Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein Air Base, Germany
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/26/2025
Date
The claimant is a Federal civilian employee in the U.S. Department of the Air Force (AF), at Ramstein Air Base, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of Voluntary Separate Maintenance Allowance (VSMA). We received the claim on July 10, 2024, and the agency administrative report (AAR) on July 31, 2024. For the reasons discussed herein, the claim is denied.
According to the record, in December 2020, the claimant accepted an assignment overseas and his spouse accompanied him. In June 2024, the claimant’s spouse returned to the United States to accept a position with a U.S. Department of Defense (DoD) contractor, based in Huntsville, Alabama and to maintain a closer residence to assist her elderly parents. As a result of this separation, on July 2, 2024, the claimant applied for a separate maintenance allowance.
On July 5, 2024, AF issued the claimant a memorandum denying his request for VSMA stating “SMA cannot be granted because your spouse accompanied you during your tour and made the decision to accept the position in the US. She made the personal choice rather than a compelling reason.” The letter closed by informing the claimant of his right to appeal the VSMA denial to OPM.
In its AAR to OPM, the agency provides further support for its decision to deny the claimant VSMA by stating in relevant part:
… [the claimant] came overseas in December 2020 and his Family joined him on this overseas assignment. In June 2024 he requested SMA due to his wife accepting a job in the United States. Our office typically approves SMA in instances where, for example, children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. No such compelling hardship was established as a part of the SMA request in the claim submitted to OPM.
… Our office denies SMA on cases where the request does not reflect a compelling reason or hardship situation beyond the employee’s control. In this case, we consider the split of the family to be a personal choice, which is not sufficient justification to warrant SMA rather than for special needs or hardship as described by Department of State Standardized Regulations (DSSR) section 262.2 …
… In this case, the [claimant] family made a conscious personal decision to separate the family for the wife’s new assignment in the United States, therefore denial of SMA was inevitable …
… The permissive language in the DSSR Section 261.2 and 262 stated that voluntary SMA “may” be granted if the employee is “compelled” by certain circumstances to maintain a separate household. The “head of agency” makes that determination, which has been delegated to the Civilian Personal Officer here at Ramstein AB, Germany. In this case, the [claimant] family made a conscious personal decision to separate the family for the wife’s new assignment in the United States, therefore denial of SMA was inevitable …
The Overseas Differentials and Allowances Act, as amended and codified in Section 5921 – 5928 of title 5, United States Code (U.S.C.), provides that, under regulations prescribed by the President, a SMA may be paid to Federal employees in foreign areas. Section 5924(3) of 5 U.S.C. states that SMA may be granted to assist an employee who is compelled or authorized, because of dangerous, notably unhealthy, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because of special needs or hardship involving the employee or the employee’s spouse or dependents, to meet the additional expenses of maintaining, elsewhere than at the post, the employee’s spouse or dependents, or both.
By Executive Order, the President delegated this authority to the Secretary of State, who issues the Department of State Standardized Regulations (DSSR) governing overseas allowances and differentials. The DSSR further delegates the authority to grant SMA to the heads of Federal agencies. Section 262, Circumstances Warranting SMA of the DSSR states:
SMA may be granted to an employee whenever the head of agency determines that the employee is compelled to maintain any or all members of family elsewhere than at the foreign post of assignment …
Section 262.2, of the DSSR further describes VSMA, in relevant part, as follows:
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 …
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). 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. 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.
The agency asserts that it approves SMA in instances where children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. Although the claimant asserts that his spouse remained in the U.S. to take care of her elderly parents and to assist their daughter, he offers no evidence of medical conditions being the reason for the family separating. The agency is clear that it denies SMA in cases where no compelling reason or hardship exists beyond the employee’s control. Consistent with that practice, the agency denied the claimant’s SMA request as no compelling hardship was established. Where an agency decision is consistent with their established practice in similar situations, it cannot be considered arbitrary, capricious, or unreasonable, and there is no basis on which to reverse the decision. For the reasons stated above, we find no reason to disturb the agency’s decision to deny VSMA and the claim request 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 has failed to establish any liability of the United States and a right to payment under 5 CFR 178.105.
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.