Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Activity
Department of Defense
Okinawa, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/27/2018
Date
The claimant is a Federal civilian employee of the Department of Defense (DoD) in Okinawa, Japan. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of separate maintenance allowance (SMA). We received an acceptable claim request on February 3, 2017. We received the agency administrative report on February 23, 2017. For the reasons discussed herein, the claim is denied.
The claimant was appointed to an Investigative and Inspection Specialist position with the Office of Investigations and Internal Review, DoD Education Activity (DoDEA), located in Okinawa, Japan, effective January 8, 2017. In his claim to OPM, he states he is “entitled to ISMA because [his] agency has refused, for the convenience of the Government, to include [his] spouse on [his] orders because she is a U.S. Government employee, even though she is not subject to worldwide deployment.” He also states, “If not ISMA, I believe I qualify for VSMA based on the need to maintain two households, on [sic] in Okinawa and one in Virginia.”
The claimant’s employing agency denied his requests for Involuntary Separate Maintenance Allowance (ISMA) and Voluntary Separate Maintenance Allowance (VSMA) “based on the fact that his spouse remained in the United States due to career reasons”, and citing section 263.2 of the Department of State Standardized Regulations (DSSR), which states SMA is not warranted “[w]hen the spouse or domestic partner of an employee is either a member of the military services or is a U.S. Government civilian employee subject to worldwide assignment availability.”
The Overseas Differentials and Allowances Act, as amended and codified in Section 5921 – 5928 of title 5, United States Code (U.S.C.), provides that, under regulations prescribed by the President, SMA may be paid to Federal employees in foreign areas. Section 5924(3) of title 5, U.S.C., states that SMA may be granted to assist an employee who is compelled or authorized, because of dangerous, notably unhealthy, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because of special needs or hardship involving the employee or the employee’s spouse or dependents, to meet the additional expenses of maintaining, elsewhere than at the post, the employee’s spouse or dependents, or both.
By Executive Order, the President delegated this authority to the Secretary of State, who issues the DSSR governing overseas allowances and differentials. The DSSR further delegates the authority to grant SMA to the heads of Federal agencies. Section 262 of the DSSR states:
SMA may be granted to an employee whenever the head of agency determines that the employee is compelled to maintain any or all members of family elsewhere than at the foreign post of assignment because of the following circumstances:
Section 262.1 Involuntary SMA (ISMA) – For the Convenience of the Government:
An agency may authorize ISMA, when adverse, dangerous, or notably unhealthful conditions warrant the exclusion of members of family from the area or when the agency determines a need to exclude members of family from accompanying an employee to the area.
Section 262.2 Voluntary SMA (VSMA) – For Special Needs or Hardship of the Employee:
An agency may authorize VSMA when an employee requests VSMA for special needs or hardship prior to or after arrival at post for reasons including but not limited to career, health, educational or family considerations for family members…
The language applying to SMA in 5 U.S.C. 5924 is permissive rather than mandatory, and the language in the DSSR is similarly permissive. By the use of the permissive term “may” as opposed to the mandatory terms “will,” “shall,” or “must” in relation to SMA, agencies are granted discretionary authority in allowing or disallowing SMA in individual cases. Under statutes that vest a degree of discretion in administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with the established facts as to render its conclusion unreasonable.
SMA may be granted only in those cases where the employee would otherwise be “compelled” to maintain a separate household for a family or family member and thus would be burdened with assuming the additional expenses associated therewith. The claimant must be “compelled” by those situations covered under Sections 262.1 for ISMA and 262.2 for VSMA of the DSSR. Based on a comprehensive review of the record, and an understanding that the claimant’s spouse chose to remain in the United States until she retired rather than accompanying the claimant to Japan, we are unpersuaded that the claimant was “compelled” to leave his spouse in the United States and maintain a separate household for her under circumstances that would support eligibility under Section 262.1 for ISMA. Further, the claimant offers no evidence that presents a “special need or hardship” to support eligibility for VSMA under Section 262.2 of the DSSR. Instead, it appears his requests for SMA were based on a personal decision for his wife to remain in the United States, rather than a compelling reason for the family separation. Therefore, based on the record, we find no reason to disturb the agency’s decision to deny SMA.
DSSR section 263.2 further disallows SMA in those circumstances "[w]hen the spouse or domestic partner of an employee is either a member of the military services or is a U.S. Government civilian employee subject to worldwide assignment availability." There is no documentation in the claim record establishing the position occupied by the claimant’s spouse was or was not subject to “worldwide assignment availability.” However, we need not address this issue further as the claim is disallowed for the reasons discussed above.
As previously discussed, SMA is a discretionary allowance, not an entitlement. The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees. Thus, an agency may deny SMA payments 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). In this case, the claimant has failed to do so. Since an agency decision made in accordance with its discretionary authority 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 the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.