Washington, DC

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

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


03/05/2025

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Date

The claimant is a Federal civilian employee of the U.S. Air Forces, Europe (AFE) at Ramstein Air Base (AB), Germany. He requests the U.S. Office of Personnel Management (OPM) direct the employing agency to restore his living quarters allowance (LQA). We received his claim on July 31, 2024, the agency administrative report (AAR) on September 13, 2024, and the claimant’s comments on the AAR on October 2, 2024. For reasons discussed herein, the claim is denied.

The claimant previously occupied an Information Technology Specialist (Network Services), GS-2210-11, position with the Air Combat Command (ACC) at Langley Air Force Base (AFB), Virginia. On June 1, 2019, he was placed on Leave Without Pay (LWOP) not to exceed May 31, 2020, but the action was later extended not to exceed August 2, 2020. On or around June 10, 2019, the claimant entered South Korea to accompany his spouse, an active-duty military member, on her assignment. The Standard Form (SF) 50 shows that on August 2, 2020, the claimant’s position was reassigned to an ACC organization at Ramstein AB. He explains in his claim to OPM:

…my wife’s previous assignment was a non-command sponsored tour at Osan AB. To be with her, my children and I sold our house and temporarily resided in the dorms until our PCS to Ramstein. We did not receive Basic Allowance for Housing during our brief stay in Korea. During this period, I took [LWOP] to maintain eligibility in the [Air Force Engineering and Technical Services] program. Upon arriving at Ramstein, our plans to return stateside to fulfill the 30-day requirement, were further disrupted by COVID-related travel restrictions, a stop movement order, and mandatory quarantine. Additionally, my wife was 40-41 weeks pregnant with our third child, which made travel impossible…Following my supervisors’ advice, we submitted an Exception to Policy request, which was thankfully approved through [human resources], granting us LQA.

The claimant was subsequently reassigned on September 24, 2023, to his current AFE position as Supervisory Information Technology Specialist (INFOSEC), GS-2210-12, with the 86^th Communications Squadron of the 86^th Airlift Wing. He was initially granted continuance of LQA. However, in a July 26, 2024, memorandum, the Civilian Personnel Office (CPO) of the 86^th Airlift Wing notified him that he did not meet LQA eligibility criteria, stating:

You [received permanent change of station] from Osan AB, South Korea to Ramstein AB, Germany in August 2020 on your spouse’s military orders while being on [LWOP] status. Prior to your appointment to Ramstein AB, you did not travel back to the United States (U.S.) to complete the application and recruitment process. Langley AFB created “no cost orders” from Langley AFB, VA to Ramstein AB, Germany.

The memorandum concludes that because he had “not resided in the U.S. during the entire application process,” the claimant could not be considered a U.S. hire in accordance with Department of State Standardized Regulations (DSSR) section 031.11, which permits the granting of LQA to employees recruited in the United States. The memorandum further states:

Due to the fact that you do not meet the LQA eligibility requirements, your original LQA Determination from August 2020 was issued incorrectly. That means that your LQA will be collected from your start date (7 August 2020) until present and will not continue.[1]

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, Department of Defense Instruction (DoDI) 1400.25-V1250 implements the provisions of the DSSR but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI and other agency implementing guidance may be applied.

In keeping with the stated purpose of LQA as a recruitment incentive, LQA eligibility is established at the time of initial appointment or placement to the overseas position. This is based on the DSSR, which set forth basic eligibility criteria for granting LQAs. Thus, any subsequent position changes (e.g., reassignments) are internal placements occurring within the context of the initial overseas action. The claimant was reassigned to his current AFE position in September 2023. Because any subsequent position held after his August 2020 reassignment does not constitute his initial overseas action, it may not be considered for LQA eligibility purposes. See OPM File Numbers 10-0043, 12-0038, 15-0018, and 16-0049. Therefore, we examine the hiring circumstances in August 2020 when he was initially reassigned to the ACC organization at Ramstein AB.

LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:

Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.

Relative to this criteria, DoDI 1400.25-V1250 defines “U.S. hire” as follows:

A person who physically resided permanently in the United States or the Commonwealth of the Northern Mariana Islands from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.

An employee’s status as a U.S. hire is based on physical residency at the time of recruitment for the position in question. Thus, an employee must be physically residing in the United States from the time of application until acceptance of a formal job offer. Whether an employee is deemed to be recruited inside or outside the United States is dependent on the location of the employee when recruited. To support eligibility for LQA under DSSR section 031.11, the claimant characterizes his stay in South Korea as “brief,” asserts he was on LWOP from his ACC position at Langley AFB, and describes travel restrictions, his spouse’s pregnancy, and other reasons resulting in his inability to return to the United States at that time. Neither the claimant nor agency provided documentation, dates, or other information regarding the recruitment or hiring actions leading to his August 2020 reassignment to the ACC organization at Ramstein AB. Nonetheless, the record shows he was absent from the United States from June 2019 to August 2020. Because he was outside the United States for the entirety of the presumed recruitment or hiring process preceding his initial August 2020 overseas assignment, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11, DoDI 1400.25-V1250, and other implementing agency guidance.

The claimant also 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:

a. 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 their employment by the United States Government; and

b. 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. 1. 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 their 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 meets DSSR section 031.12a. The record shows his presence in Germany can be attributed to his employment with ACC since presumably he had no other reason to be in Germany other than to work.

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 resided in South Korea during the entirety of the hiring process, thus he was not recruited in the United States. He provided no documentation showing, nor does he assert, that prior to his reassignment to the ACC position at Ramstein AB, he was employed overseas by one of the enumerated entities which provided return transportation back to the United States. Rather, he was on LWOP from his ACC position assigned to Langley AFB. Therefore, the claimant does not meet the employment conditions described in DSSR section 031.12b.

Unlike the claimant’s situation, DSSR section 031.12c applies to existing Federal employees required by the agency to move to another area “in cases specifically authorized by the head of agency.” Because there is no evidence his reassignment to Ramstein AB was required by the agency as a condition of his employment (e.g., base closures and transfers of function), DSSR section 031.12c is not met.

The claimant states in his AAR comments:

…I attached recorded statements from the [86^th Force Support Squadron (FSS)] CPO office, acknowledging my situation and being fully aware of the exception. This was approved by their office, and therefore, they bear the responsibility in granting me LQA based on the circumstances. I request that the 86 FSS CPO provide reasoning on how they approved my LQA.

OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C. 3702(a)(2) is narrow and limited in the case of LQA claims to determining whether a claimant is eligible for LQA and, if so, whether the claimant has received LQA in accordance with the DSSR and agency policies and procedures. Moreover, OPM is not granted policy exception authority over any provisions of either the DSSR or implementing agency regulations. Such decisions are at the discretion of the agency and not subject to OPM review under 31 U.S.C. 3702(a)(2). Thus, the claimant’s questions regarding his exception to policy must be directed to his employing agency.

The claimant asserts that the termination of LQA payments created a financial burden on his family. The scope of OPM’s authority under 31 U.S.C. 3702(a)(2) is narrow and limited to determining if monies are owed the claimant for the stated claim under the applicable statute and implementing regulations and does not extend to considering claims on the basis of financial hardship. Therefore, his assertions about his financial situation have no applicability to our claim settlement determination.

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 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 his right to payment. He has failed to do so. 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.

[1] The claimant states in his claim to OPM that his organization at that time approved an “Exception to Policy request,” which is by definition the granting of an exception to any regulatory or policy requirement. However, his current organization, i.e., the 86^th Airlift Wing, does not reference an approved policy exception in either its July 2024 LQA determination or AAR to OPM. Assuming the claimant was initially granted LQA by way of a policy exception in August 2020 as he asserts, it is unclear why the agency explains in its July 2024 memorandum that his original LQA determination was “issued incorrectly” and, moreover, states its intention to collect LQA granted from its initial issuance in August 2020.

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