Washington, DC

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

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/23/2016

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Date

The claimant is a Federal civilian employee of the Department of the Army (DA) in Darmstadt, Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency's denial of living quarters allowance (LQA).  We received the claim request on June 14, 2016, and the agency administrative report on July 21, 2016.  For the reasons discussed herein, the claim is granted.

The claimant applied, was selected for, and accepted the DA position in Darmstadt, Germany, which was advertised for the period January 16 to January 30, 2015, while residing in Belton, Texas, where he was employed by the civilian contractor ManTech International.  After his acceptance and subsequent appointment to the position effective March 7, 2016, he was notified by the Fort Huachuca Civilian Personnel Advisory Center (CPAC) and the Civilian Human Resources Agency (CHRA), North East/Europe (CHRA-NE/E), that he was ineligible for LQA because, as he had reported on his completed "Questionnaire for LQA Determinations," he had traveled to the Republic of Korea (Korea) on a temporary duty (TDY) assignment from April 11 to April 25, 2015.  Specifically, the CPAC review of his Questionnaire noted that he did "not meet the definition of a U.S. hire - was out of the US during the recruitment period."  The Civilian Personnel Directorate, United States Army, Europe (USAREUR), the DA component with final agency decision authority for overseas allowance claims and providing the AAR, endorses the claim, but is apparently prevented from granting it due to guidance received from Headquarters, DA.

The Department of State Standardized Regulations (DSSR) are 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, Volume 1250, dated February 23, 2012, and Army in Europe Regulation (AER) 690-500.592, dated November 18, 2005, in effect during the period in question, implement the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted by the DSSR.

DSSR section 031.11 states LQA may be granted to employees recruited in the United States:

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 these criteria, DoDI 1400.25 defines “U.S. hire” as follows:

U.S. Hire.  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.

Thus, an employee’s status as a “U.S. hire” is based on permanent physical residency at the time of recruitment for the position in question.  We regard the term "reside" in terms of its commonly understood meaning and usage as to live in a place as one's domicile or usual, customary dwelling place, distinguished from a temporary stay of short duration while in a travel, visiting, vacationing, or other clearly transitory status with expected return to one's usual place of residence.  This does not require continual physical presence in the United States during the recruitment process, as long as any short-duration absences do not displace the actual residency.  Conversely, the use of the term "permanent" excludes transitory stays in the United States during the recruitment process falling short of actual residency as qualifying for "U.S. hire" status.  See OPM File Number 15-0018, October 15, 2015; and 16-0015, April 21, 2016.    

The agency confirms that at the time of recruitment, the claimant had resided in the United States since 2012, with only the brief aforementioned work assignment to Korea from April 11 to April 25, 2015, after which he returned to his residence in Texas.  This two-week TDY assignment was of a transitory nature and does not displace his otherwise physical and permanent residency in the United States during the recruitment period.  Thus, the claimant meets DSSR section 031.11, as implemented by DoDI 1400.25, Volume 1250, and its definition of "U.S. hire," in that he is considered to have physically resided permanently in the United States from the time he applied for employment until and including the date he accepted a formal offer of employment.

AER 690-500.592 makes clear that when the provisions of the DSSR and the DoD implementing regulations have been met, the payment of LQA is mandatory upon satisfaction of certain other specified conditions.  Paragraph 7a. states, in relevant part:

a.  LQA Authorization.  LQA is a payment intended to cover substantially all average allowable costs for suitable, adequate lodging and selected utilities.  LQA will be granted for the following APF [appropriated fund] employees:

            (1) Employees recruited in the United States or its possessions for positions at grades GS-09 (or equivalent), WG-11, WL-09, WS-05, and above... Employees who previously vacated an outside the continental United States (OCONUS) civilian or contractor position must have resided permanently in the United States for at least 1 year immediately before accepting the formal job offer.

The use of the mandatory term "will" in relation to the granting of LQA as opposed to the permissive term "may" used in the DSSR means that USAREUR has obligated itself to grant LQA to those individuals who meet the additional conditions.[1]  The position occupied by the claimant for which LQA is requested is at the GS-13 grade level.  Further, although the claimant had previously traveled to Korea on TDY assignment from April 11 to April 25, 2015, he had permanently resided in the United States prior to and since that time.  Therefore, the claimant meets the additional conditions imposed by AER 690-500.592. 

Because the claimant meets DSSR 031.11 and the agency implementing regulations contained in DoDI 1400.25, Volume 1250, and AER 690-500.592, his claim for LQA is granted.

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.

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