On October 31, 2016, while a Federal service employee in the United States, the claimant applied for his current DA position, which was announced by the agency from October 31 – November 9, 2016.  He was subsequently sent on a temporary duty (TDY) work assignment to Japan from December 2 – 9, 2016 and Singapore from December 10, 2016 – March 10, 2017.  He received a tentative job offer while in Singapore on January 18, 2017, and received and accepted the firm job offer after his return to the U.S. on June 29, 2017.  On June 22, 2017, the claimant was initially determined eligible for LQA in accordance with a September 19, 2013, policy advisory [1].   On August 6, 2017, the claimant was appointed to his current Federal service position as Research Electrical Engineer, GS-850-15.  A review of his LQA in accordance with new guidance, dated January 3, 2018, determined that he is 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 April 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 guidance.  The claimant’s initial LQA determination was based on his status as an employee who was TDY during part of the recruitment process.  The AAR states “A review of his LQA in accordance with the new guidance has determined that he is ineligible for LQA due to his TDY to Japan and Singapore from December 2, 2016 to March 10, 2017, which is over the 90 day TDY limit allowed in the updated guidance.”

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, which may include placing restrictions on offered benefits.  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.

Thus, an employee’s status as a U.S. hire is based on physical residency at the time of recruitment for the position in question.

The claimant asserts his eligibility for LQA as a U.S. hire pursuant to DSSR section 031.11.  He states he resided in the U.S. when he applied for his current DA position and when he accepted the firm job offer.  The claimant states he is a U.S. hire because his previous Federal service position was with the Army Research Laboratory in Maryland.  He also states the agency confirms he was only briefly outside the U.S. when he was sent on a TDY assignment to Japan and Singapore.  The claimant characterizes his TDY assignment as “transitory” and “did not displace his otherwise physical and permanent residency in the U.S.”  He submitted a copy of his itinerary, which confirms the claimant left the U.S for Japan on December 2, 2016, left Japan and arrived in Singapore on December 10, 2016, and arrived back in the U.S. on March 10, 2017.

Regardless of the claimant’s assertions and submissions, the plain language of DSSR section 031.11 of “recruited by the employing government agency in the United States” coupled with the DoDI definition of “U.S. Hire” clearly connotes physical residence in the United States at the time of recruitment.  Whether an employee is deemed to be recruited in or outside the United States is dependent solely on the geographic location of the employee when recruited, not on the existence of a residence at some place other than where the employee is actually located at that time.  We regard “residence” in terms of its commonly-understood meaning and usage as living in a place as one’s usual, customary dwelling place.  Physical residence involves where the employee actually physically resided, regardless of home of record, legal residence, or domicile status.  The record shows the claimant, although he applied for the position while in the United States, was in Japan and Singapore during part of the recruitment process and thus not permanently or physically residing in the United States from the time he applied for employment until and including the date he accepted the formal job offer.  Therefore, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI 1400.25-V1250.

The claimant does not meet the relevant provisions of the DSSR for LQA eligibility; therefore, the claim for LQA is denied.  We note that both the agency and the claimant included discussions analyzing supplemental agency instructions in their submissions.  However, since the DSSR requirements were not met, the agency instructions may not be applied and are irrelevant to the determination of the claimant’s eligibility to receive LQA.

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[1] The September 19, 2013, policy advisory issued by the U.S. Department of Defense concerns the U.S. hire definition.  The policy advisory stated, in part, that "[t]emporary absences from the U.S. for reasons such as vacations, temporary duty assignments...do not alter a person's 'U.S hire' status."  Although rescinded on May 11, 2015, the policy advisory was in force at the time of the claimant's LQA eligibility determination.