U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Military Surface Deployment and Distribution
Command
Camp Arifjan, Kuwait
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/02/2025
Date
The claimant filed a claim with the U.S. Office of Personnel Management (OPM) while he was a Federal civilian employee of the 595th U.S. Army Transportation Brigade, Military Surface Deployment and Distribution Command, at Camp Arifjan, Kuwait. He requests OPM reconsider decisions made at that time by the Civilian Personnel Division of G1, Headquarters of United States Army Europe (hereafter referred to as “agency”) to deny requests associated with involuntary separate maintenance allowance (ISMA) on behalf of his children. We received the claim on August 17, 2022, and the agency administrative report (AAR) on January 22, 2025. For reasons discussed herein, the claim is denied.
Effective November 21, 2021, the claimant was reassigned to a Marine Cargo Specialist, GS-2161-11, position at Camp Arifjan, Kuwait, which is a post where accompanying family members are not authorized.[1]
The Department of State Standardized Regulations (DSSR) set forth basic eligibility criteria for the granting of a separate maintenance allowance (SMA) in section 260. DSSR section 261.2 describes the purpose of SMA as follows:
SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below [in section 262, one of which being where ISMA is authorized] to maintain a separate household for the family or a member of the family. [italics added]
The claimant initially requested ISMA for his two sons who could not accompany him on the restricted foreign post of assignment. In its April 29, 2022, decision, the agency denied the claimant’s request for ISMA under DSSR section 263 which describes several circumstances under which SMA is not warranted, including section 263.4, which prohibits the grant of ISMA “[w]hen a child’s legal custody is vested, in whole or in part, in a person other than the employee or the employee’s current spouse or domestic partner.” The agency concluded that because the claimant and mother of his two sons were divorced and shared custody, DSSR 263.4 prohibited it from approving ISMA on behalf of his two sons.
On April 29, 2022, the claimant requested ISMA from his agency on behalf of his two daughters. In its July 1, 2022, decision, the agency denied his request based on DSSR section 263.1, which states SMA is not warranted “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family.” The agency explains in its decision:
Since you did not make mention of your daughters in your request and they are in college, it was and still is, unclear to us whether or not they have resided with you in the same household or with their mother. If they have not resided with you previously, that is, immediately before your assignment to Kuwait, they could not be included in the grant of ISMA, even if we would have approved the request on behalf of your younger sons.
In its AAR to OPM, the agency further states:
Based on the information provided in this claim, albeit, rather nebulous, it appears that his daughters have not resided with him in the same household prior to his posting in Kuwait. As a result, his posting to Kuwait was not the proximate cause of the separation from his daughters but previously existed. Therefore, any expenses associated with the maintenance of their household, while at college or otherwise, existed prior to and independent of [claimant’s] assignment to Kuwait.
The intent of the regulations is clear. SMA may be granted only in those cases where the employee would otherwise be compelled to maintain a separate household for a family or family members and thus be burdened with assuming the additional expenses associated therewith. In this case, the claimant has failed to meet his burden of proving that he resided with his two daughters immediately prior to his reassignment to Kuwait.
Under section 178.105 of title 5, Code of Federal Regulations (CFR), the burden is upon the claimant to establish the liability of the United States, and his right to payment. The agency asserts that because he and the mother of his two sons share custody, DSSR 263.4 prohibited it from approving ISMA for his two sons; whereas it concludes DSSR 263.1 prohibited the allowance for his two daughters as he was residing separately from them prior to his reassignment to Kuwait. The record contains no direct evidence from the claimant to refute the agency’s conclusions. OPM will thus accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. Accordingly, his claim for ISMA is denied.
SMA is a discretionary allowance, not an entitlement. The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees. Thus, an agency may deny SMA payments 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 5 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). In this case, the claimant has failed to do so. Since an agency decision made in accordance with established regulations and within its discretionary authority 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.
[1] In its AAR to OPM, the agency explains that effective February 26, 2023, the claimant returned to his parent command at Scott Air Force Base, Illinois. He subsequently accepted employment with the U.S. Army Sustainment Command at Camp Arifjan, Kuwait, effective November 5, 2023. Under that assignment, the claimant requested ISMA on behalf of his children, which was also denied by the U.S. Army’s Civilian Human Resources Agency on January 30, 2024. However, this decision will only consider ISMA requests and supporting documents from his November 2021 reassignment to Kuwait.