meet the conditions specified in DODI 1400.25 – V1250, Enclosure 2, permitting the requirements of DSSR 031.12(b) to be waived. However, since the authority to waive the requirements of DSSR section 031.12b is reserved to the head of the employing agency, OPM will not review such determinations.

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 title 5 Code of Federal Regulations (CFR) 178.105, 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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