Office of the General Counsel

Date: January 12, 1998
Matter of: [xxx]
File Number: s9701101

OPM Contact: Joann Charleston

An employee of the [agency] requests that we review her claim for retroactive payment of Separate Maintenance Allowance (SMA). We have completed our review of this claim and have determined that it may not be allowed.

The record shows that on July 29, 1994, the employee was assigned to the [agency] with an official duty station [overseas]. At the time of her assignment the employee did not list any dependents on her travel authorization data form. In September 1994, the employee returned to the United States to be married. She married on September 20, 1994 and returned to [xxx] on September 28, 1994.

On December 16, 1997, the employee submitted vouchers for reimbursement of SMA for the period October 1, 1994 through December 30, 1996, to the Southern Plains Area Office (SPAO). Her claim was processed for the upcoming year in accordance with Department of State Standardized Regulations, and she was reimbursed for the period January 1, 1997 through December 31, 1997. SPAO states that it does not have the authority to grant SMA retroactively, a petition for the retroactive allowance was submitted to [agency], Financial Management Division (FMD). [agency], FMD was later informed by the Department of State that [the agency] does not have the authority to waive State Department regulations in granting a waiver for retroactive SMA. The [agency], requested that the Department of State waive it's regulations and grant the retroactive SMA. The Department of State denied the request to waive it's regulations. The employee is now requesting our assistance in obtaining retroactive SMA.

Title 5, United States Code, section 5924(3) states that a separate maintenance to assist an employee who is compelled or authorized, because of dangerous, notably unhealthful, 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.

In this instance the employee has stated that she sent a copy of her marriage license to the Administrative Officer for the [agency] program in [state]. However, they have record of receiving a copy of the marriage license before October 1996. The record indicates that the employee was reimbursed in accordance with the applicable regulations, and since these regulations were issued pursuant to statutory authority, they have the force and effect of law. We settle claims only on a legal basis and cannot waive or modify the regulations in individual cases.

Accordingly, the claim is denied.