Office of Merit Systems Oversight and Effectiveness

Date: February 25, 2002
File Number: [01-0040]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a Program Analyst, GS-343-13, at [agency, city, country]. He is requesting a waiver for Temporary Quarters Subsistence Allowance (TQSA) and Living Quarters Allowance (LQA) for his tour of duty in [country]. OPM received the claim on July 9, 2001, and we accepted the claim on July 16, 2001. The agency provided information, dated October 15, 2001, which we received on December 7, 2001. For the reasons discussed herein, the claim is denied.

The claimant retired from the military in November 1998 and resided in [previous country] with his wife, who was on active duty in [previous country]. In August 2000, the claimant was offered and accepted a Program Analyst, GS-343-13, position at the [agency installation, country]. The claimant stated that his acceptance of the position was based on the understanding that he would receive LQA, as suggested in the agency's letter dated August 10, 2000.

The claimant stated that, "I do not question the Civilian Personnel Office's interpretation of the directives, I still submit, that there are extenuating circumstances that should be considered." The claimant also questions the criteria that "the applicant must have 'substantially continuous employment.'"

The agency confirmed that, in the agency's selection letter, dated August 10, 2000, the claimant was told that he was entitled to a living quarters allowance. However, the agency sent the claimant another letter, dated August 30, 2000, renouncing his eligibility for LQA. The claimant still accepted the position and the appointment was effective September 25, 2000.

The agency also referenced the Department of State Standardized Regulations (DSSR), Section 031.12, and the Civilian Personnel Manual of the Department of Defense, DoD 1400.25M, Subchapter 1250. It is the agency's belief that the claim should be denied because the claimant does not meet any of the criteria listed in Subchapter 1250, that would warrant a waiver.

The DSSR, Section 031.12, states:

• Quarters allowances prescribed in Chapter 100 may be granted to employees recruited outside the United States, provided that:
  • 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 his/her employment by the United States Government;

Prior to selection for the civilian position, [claimant] was residing in [previous country] with his wife, who was on active military duty.

The DSSR, Section 031.12, also states:

• Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.

The unusual circumstances are discussed in the Civilian Personnel Manual of the Department of Defense, DoD 1400.25M, Subchapter 1250, which states:

• Officials identified in paragraph F,1(a), may waive DSSR section 031.12b requirements for locally hired U.S. citizen employees when, but for the conditions surrounding the employment, the employee would be residing in the United States. One of the following situations must have occurred for this waiver:
  1. The sponsoring spouse dies.
  2. Sponsoring spouse becomes physically or mentally incapable of continued employment with the Government.
  3. The couple is divorced or legally separated.
  4. Sponsoring spouse left the post or area permanently.
  5. Spouses could not maintain a common dwelling due to the relocation of either spouse's work place.
  6. The employee is an incumbent of a position designated as emergency-essential in accordance with DoD Directive 1404.10.

The claimant must have entered the country as the spouse of a sponsor who was eligible for LQA in circumstances 1 through 5 listed above. A waiver is only applicable in circumstance 6 "for the period during which a crisis situation is declared to exist under reference (e)." [claimant] was in the country as "a dependent of a US Military member assigned to the Supreme Headquarters Allied Powers Europe," but he was not eligible for LQA as described in circumstances 1 through 5; nor was his position designated as emergency-essential.

The Civilian Personnel Manual of the Department of Defense, DoD 1400.25M, Subchapter 1250, E,1,a(2), states:

• Under the provisions of Section 031.12b of the DSSR (reference(a)), former military and civilian members shall be considered to have "substantially continuous employment" for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired and/or separated member or employee uses any portion of the entitlement for Government transportation back to the United States, which occurs first. In unusual cases, an employee may be considered to have substantially continuous employment even though a portion of the entitlement (e.g., early return of a family member or movement of household goods from nontemporary storage) has been used. Satisfaction of DSSR paragraph 031.12b alone will not make the former military or civilian employee eligible. The employee must also satisfy the requirements of DSSR paragraph 031.12a, to establish eligibility.

[claimant] did not have "substantially continuous employment" because he retired from the military in November 1998 and was appointed to the civilian position on September 25, 2000.

The Overseas Differentials and Allowances Act, Pub. L. 86-707 74 Sat. 793, 794 (Sept. 6, 1960), as amended and codified at 5 U.S.C. 5922-5924, provides that, under regulations prescribed by the President, LQAs may be paid to federal employees in foreign areas. The President, by executive order, delegated this authority to the Secretary of State, who issued Standardized Regulations concerning eligibility to receive, and payment of, LQAs. Section 013 of the DSSR further delegates to the heads of federal agencies the authority to grant LQAs to agency employees. Section 013 of the DSSR specifies that the head of an agency may grant quarters allowances and issue further implementing regulations, as he or she may deem necessary for the guidance of the agency in granting such allowances. The DoD has issued further implementing regulations through its requirements for DoD civilian employment overseas, DoD 1400.25-M, CPM 592.

The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQAs and TQSAs 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 that the agency's action was arbitrary, capricious, or unreasonable. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 378 (1979).

Where the agency's factual determination is reasonable; we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982. The claimant was physically residing in Belgium when he was hired, and is, therefore considered, a "local" hire. The claimant accepted the civilian position after the agency informed him that

he was not entitled to LQA. The claimant was not in substantially continuous employment since he retired from the military in November 1998 and was appointed to the civilian position on September 20, 2000. In view of the permissive rather than mandatory language in the applicable statutes and regulations, as noted above, the degree of discretion that heads of agencies have in determining whether to authorize these allowances, and the facts of this claim, we cannot say the agency's application of the DoD regulation in this case was arbitrary or capricious. Accordingly, the claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

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