Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Uijeongbu, Republic of Korea
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/25/2015
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) in Uijeongbu, Republic of Korea. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA). We received the initial claim request on April 15, 2014, an additional submission on May 7, 2014, and the agency administrative report (AAR) on November 18, 2014. For the reasons discussed herein, the claim is denied.
The claimant was an active duty military member duty stationed in Korea when he applied for Federal civilian employment on June 29, 2009. He was approved for military terminal leave effective July 2, 2009, prior to his military retirement in Korea, which was effective October 31, 2009. He was appointed to the Federal Service on December 21, 2009, and was granted LQA.
In April 2013 the claimant was notified that, as a result of a Department of Defense (DoD)-directed LQA audit, it was determined he did not meet the LQA eligibility provisions in the Department of State Standardized Regulations (DSSR) section 031.12b, which requires that an employee recruited outside the United States must, prior to appointment, have been recruited in the United States by his or her previous employer and have been substantially continuously employed by such employer under conditions providing for return transportation to the U.S. The notification letter stated that he had been "identified as an employee recruited outside the United States who had more than one employer in the overseas area prior to [his] appointment into appropriated fund Federal civilian service."[1]
The agency states that in the “Questionnaire for LQA Determination” which the claimant filled out upon his acceptance for the position, he responded affirmatively to the question of whether he applied for his position while physically residing in the United States or a U.S. possession.[2] However, the agency states “this was an inaccurate response.” The agency reports that, based on the records from their automated referral system, the claimant applied for the position on June 29, 2009. Further, the agency submitted documents signed by the claimant in Korea on June 29 and 30, 2009, thus indicating he was in Korea when he applied for the position.
The claimant, in his claim request, asserts that “the interview for this job offer, the application and hiring for [his] current position, were all conducted while [he] was retired and physically back in Manhattan, KS.” However, he acknowledges that he “was stationed and serving in Korea and enrolled in the DoD mandatory sponsored ACAP program as part of [his] separation and retirement from the US Army when [he] submitted resumes… [he] had a job offer based on one of the resumes submitted on 29 June 2009, while [he] was still in the Army and on active duty.”
In addition, although the claimant asserts he "returned immediately to the United States after [he] retired," and responded affirmatively on the questionnaire as to whether he received and accepted the job offer while physically residing in the United States or a U.S. possession, he provided no documentation to support this assertion. He provided a copy of "Request/Authorization for DoD Civilian Permanent Duty or Temporary Change of Station Travel" issued on December 1, 2009, which shows him authorized travel from Manhattan, Kansas, to Korea as a new hire for reporting date December 21, 2009. This document indicates that he did return to the U.S. at some point between his military retirement and Federal appointment, but does not establish the date of such return.[3] He also provided a copy of a lease taken out in his name for an apartment in Manhattan, Kansas, to commence on July 1, 2009, and a December 12, 2009, letter from the property management company regarding the “checkout inspection” of the apartment. However, these documents in themselves do not establish either that he actually resided in this apartment or the date when he returned to the U.S.
The claimant bases his claim exclusively on the argument that he “was never counseled on the consequences of the DSSR and its impact on seperating [sic] from the service while stationed and serving overseas” and would “have never seperated [sic] and retired from an overseas assignment and location… had I not been wrongfully and improperly guided, advised, told and counseled that it was OK to do so accordingly by the DA.” [4]
The DSSR sets forth the basic eligibility criteria for the granting of LQA. However, under section 013, it allows agencies to issue implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments.
Thus, agency implementing regulations such as those contained in Department of Defense Instruction (DoDI) 1400.25, Volume 1250, administratively reissued July 31, 2009, and in effect at the time of the claimant’s appointment, may impose additional requirements to further restrict LQA eligibility, but may not exceed the scope of the DSSR; i.e., allow for the granting of LQA in cases not otherwise permitted under the DSSR.
Section 031.11 states LQA may be granted to employees recruited in the
Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the
DoDI 1400.25, Volume 1250, further 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. [Italics added.]
Since the claimant acknowledges he was still physically residing in Korea when he applied for his current position, and additionally has not established that he was residing in the U.S. until and including the date he accepted the formal job offer, he is ineligible for LQA under DSSR section 031.11 in accordance with the DoD implementing regulations as they pertain to U.S. hires.
It is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso V. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant was not advised, during the military retirement counseling process, of LQA eligibility requirements should he seek subsequent Federal civilian employment does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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 that the agency’s action was arbitrary, capricious, or unreasonable. Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the
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] This reason for the claimant’s LQA termination was apparently erroneous and the correct basis for the determination, as addressed in the AAR, was conveyed to the claimant by the agency in an August 17, 2013, email.
[2] The agency was unable to provide a copy of this questionnaire completed by the claimant at the time of appointment, but included with the AAR a copy of the same questionnaire completed and signed by the claimant on March 27, 2013, in connection with the LQA audit, with the aforementioned affirmative response.
[3] This document does not indicate that "household goods (HHG) shipment" from the U.S. to Korea was expected (i.e., block 15a was not checked "yes"), although it was authorized in block 28, "Remarks or Other Authorizations." The claimant submitted a copy of "U.S. Customs and Border Protection Declaration for Personal Property Shipments" signed and dated by him on June 29, 2009, and apparently intended to show that he had shipped his HHG back to the U.S. after his military retirement and established residency there. However, this form is not signed or certified by anyone other than the claimant and thus does not establish that the HHG shipment to the U.S. actually occurred. Further, the claimant responded negatively on the LQA questionnaire to the question of whether he had used any portion of his military return transportation entitlement.
[4] We note that the basis for the claimant’s LQA ineligibility is not his separating from the military while overseas but rather his applying for Federal employment while overseas.