Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
United States Marine Corps
Okinawa, Japan
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/30/2015
Date
The claimant is a Federal civilian employee at the Marine Corps Base (MCB) Camp Smedley D. Butler, United States Marine Corps (USMC), in Okinawa, Japan. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA). We received the claim request on September 11, 2014, and the agency administrative report (AAR) on October 28, 2014. For the reasons discussed herein, the claim is denied.
The claimant was officially separated from military service at MCB Camp Butler on July 1, 2009. He was recruited for and accepted employment with the United States firm Computing Technologies, Inc. (CoTs), in Okinawa, Japan, from April 20, 2009, to February 12, 2010. The position did not confer return transportation back to the United States. The claimant subsequently applied for, was offered, and accepted his current Federal service position effective February 16, 2010.
Upon the claimant’s acceptance of his current Federal position, the agency initially concluded he was eligible for and thus granted him LQA. On August 2, 2013, the MCB’s Civilian Human Resources Office notified the claimant that their initial LQA eligibility determination was erroneous and his LQA was being terminated. The basis for this determination was that he had been recruited outside of the United States and did not meet applicable LQA eligibility requirements under the Department of State Standardized Regulations (DSSR). The agency explains in its AAR to OPM that the claimant falls under the “category of military members who had separated outside the U.S., and had intervening employment between separation and being hired as a civilian employee within the [Department of Defense].” The claimant disagrees with the agency’s findings, stating in his claim request to OPM that he “did not have more than one employer before [his] appointment as a GS employee.
The DSSR contains 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 by the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
DSSR section 031.12 states, in relevant part, 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 his/her 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) 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 his/her 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 [italics added]
The claimant does not meet basic LQA eligibility criteria under DSSR section 031.12b. In its description of circumstances surrounding an employee’s recruitment and employment occurring immediately “prior to appointment” as the basis for LQA eligibility, the DSSR makes clear that eligibility is established at the time of appointment; i.e., based on the circumstances existing prior to the employee’s appointment to the Federal service. The record shows that prior to his Federal service appointment, the claimant was employed by the United States firm CoTs. He was physically residing in Okinawa, Japan, when he was recruited by CoTs. The claimant has not made any statements or submitted any documentation establishing that CoTs recruited him in the United States or one of the aforementioned territories or possessions. Therefore, we conclude he was not recruited by CoTs in the United States or one of the aforementioned territories or possessions as required by DSSR section 031.12b. Rather, the claimant was recruited in the United States by the USMC, as evidenced by his DD Form 214, Certificate of Release or Discharge from Active Duty, which shows his “place of entry into active duty” as Charlotte, North Carolina. His subsequent employment with CoTs broke the continuity of employment by a single employer (i.e., “such” employer that recruited him in the United States) for purposes of LQA eligibility under DSSR section 031.12b for employees recruited outside the United States.
Further, even if CoTs had recruited him in the United States or one of its territories or possessions, the claimant was not employed by CoTs under conditions which provided for his return transportation to the United States or one of its territories or possessions. DSSR section 031.12b requires conditions to be in place at the time of employment to specifically ensure return transportation to the United States or another of the enumerated locations. The record includes an October 16, 2008, job offer letter from CoTs and a December 23, 2013, letter from a CoTs human resources official verifying the claimant’s employment with the United States firm. Neither the job offer letter nor the employment verification letter identifies return transportation as a conferred benefit of the claimant’s position with CoTs. DSSR section 031.12b clearly states return transportation must be provided by “such employer” listed in section 031.12b (1) through (4) with whom the individual was employed immediately preceding appointment, which in this case was the CoTs employer.
In his claim request to OPM, the claimant states:
I was appointed to my current position within one year (7 months) of my military retirement date and my military return transportation entitlement was still fully intact. Accordingly, I believe I should be considered to have had “substantially continuous employment” as defined in [DoDI 1400.25-V1250], and used in the DSSR.
The claimant’s statements are in reference to DoDI 1400.25-V1250, Enclosure 2, paragraph 1a, which states:
Under the provisions of section 031.12b of Reference (b), 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, whichever occurs first.
It is clear from the record that the one-year period had not elapsed between the claimant’s military separation and his USMC appointment. However, that his military transportation entitlements were still intact is not relevant for purposes of DSSR section 031.12b because that section specifically refers to the employer “prior to appointment,” which in the claimant’s case was CoTs.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area. If a person is already living in a foreign area, that inducement is normally unnecessary. Furthermore, 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 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). Since an agency decision made in accordance with established regulations as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.
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.