Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Riyadh, Saudi Arabia
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/11/2018
Date
The claimant is a Federal civilian employee of the Department of the Air Force (AF) in Riyadh, Saudi Arabia. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA) for the period of his overseas tour. We received the claim on January 23, 2018, and the agency administrative report (AAR) on March 1, 2018. For the reasons discussed herein, the claim is denied.
The claimant was appointed to his Federal service position in Riyadh, Saudi Arabia, effective July 31, 2017. The position in Riyadh was announced and accepted as a 12 month unaccompanied tour. On August 31, 2017, the claimant submitted an application to his agency requesting VSMA. He requested VSMA based on his wife’s emotional health as well as concern for their daughter’s well-being. The claimant asserts that his wife was traumatized when she was evacuated out of Saudi Arabia during Operation Desert Shield in 1990. He also claims that his daughter suffered injuries (e.g., a concussion, a tonsillectomy, and shoulder surgery) and his wife’s concern for their daughter’s well-being directly translates to [his] wife’s emotional health. The claimant believes these factors are consistent with the hardship or special needs situations described in the Department of State Standardized Regulations (DSSR). He seeks VSMA and back pay “starting from 30 days after the date of the denial since the letter was not communicated to [him] in a timely manner.”
The claimant’s employing agency denied his request for VSMA in a memorandum dated September 13, 2017, stating “The documentation provided regarding your spouse’s situation does not adequately justify a special need or hardship to authorize VSMA payment.” The agency’s February 26, 2018, report to OPM states “Our office typically approves SMA in instances where, for example, children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. No such compelling hardship was established as part of the SMA request…Our office denies SMA in cases where the request does not reflect a compelling reason or hardship situation beyond the employee’s control. In such cases, we consider the split of the family to be a personal choice which is not sufficient justification to warrant SMA grant rather than special needs or hardship as described by the Department of State Standardized Regulation (DSSR) section 262.2.”
The claimant disagrees with the agency’s denial, stating in his claim request to OPM;
“…my [claimant’s] wife’s emotional health is the basis of my hardship request and why I must appeal the decision denying VMSA. We felt compelled to allow her to stay in the United States while I pursue my career and serve our country. We believe it was right for us to consider the concern for our family(s) well-being, the cultural stress, local environmental factors, and the impact of turmoil resulting from world events in our decision making. I believe these factors are consistent with the hardship or special needs described in the Department of States Standard Regulations”.
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, a separate maintenance allowance (SMA) may be paid to Federal employees in foreign areas. Section 5924(3) of 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 Department of State Standardized Regulations (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…
Section 262.2 further describes VSMA, in relevant part, as follows:
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…
SMA is a discretionary allowance, not an entitlement. 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 to 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. The agency asserts that it approves SMA in instances where children need to complete the current school year before a move to another school, or when a family member requires medical care not available overseas. Here, no such compelling hardship was established. The agency is clear in that it denies SMA in cases where no compelling reason or hardship exists beyond the employee’s control. Where an agency decision is consistent with their established practice in similar situations, it cannot be considered arbitrary, capricious, or unreasonable, and there is no basis on which to reverse the decision. For the reasons stated above, we find no reason to disturb the agency’s decision to deny VSMA and the claim request is denied.
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.