Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Camp Humphreys, Republic of Korea
Ana A. Mazzi
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/14/2024
Date
The claimant is a Federal civilian employee of the U.S. Army Criminal Investigation Command, at Camp Humphreys, Republic of Korea. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA). We received the claim on April 21, 2023, and the agency administrative report on September 13, 2023. For reasons discussed herein, the claim is denied.
The record shows the claimant entered Okinawa, Japan, as the dependent spouse of a military member. While residing in Japan, the claimant applied for her current Criminal Investigator, GL-1811-09, position on April 12, 2022, and was tentatively selected for it on December 13, 2022. Prior to appointment, the agency determined the claimant was ineligible for LQA. She accepted the position without LQA and was appointed to it effective June 5, 2023. However, the claimant’s DD Form 1617, Department of Defense Transportation Agreement, identifies September 24, 2023, as her actual report date to the duty station. The Civilian Personnel Advisory Center in Fort Belvoir, Virginia, issued a final LQA determination by letter dated August 1, 2023, reiterating the claimant’s ineligibility for LQA based on criteria established for employees recruited outside the United States under section 031.12a and b of the Department of State Standardized Regulations (DSSR).
The DSSR contain 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, implements the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted under the DSSR.
The agency determined the claimant does not meet basic requirements under DSSR section 031.12, which states that LQA may be granted to employees recruited outside the United States provided that:
- 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
- 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; or
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.
The claimant contends she satisfies LQA eligibility requirements as she meets DSSR section 031.12a and c. Regarding DSSR section 031.12b, she states in her claim:
DSSR 031-12b does not apply – the language of the document includes “or” between 031-12b and 031-12c, which by definition only requires one of the conditions preceding or following to be met. Per the cited regulation, I cannot be denied LQA based solely upon item 031-12b.
Both DSSR section 031.12a and b must be met by employees recruited outside the United States (note the connector “and” between DSSR section 031.12a and b). In this case, the record shows the claimant’s presence in Korea can be attributed to her employment with the U.S. Army Criminal Investigation Command since presumably she had no other reason to be in Korea other than to work. Because her actual place of residence at the time of her appointment can be fairly attributed to her employment by the U.S. Government, she meets DSSR section 031.12a.
DSSR section 031.12b requires that immediately prior to appointment, the employee must have been recruited in the United States by one of the enumerated entities and have been provided return transportation back to the United States. The claimant, as indicated above, was recruited while overseas in Okinawa, thus she was not recruited in the United States. In addition, the claimant provided no documentation showing, nor does she assert, that prior to her appointment, she was employed overseas by one of the enumerated entities which provided return transportation back to the United States. She thus does not meet the employment conditions described in DSSR section 031.12b.
DSSR section 031.12c provides that subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action. Although she does not specifically seek waiver of DSSR section 031.12b in her claim to OPM, the claimant states that “031-12b is waiverable given sufficient justification.” Under section 3702 of title 31, United States Code (U.S.C.), OPM adjudicates compensation and leave claims brought by employees who seek to challenge pay or leave decisions made by their employing agency. However, OPM’s claims adjudication authority under 31 U.S.C. 3702 does not include the authority to waive provisions of the DSSR, which determine LQA eligibility. Since DSSR section 031.12c authorizes the head of the employee’s agency to waive the eligibility requirements of section 031.12b, OPM may not consider a claimant’s request for a waiver extension within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2). The authority to waive the requirements of DSSR section 031.12b is reserved to the head of the employing agency, and OPM will not review such determinations.
The claimant alternatively asserts LQA eligibility under provisions of DSSR section 031.12c. This provision is implemented in DoDI 1400.25, Enclosure 2, 2.g, which provides for the grant of LQA to employees required to move to another area as a condition of employment when the following questions in g.(1) through (3) are affirmed:
(1) Will employment be ended if the employee fails to accept relocation?
(2) Is the relocation caused by a management-generated action?
(3) Must management request an employee not now in receipt of LQA to relocate to another area?
Unlike the claimant’s situation, DSSR section 031.12c applies to existing Federal employees rather than new hires in both its language that the employees have been required by the agency to move “to another area” as opposed to, for example, the “initial duty station,” and that the move be “in cases specifically authorized by the head of agency.” The latter would apply, for instance, to base closures or transfers of function that are specifically authorized by agency heads, whereas such authorization is not required for routine Federal appointments. See OPM File Numbers 14-0016 and 15-0033.
The claimant asserts her agency’s denial of LQA is a substantial financial and emotional hardship. She also states the agency official who initially denied her LQA request signed as both first- and second-level reviewer, thus “defeating the intent for multiple levels of review.” Regardless, 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 31 U.S.C. 3702(a)(2). 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.
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 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. 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. 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.