Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Fleet Logistics Center
Department of the Navy
Manama, Bahrain
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/18/2018
Date
The claimant is a Federal civilian employee of the Department of the Navy (Navy), in Bahrain. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of separate maintenance allowance (SMA). We received the claim on March 5, 2018, and the final agency report May 2, 2018.
The claimant was employed as an Information Technology (IT) Specialist duty stationed in Kansas City, Missouri, when he was reassigned to an IT Specialist position located in Bahrain, effective November 27, 2016. After his arrival overseas, the claimant submitted a request for SMA, which was approved by the agency on January 13, 2017. In December 2017, the agency processed an overseas tour extension for the claimant and reviewed the documentation he submitted with his original SMA request to verify that all eligibility requirements were still being met. Here, the agency determined the claimant never met eligibility requirements to receive SMA payments from the beginning because his spouse did not reside with him immediately prior to his assignment in Bahrain.
The agency states “[p]er DSSR [Department of State Standardized Regulation] 263.1, SMA is not warranted when, ‘a family member would not normally reside with the employee, this individual does not meet the definition of member of family.’” It further states the claimant’s documentation show his spouse was permanently residing in California while he was employed in Kansas City for at least one year before his assignment in Bahrain. The agency further states, “[t]herefore, the assignment to Bahrain did not result in an additional expense of maintaining a separate household. The purpose of SMA is not to defray the costs of an existing housing arrangement.”
The claimant does not dispute that immediately prior to his assignment in Bahrain he and his spouse were living separately. However, he asserts that “being employed in undesirable Kansas City was forced upon [him] by the US government,” and that he and his spouse decided that she would remain at the residence in California so she would not have to relocate and could “maintain family and economic stability.” The claimant contends that his “permanent residence” is in California.
The Department of State Standardized Regulations (DSSR) set forth basic eligibility criteria for the granting of SMA. Section 261.1.a of the (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.]
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… 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 Bahrain, in that he had resided in Kansas City while she remained in California for over two years immediately preceding this assignment. Therefore, 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 Bahrain, the plain language of the DSSR is not met, and the claim for SMA 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.
In the claim, the claimant asserts that he made the decision to accept the position based on erroneous information, which created indebtedness to the United States. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990). Therefore, that the claimant decided to accept the position based on being informed he could receive SMA payments does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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.