Washington, DC

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

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


12/13/2017

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Date

The claimant is a Federal civilian employee of the Department of the Army (DA), in Wiesbaden, Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of living quarters allowance (LQA).  Specifically, he requests that OPM authorize a LQA retroactive to July 13, 2015, because he contends he was a U.S. hire with U.S. residency and thus met the requirements of Section 031.11 of Department of State Standardized Regulations (DSSR).  We received the claim on September 20, 2016, and the agency administrative report (AAR) on January 9, 2017.  For the reasons discussed herein, the claim is denied.                   

The claimant was appointed to a Federal service position effective July 13, 2015, as an Exercise Planner, GS-301-12, with the MSE U.S. Army Europe, Operation Sustainment Directorate, in Wiesbaden, Germany.  He was determined ineligible for LQA at the time of recruitment because he did not meet eligibility provisions in DSSR section 031.11 in connection with DoDI 1400.25, Volume 1250, which permits the granting of LQA to employees recruited in the United States.   

Regarding the claimant’s ineligibility for LQA, the agency states in its AAR: 

Mr. Scott M. Safer applied for the position of Exercise Planner, GS-0301-12, with the MSE U.S. Army Europe, Operation Sustainment Directorate, in Wiesbaden, Germany, when it was announced between January 30, 2015, and February 9, 2015.  At that time, Mr. Safer temporarily resided in Mandan, North Dakota, following his retirement from the military service at Fort Leavenworth, Kansas, effective January 31, 2015.  However, Mr. Safer applied for the position while he was traveling in Germany and the Netherlands between February 1, 2015, and February 26, 2015.  A tentative job offer was extended to Mr. Safer on May 26, 2015, which he subsequently accepted.  Mr. Safer completed an LQA Questionnaire in which he advised that he was on vacation with his family in Europe at the time he applied for the position, but returned to a residence in Mandan, North Dakota, where he accepted the offer.  As a result,.….the CHRA-NE/E LQA cell determined him ineligible for LQA for not meeting the provisions of the DSSR Section 031.11 in connection with the DoDI 1400.25-V1250, as an employee recruited in the U.S., commonly referred to as “U.S. hire.”  The rationale for denying Mr. Safer eligibility was that he was on vacation in Germany and the Netherlands during the recruitment process, in his case, when he applied for the position.  Mr. Safer accepted the final job offer without LQA and transferred from the U.S. to Wiesbaden, Germany, to be appointed to his current position.  

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.  DoDI 1400.25, Volume 1250, dated February 23, 2012, in effect when the claimant was appointed, implement the provisions of the DSSR for DoD and DA employees.  Because LQA is a discretionary allowance, agency implementing regulations may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA but may not extend benefits that are not otherwise permitted by the DSSR.  Therefore, an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.  

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, Volume 1250, 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. 

The claimant believes he was a U.S. hire, and thus eligible for LQA under DSSR section 031.11.  He states he retired from the U.S. Army on January 31, 2015, from Fort Leavenworth, Kansas, and had served at Fort Drum, New York, from December 2010 to May 2013, prior to his assignment to Fort Leavenworth.  He indicates that after his retirement he moved to his father’s residence in Mandan, North Dakota[1], but on his Certificate of Release or Discharge from Active Duty (DD 214) he lists his father-in-law’s mailing address in Germany where his mail is to be sent after separation.  In addition, instead of shipping his household goods to his father’s residence in North Dakota, he placed them in storage at Fort Leavenworth after his separation from military service.  In response to a June 11, 2015, email from the agency asking why he designated an address in Germany for his mailing address after separation in item 19a of his DD 214, the claimant responded via email of June 12, 2015, as follows:  

“The mailing address after separation on my DD 214 is the address of my father-in-law as my wife originally comes from Germany.  My understanding at the time of the DD Form 214 was that this address is where I could reliably receive correspondence after separation, not necessarily a residence.  My original plan at the time of the DD Form 214 (December 2014), was that I was going to have a job overseas once I retired for a few years, either with the Army in Germany or a defense contractor in the Middle East.  In either case my wife was planning to eventually move back to the area near where her family is from.  Unfortunately, the time it took to receive a job offer through USAJOBS or with a defense contractor exceeded my terminal leave in the Army and vacation time with the family.  Thus I have resided with my father since I retired from the Army, hoping to get a job offer or other overseas location.”   

The claimant’s account and information in the record does not establish that after retiring from the military he physically resided permanently in the United States during the entire recruitment process per the definition of “U.S. hire” in DoDI 1400.25, Volume 1250; i.e., from when he initially applied for through the time he accepted the position in question.  While the claimant’s vacation to Germany and the Netherlands during February 2015 was clearly of a temporary, transitory status and in itself would not have precluded his potentially qualifying as a U.S. hire (See OPM Decision Number 15-0018, of October 15, 2015) based on his own statements and actions it does not appear that he intended to physically reside permanently at his father’s residence making it his usual and customary dwelling place.  It is apparent from the record that the claimant viewed his father’s home as a temporary residence (as opposed to his physically residing permanently in the U.S.) while he applied for and secured overseas employment in either Germany or the Middle East.  This intention is evident by the facts that the claimant designated a mailing address in Germany after his separation from the military on his DD 214, he placed his household goods in storage after retiring, his wife was planning to move back to Germany to be near her family, and his intention after military retirement was to immediately apply for overseas employment.  In addition, given the lengthy recruitment process the claimant reluctantly extended his temporary residency awaiting a job offer which he finally received on May 26, 2015.  For the preceding reasons we are unable to find a basis for disturbing the agency’s decision.    

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).  As discussed previously, the claimant has failed to do so.  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.

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