Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Manama, Bahrain
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/08/2017
Date
The claimant is a Federal civilian employee of the Department of the Navy (Navy), U.S. Fleet Forces Command, in Manama, Bahrain. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA) to support his spouse. We received the claim on May 15, 2017, and the agency administrative report (AAR) on July 11, 2017. For the reasons discussed herein, the claim is denied.
While residing in the United States, the claimant applied and was selected for the position of Program Manager, GS-340-15, with Navy located in Manama, Bahrain. In its AAR to OPM, the agency states the claimant was offered a 24-month accompanied assignment but he elected an 18-month unaccompanied assignment in Manama, which began on October 4, 2015. Prior to his arrival, the claimant submitted a VSMA request stating that he would be separated from his spouse during his overseas assignment and would be maintaining a separate household for her. He included a copy of Standard Form (SF) 1190, Foreign Allowances Application, Grant and Report, signed by himself on July 29, 2015, and by his spouse on October 6, 2015.[1] The claimant’s request was forwarded to the Bahrain Human Resources Office (HRO) and subsequently submitted to the Navy Office of Civilian Human Resources (OCHR) for approval or disapproval on January 11, 2016.
OCHR denied the claimant’s VSMA request in an email dated January 11, 2016, stating the claimant “does not present a compelling reason why his spouse did not accompany him to Bahrain” and asked “[h]ow long has she resided in Georgia?” The claimant submitted a second VSMA request, which the Bahrain HRO forwarded to OCHR for approval or disapproval on July 4, 2016. On July 27, 2016, Bahrain HRO requested “relevant supporting documentation” from the claimant regarding the reasons why OCHR denied his first VSMA request as stated above. The claimant responded in an email on the same date stating his spouse would have to leave her “employment” and their daughter in order to accompany him and that his spouse would not receive “similar” medical care in Bahrain for a medical issue. The claimant also stated that his spouse did not relocate to Fort Belvoir, the claimant’s place of employment immediately before Bahrain, because of her “employment” and it “was not a HHG [household goods] move” and he has maintained a residence for his spouse and daughter in Georgia since 2005. OCHR denied the claimant’s second VSMA request in an email dated July 27, 2016, stating that “his dependents have normally not resided with him since at least March 2012 (when employed in Charleston, SC then to DC Metro area in June 2014).”
The Commander, Navy Region Europe, Africa, Southwest Asia issued a final agency decision denying the claimant’s VSMA request by memorandum dated March 3, 2017, stating “DSSR [Department of State Standardized Regulation] section 263 describes circumstances under which SMA is not warranted, including section 263.1, wherein ‘[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family,’ and SMA would thus not be allowable.”
The claimant asserts that he relocated several times with his Federal civilian positions because of Department of Defense Base Realignment and Closure actions, which includes his Fort Belvoir position. He asserts he was not authorized relocation funding for his spouse and daughter anytime his position relocated and so he retained the residence in Georgia for them. The claimant also asserts his spouse and daughter depend on him to maintain their residence and working and residing stateside reduces the financial burden by stating that if he “was not stationed in Bahrain I would be able to reside periodically with my family during leave, vacations, weekends, and approved telework agreements.”
The DSSR set forth basic eligibility criteria for the granting of SMA. Section 261.1.a of the Department of State Standardized Regulations (DSSR) states:
Separate maintenance allowance (SMA) is an allowance to assist an employee to meet the additional expenses of maintaining members of family elsewhere than at the employee’s foreign post of assignment. [Italics added.]
VSMA is a type of SMA which, under DSSR section 261.1.a.(2), may be granted to an employee who personally requests such an allowance, based on special needs or hardship involving the employee or family member(s). VSMA is further defined in DSSR section 262.2, which states:
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 as defined at DSSR 040m.
DSSR section 261.2 describes the purpose of SMA as follows:
SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below [one of which being where VSMA is authorized for special needs or hardship of the employee] to maintain a separate household for the family or a member of the family. [Italics added.]
DSSR section 263 describes several circumstances under which SMA is not warranted, including section 263.1, wherein “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family,” and SMA would thus not be allowable.
The intent of the regulations is clearly that SMA 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 be burdened with assuming the additional expenses associated therewith, and not where it would merely defray the costs of an existing housing arrangement. In this case, the claimant acknowledges that he and his wife were already maintaining two separate residences when he accepted his assignment in Manama, in that he had resided in South Carolina and Virginia while she remained in Georgia for over seven years immediately preceding this assignment. Therefore, regardless of any consideration of whether the claimant “normally” resides with his spouse, the operative issue is whether his assignment in Bahrain imposed “additional expenses” of maintaining a separate household that would not otherwise have been incurred. See B-192267.2, Matter of Carl M. Bauer, February 17, 1989. As the claimant did not incur any additional expenses arising from his assignment in Manama, the plain language of the DSSR is not met, and the claim for VSMA is accordingly denied.
The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees. Thus, the 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). 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.
[1] This version of the SF 1190 was provided by the agency in their AAR and it appears to be the one reviewed by the Navy Office of Civilian Human Resources (OCHR) in making the claimant’s VSMA determination based on OCHR’s response. The claimant provided to OPM two other versions of the SF-1190 forms containing different information.