Washington, D.C
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Command
Integrated Logistics Support Center
Associate Director for Readiness and Field
Support
Logistics Assistance Division
Europe Field Office
Aberdeen Proving Ground, MD
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/25/2025
Date
The claimant is a Federal civilian employee currently assigned to Headquarters Communication Electronics Command, Integrated Logistics Support Center, Associate Director for Readiness and Field Support, Logistics Assistance Division, Europe Field Office, Aberdeen Proving Ground, Maryland, U.S. Department of the Army (Army), in Vilseck, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of Voluntary Separate Maintenance Allowance (VSMA) for his current position. OPM 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 was reassigned effective June 4, 2023, from his former state-side duty station in Maryland, to his current overseas duty station in Vilseck, Germany, with no change to the series, title, and grade of his position, i.e., Equipment Specialist (IEW STR), NH-1670-III.
The agency found the claimant eligible to receive living quarters allowance (LQA) under the Department of State Standardized Regulations (DSSR) for his current overseas assignment. In their September 25, 2024, AAR to OPM, the agency states in relevant part:
Pursuant to the provisions of the DSSR § 031.2, eligibility for SMA under the DSSR § 260 et seq. is incumbent upon an employee’s eligibility for LQA under the provisions of the DSSR § 031.1. Mr. Whitaker is eligible for LQA under a forecited provision of the DSSR in conjunction with the [Department of Defense Instruction (DoDI) 1400.25 v 1250], and the [Army in Europe Regulation (AER) 690-500.592], as an employee recruited in the United States.
However, the agency determined that the claimant did not meet the eligibility requirement for VSMA under the AER 690-500.592, due to the insufficiency of the claimant’s rational for establishing separate residence for he and his wife and due to the length of the claimant’s overseas tour in Germany. In its September 25, 2024, AAR to OPM the agency states, in relevant part:
Pursuant to the provisions of the [JTR], an assignment to any posting in Germany is under a standard 36-months tour, serving under an initial service agreement. [the claimant] requested VSMA on behalf of his spouse, who, for various reasons, has not accompanied him on this assignment. Unfortunately, this office denied the allowance chiefly for the circumstance that the AER 690-500.592, paragraph 12c(2), limits the grant of VSMA to a short-term basis to meet a specific short-lived situation and is not intended to be considered a grant for an employee’s entire tour when the assignment allows for accompaniment of family members.
Voluntary SMA may be granted for only one of the following reasons (the provisions in the DSSR, sections 262.2 and 264.2, will be strictly applied):
(b) Short-term periods based on medical conditions of a Family member. These requests must include current, acceptable documentation of the Family member’s medical condition from the responsible healthcare provider.
While we acknowledge that his spouse accompanying him on his current assignment is owed, in part, due to her age of 67 at the time, and, seemingly more importantly, due to the fact that she is covered under Medicare Parts A and B, which would cause her to pay expenses for medical care herself should she join him in the overseas area. As a result, the couple mutually decided for her to not accompany him to Germany. We found these reasons insufficient to meet the conditions set forth by the [DSSR] and adopted by the agency-specific regulation...
In his OPM claim, the claimant disagrees with the agency’s interpretation of AER 690-500.592, paragraph 12(c), and seems to assert that he is eligible to receive VSMA under AER 690-500.592, paragraph 12(c), because the agency found him eligible to receive LQA for his current overseas assignment; his spouse’s age (67) and “current health status”; and because of the financial burden of obtaining healthcare coverage in Germany comparable to Medicare parts A and B. His claim states, in relevant part:
The [agency] denial appears to ignore paragraph 12c, which clearly states SMA may be authorized for employees eligible to receive LQA in order to defray additional expenses with maintaining a separate residence for family members.
My spouse is 67 years old and currently on Medicare Part A and Part B. Medicare does not cover care in Germany and obtaining another form of insurance would prove too costly. Additionally; my wife and I took into consideration her current health status, and mutually agreed, it would be wise not to make the move to Germany at her age.
At this late point in my career it would not be advantageous for both my wife and I to up and sale our retirement home and then upon return from Germany, start all over. This unexpected and untimely PCS has forced us to make the hard decision of living apart and maintaining two domiciles during my tour.
Bottom line is, my request was to defray the additional cost of maintaining two households.
The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.
Section 261.1 of the DSSR addresses various SMAs, including VSMA, and states, 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.
VSMA may be granted to an employee who personally requests such an allowance, based on special needs or hardship involving the employee or family member(s).
Section 261.2 of the DSSR states, in relative terms, that SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by specific enumerated circumstances associated with VSMA to maintain a separate household for the family or a member of the family.
Regarding VSMA, section 262.2 of the DSSR states, in relevant part:
An agency may authorize VSMA when an employee requests VSMA for special needs or hardship prior to or after arrival at post for reasons including but not limited to career, health, educational or family considerations for family members.
Unless specifically designated otherwise by the head of agency, family members on VSMA are considered to be officially residing in the U.S.
AER 690-500.592, paragraph 12c (2)(b), provides specific guidance regarding employee eligibility for SMA and VSMA. The AER states, in relevant part, that the agency may authorize VSMA for:
…Short-term periods based on medical conditions of a Family member. These requests must include current, acceptable documentation of the Family member’s medical condition from the responsible healthcare provider. Approval of such requests will not exceed 1 year and will consider availability of adequate medical care in the foreign area of the post of assignment…
SMA, including VSMA, is a discretionary allowance, not an entitlement. The language applying to SMA in the DSSR, and the AER is permissive rather than mandatory. By use of the permissive term “may” as opposed to the mandatory terms “will,” “shall,” or “must” in relation to SMA, agencies are granted discretionary authority in allowing or disallowing SMA in individual cases. Because VSMA is a discretionary allowance, agency implementing guidance, such as the AER 690-500.592, paragraph 12(c), may be more restrictive, but not more permissive, than the DSSR, i.e., they may impose additional limitations on the granting of VSMA but may not extend benefits that are not otherwise permitted by the DSSR.
According to the record, the period of the claimant’s overseas tour in Germany was from two to three years. However, the AER 690-500.592, paragraph 12c (2)(b), clearly states that eligibility for the VSMA benefit is based on “short-term” periods not exceeding one year. Therefore, AER 690-500.592, paragraph 12c (2)(b), is not met because the length of his current tour in Germany extends beyond the short-term period envisioned by the guidance and the claim is denied.
The record shows the claimant’s decision to establish two separate households was based, in part, on his spouse’s “current health status.” However, the AER 690-500.592, paragraph 12c (2)(b), clearly requires current, acceptable documentation from a responsible healthcare provider of specific medical condition(s). However, the claimant provides no documentary evidence from a responsible healthcare provider of any specific medical condition(s) which may prevent his spouse from accompanying him and justify the need to establish two households. Therefore, AER 690-500.592, paragraph 12c (2)(b), is not met and the claim is denied.
In his OPM request, the claimant indicates the financial burden of providing healthcare to his spouse in Germany comparable to Medicare parts A and B, would place a significant financial burden on him. However, he provides no cost comparisons between available healthcare programs in Germany and Medicare parts A and B. Therefore, there is no evidence that the claimant would have incurred a financial burden as a result of replacing his spouse’s Medicare parts A and B with a comparable healthcare plan in Germany. Therefore, the claim is denied.
Based on all available evidence, the circumstances of the claimant’s current assignment do not meet the intent of DSSR 261.2, which requires that an employee be “compelled” to maintain a separate household for the family or a member of the family. Therefore, the claim is denied.
The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant VSMA to agency employees. Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Thus, an agency has the authority to deny VSMA payments to an employee when the circumstances justify such actions. OPM does not question an agency’s decision to deny a discretionary allowance, such as VSMA, unless the agency’s actions are determined to be arbitrary, capricious, or unreasonable. However, since the agency’s decision to deny the claimant VSMA was based on current AER guidelines, their decision cannot be construed as arbitrary, capricious, or unreasonable, and the claim is denied.
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, the claimant provides no evidence of medical or financial burdens which would compel him to establish a second household during his current assignment in Germany. Thus, the claimant fails to establish the liability of the United States and his right to payment under 5 CFR, 178.105, 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.