Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Africa Command
Stuttgart Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/18/2018
Date
The claimant is a Federal civilian employee of U.S. Africa Command, Department of the Army (DA), in Stuttgart, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request for living quarters allowance (LQA). We received the claim on October 6, 2016, and the agency administrative report (AAR) on December 19, 2016. For the reasons discussed herein, the claim is denied.
Between March and September 2014, the claimant was employed as a contractor with the U.S. firm Honeywell Technology Solutions, Inc. (Honeywell), at Camp Leatherneck, Afghanistan. The claimant was appointed to a Federal service position effective February 23, 2015, as a Joint Operations Plans Specialist, GS-301-13. She was determined ineligible for LQA at the time of recruitment because she 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.
The agency determined the claimant ineligible for LQA before the firm job offer was extended. The agency explains in its AAR to OPM:
….While Ms. Rubeck was recruited by a U.S. firm in the United States at her permanent residence where she resided for an extended period of time for employment in Afghanistan, her assignment to the overseas area, albeit for a six-months [sic] duration only, may not be characterized as TDY [temporary duty] within the meaning of OASD’s [Office of the Assistant Secretary of Defense] advisory of September 2013 and, more importantly, HQ, USAREUR’s [Headquarters, U.S. Army Europe] implementing instructions of said advisory of December 2013. Rather, her employment with Honeywell Technology between March and September 2014 was exclusively for that assignment in Afghanistan without a follow-on assignment with that firm in the U.S. after completion of the overseas duty. As a result, the agency could not consider her eligible for LQA under the clarified “U.S. hire” definition of an employee recruited in the United States under the DSSR § 031.11.
Alternatively, Ms. Rubeck also cannot be considered eligible for the allowance under the provisions of the DSSR § 031.12a and b., as an employee recruited outside the United States, as she used the travel entitlement that, at least in part, provided by Honeywell Technology, to return her to the United States. Since all of the aspects of the DSSR § 031.12b must be met, which are not the case here, Ms. Rubeck’s hiring circumstances render her ineligible for LQA.
The claimant asserts her eligibility for LQA as a “U.S. Hire,” explaining her rationale in her claim request to OPM:
While deployed, I still maintained my driver’s license and home in NC [North Carolina]. Based on the description of the September 13, 2013 memo of what constitutes a U.S. hire, I believe it should have been used as a qualifying factor in the decision of LQA.
The Department of State Standardized Regulations (DSSR) contain 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 under 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.
LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:
Quarters allowance 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:
A person who resided permanently in the United States, or 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.
An employee’s status as a “U.S. hire” is thus based on physical residency at the time of recruitment for the position in question. Hence, an employee must be physically residing in the U.S. from the time of application until acceptance of a formal job offer. In this case, the claimant was employed by Honeywell at Camp Leatherneck, Afghanistan, from March 2014 to September 2014. The claimant applied for her Joint Operations Plans Specialist position located in Germany in June or July 2014. The claimant returned to the United States in September 2014, which is before the claimant accepted the firm job offer on November 24, 2014. The claimant was employed and resided in Afghanistan for portions of the recruitment process and was not permanently or physically residing in the United States from the time she applied for employment until and including when she accepted the formal job offer. Therefore, she may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
The claimant attempts to characterize her employment with Honeywell in Afghanistan as “temporary,” thus meeting LQA eligibility requirements by reference to the September 19, 2013, policy advisory issued by the U.S. Department of Defense regarding the U.S. hire definition. The policy advisory stated, in part, that “[t]emporary absences from the U.S. for reasons such as vacations, temporary duty assignments…do not alter a person’s “U.S. hire” status.” Although rescinded in May 2015, the policy advisory was in force at the time of the claimant’s LQA eligibility determination. The agency, for purposes of explaining the inapplicability of the advisory to the claimant’s situation, cites their DA U.S. Army Europe’s implementation of the policy advisory’s statement that private sector temporary duty needs to be “…performed away from the employee’s normal, daily duty station identified in their employment contract” and “[a]n individual recruited in the United States to work for a U.S. firm at a Permanent Duty Station overseas without a specifically identified return or follow-on assignment stateside normally is not considered a U.S. hire.” In other words, the plain meaning of a temporary duty assignment is a travel assignment to a location other than the employee’s permanent duty station. In such a situation, there is an identifiable permanent duty station and a temporary duty station to which the employee is assigned on a time-limited basis. In contrast, Honeywell Technology Solutions, Inc., hired the claimant to work exclusively in Afghanistan, thus the characterization of that locale as a temporary duty station would be inappropriate. Furthermore, the duration of her estimated six month assignment to Afghanistan for the Honeywell would not be indicative of an absence from the United States of a temporary or short-term nature. We conclude the policy advisory is inapplicable to her situation as her absence from the United States is inconsistent with that of a vacation, temporary duty assignment, or other temporary absence described by the September 2013, policy advisory.
The claimant is also ineligible for LQA under DSSR section 031.12. It 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. [Italics added.]
Applying DSSR section 031.12, the claimant meets section 031.12a because her presence in Afghanistan is attributable to her employment with the DA. DSSR section 031.12b specifies the conditions under which employees recruited outside the United States may be granted LQA. In the claimant’s case, the recruitment process began while she was living and working in Afghanistan and applied for the position but continued and concluded after she had returned to the United States, where she received and accepted the temporary and firm job offers. Thus, upon her return to the United States, she could no longer be considered to have been recruited outside the United States for purposes of section 031.12b.
The DoDI 1400.25 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 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.