Washington, DC

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

---

Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance


04/03/2025

---

Date

The claimant is a Federal civilian employee of the Supply Chain Management section, Logistics Department, Director of RM, Army Comm Hospital, Irwin, DHA Small Stand-Alone Market, Defense Health Agency, U.S. Department of the Army (Army), Fort Riley, Kansas. Although not specifically stated in his request, it seems that the claimant requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of retroactive Involuntary Separate Maintenance Allowance (ISMA) for the period from June 29, 2021, through July 28, 2022, and the period from April 24, 2022, through May 21, 2023, during which the claimant served as a Logistics Management Specialist GS-0346-13, with the Army’s 401^st Field Support Brigade in Iraq, and with the HQS Forward, 408^th Contracting Support Brigade, U.S. Army Contracting Command, at Camp Arifjan, Kuwait, respectively. We received the claim on March 25, 2024, and the agency administrative report (AAR) on September 23, 2024. For the reasons discussed herein, the claim is denied.

The claimant asserts that he should receive retroactive ISMA during his overseas assignment with the 401st Army Field Support Brigade in Iraq, because the delays which resulted in the denial of his request were the agency’s fault. In his OPM claim he states, in relevant part:

I arrived on 13 July 21 in Kuwait and in processed through S-1 401^st AFSB. I filled up all the in-processing documents including the SMA. After 3 months, I decided to ask the status of my SMA through S-1 401^st AFSB but was told that still in processed and was told that due to COVID-19, [t]here was a delayed paperwork for the whole Army which I understand and do keep asking every month but they always telling me that it was processed through (CHRA) Overseas Benefits Branch.

They denied my SMA claim due to did not submit the request in a timely manner, but they never processed nor maybe lost my paperwork.

I [the claimant] request an appeal of my SMA that was denied due to did not submit the request in a timely manner.

In its January 4, 2024, memorandum and September 20, 2024, agency administrative report (AAR) to OPM, the agency denies the claimant’s request for retroactive ISMA for the period from July 2021 through April 2023, because the component of the agency responsible for approving ISMA benefits did not receive the required documents in a timely manner. Their memos state, in relevant part:

Although you were assigned to a position in an area where, for the convenience of the Government, family members are not allowed, and thus the grant of ISMA may be considered, your assignment was between July 2021 (request made in September 2021) to April 2022. This office was not made aware of your request until early May 2023. On 09 July 2023, this office raised concerns with the action, chiefly expressing an understanding of possibly administrative oversights or misunderstanding regarding this somewhat dated action. We did note that [Major General] approved the action on 27 July 2022, at which time, it was a retroactive approval for an event, your assignment to Kuwait, has already passed. We expressed our concerns with respect to the retroactive nature of the request, and eventually determined to not issue our approval.

Based on the information available, [the claimant] became a Federal civilian employee when he was appointed to a position as Logistics Management Specialist, GS-0346-13, with the U.S. Army Sustainment Command, 401st Army Field Support Brigade (AFSB)– Iraq, with duty station at Camp Arifjan in Kuwait, effective June 29, 2021, under a TERM appointment NTE July 28, 2022.

Due to what appears to have been a misunderstanding or a lack of understanding of procedures on the processing of SMA requests, [the claimant’s] claim for the allowance did not come to fruition at that time or even shortly thereafter.

When [the claimant’s] request for the allowance was eventually submitted to this office for final determination, which was nearly two years later, this office denied the allowance…

The agency also determined that the claimant is not eligible to receive ISMA for his second overseas assignment as a Logistics Management Specialist, GS-0346-13, with the 408^th Contracting Support Brigade at Camp Arifjan, Kuwait from April 24, 2022, through May 21, 2023, because he failed to request ISMA for this assignment and because of their characterization of ISMA as a “recruitment incentive.” The agency’s September 20, 2024, AAR states, in relevant part:

… [the claimant] accepted employment with the U.S. Army Contracting Command, 408th Contracting Support Brigade, at Camp Arifjan in Kuwait, effective April 24, 2022…

…There is no record of him or his then employing command requesting ISMA on behalf of his family…

…[the claimant] accepted another TERM appointment with a different command at [the U.S. Army Contracting Command, 408th Contracting Support Brigade, at Camp Arifjan in Kuwait] and, what is equally important, [the claimant] did not receive ISMA whilst assigned with the U.S. Contracting Command there…

… [the claimant’s] ISMA request is specifically intended to be a recruitment incentive to accept Federal employment in Camp Arifjan, Kuwait…

… [ISMA] is generally viewed as a recruitment incentive, rather than anything else…

However, there is no evidence that the claimant’s OPM claim for retroactive ISMA intended to include the period covering his second overseas assignment with the 408^th Contracting Support Brigade in Kuwait. Consequently, there is no basis for OPM to consider the issue of ISMA during this period. Thus, the agency’s justifications for denying ISMA for the claimant’s second overseas assignment are moot and issues regarding ISMA for the claimant’s second overseas assignment will not be considered further in this decision.

The Department of State Standardized Regulations (DSSR) contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.

Section 261.1 of the DSSR addresses separate maintenance allowance (SMA), including ISMA, stating in relevant part:

…SMA is an allowance to assist an employee to meet the additional expenses of maintaining members of family elsewhere than at the employee’s foreign post of assignment…

Section 261.2 defines the scope of SMA, including ISMA, stating in relevant part:

SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below to maintain a separate household for the family or a member of the family.

However, the DSSR acknowledges the discretionary nature of benefits such as ISMA, and an agency’s latitude in approving such benefits, by the use of the word “may” in section 262.1. The regulation states, in relevant part:

An agency may authorize ISMA when adverse, dangerous, or notably unhealthful conditions warrant the exclusion of members of family from the area or when the agency determines a need to exclude members of family from accompanying an employee to the area.  

Thus, the statutory and regulatory language associated with ISMA is permissive and gives agency heads considerable discretion in determining whether to grant ISMA to agency employees. Therefore, an agency has the authority to deny ISMA payments to an employee when an agency determines the circumstances justify such actions. OPM does not question an agency’s decision to deny a discretionary allowance, such as ISMA, unless the agency’s actions are determined to be 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).

In this case, although the claimant provided documents and e-mails indicating he submitted and periodically monitored the progress of his ISMA request, he nevertheless fails to establish the liability of the United States and his right to payment of this discretionary benefit as required under 5 CFR 178.105. Moreover, the agency’s decision to deny the claimant’s request for retroactive ISMA benefits due to the excessive period of time (i.e., nearly two-years) between submission of the claimant’s ISMA request and receipt of the request by the component of the agency responsible for processing the request does not exceed the agency’s authority under section 262.1, of the DSSR to exercise discretion when granting ISMA. Therefore, the agency’s decision to deny ISMA to the claimant cannot be construed as arbitrary, capricious, or unreasonable and the claim 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.

Back to Top