Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Army Corps of Engineers
Department of the Army
Pyong Taek, Republic of Korea
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/05/2019
Date
The claimant is a Federal civilian employee of the U.S. Army Engineer District, Far East, U.S. Army Corps of Engineers (ARCE), Department of the Army (DA), in Pyong Taek, Republic of Korea (Korea). He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of living quarters allowance (LQA). We received the claim on July 10, 2018, and the agency administrative report (AAR) on September 21, 2018. For the reasons discussed herein, the claim is denied.
On July 18, 2016, while deployed to Korea as a military reservist, the claimant applied for a Construction Control Representative, GS-0809-11, position with ARCE, with duty station in Pyong Taek, Korea. The claimant returned to the U.S. in September 2016, where he was selected for the same position, and accepted on October 21, 2016. Prior to his appointment, the claimant submitted a Questionnaire for Overseas Benefits Determination, signed November 28, 2016. On December 14, 2016, the claimant was initially determined eligible for LQA in accordance with a Department of Defense policy advisory, dated September 19, 2013. He was appointed to the position, effective January 23, 2017. However, the agency conducted a review of his LQA in accordance with new guidance, dated January 3, 2018, and determined that he was ineligible for LQA. In a memorandum, dated April 13, 2018, the claimant was notified he did not meet the new LQA eligibility criteria and his LQA would be terminated in June 2019. The claimant requests that OPM restore the original LQA eligibility determination.
The agency contends that the claim should be disallowed because the claimant is not eligible for LQA under the applicable rules and regulations. It states “The initial determination of [claimant’s] LQA, made on December 14, 2016 was based on his status as a military reservist who was deployed to Korea during the recruitment process. A review of his LQA in accordance with the new guidance has determined that he is ineligible for LQA because he was deployed to Korea as a reservist from March 12, 2016 to September 5, 2016.”
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, 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 which connotes physical presence in the United States during the recruitment process rather than maintenance of a physical or legal residence at some place other than where the employee was actually located at that time. 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 issued U.S. military reactivation orders for an assignment in Korea, from March 12, 2016, to September 15, 2016, as shown in his reactivation orders and Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty. The agency states the claimant applied for his position in July 2016, while in Korea. Additionally, in the Overseas Benefits Questionnaire, completed and signed by the claimant, he confirms that he was not physically in the U.S. or a U.S. territory/ possession when he applied for the ARCE position. However, in his claim to OPM, the claimant asserts he returned to the U.S. on September 4, 2016, and applied for his Federal civilian position via email on September 5, 2016. In support of his assertion, the claimant submitted a copy of an email, dated September 5, 2016, sent from an account bearing his name that stated only “[agency representative], I would like to apply for VRA appointment to a Construction Representative position.” This email, alone, does not qualify as an application for the Federal employment with ARCE, nor does it prove where the claimant was physically located when it was sent. Where the record presents a factual dispute, the burden of proof is on the claimant to establish the liability of the United States, and where the agency’s determination is reasonable, OPM will not substitute its judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995. Equally important, the responses given by the claimant to the questions in the Overseas Benefits Questionnaire referenced above support the agency’s position the claimant applied for his position in July 2016, while in Korea. In view of the foregoing, the claimant may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
The claimant also does not meet the eligibility requirements 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 State, 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.]
The claimant meets section 031.12a because his presence in Korea is attributable to his 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 when he was in Korea and applied for the position but continued and concluded after he had returned to the United States, where he received and accepted the firm job offer. Thus, upon his return to the United States on military deactivation orders, he could no longer be considered to have been recruited outside the United States for purposes of section 031.12b and the employment conditions it describes, which are based on the premise that, prior to appointment, the individual is employed overseas by one of the qualifying entities with return transportation benefits to the United States.
We also considered whether or not the claimant qualified as a U.S. Hire under section 031.15 of the DSSR. It states:
Notwithstanding the provisions of Section 031.12, quarters allowances prescribed in Chapter 100 may be granted to employees who, immediately prior to appointment or assignment to the position for which recruited, were deployed or employed in a combat zone (see definition in Section 040t) supporting contingency operations by:
1) the United States Government, including its Armed Forces; or
2) a single United States firm, organization, or interest not immediately preceded by any prior such employment overseas; or
3) an international organization in which the United States Government participates; and
immediately prior to meeting one of the above circumstances, were customarily resident in the United States, its territories, or possessions, or had met one if the above conditions and returned to the United States, its territories, or possessions during recruitment.
DSSR section 031.15 specifies the conditions under which employees who were deployed or employed in a combat zone may be granted LQA. In the claimant’s case, he was physically residing in the U.S. immediately prior to being appointed to his ARCE position. Prior to that, he was issued U.S. military reactivation orders for assignment to Korea, which does not meet the DSSR’s definition of a combat zone.
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.