Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



10/01/2019

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Date

The claimant is a Federal civilian employee of the U.S. Department of the Army (Army), assigned to the U.S. Army Installation Management Command, U.S. Army Garrison, in Ansbach, Romania.  He requests the U.S. Office of Personnel Management (OPM) reconsider Army’s denial of his request for additional payment of Involuntary Separate Maintenance Allowance (ISMA).  We received the claim request on May 6, 2019, and the agency administrative report on July 1, 2019.  For the reasons discussed herein, the claim is denied.

Prior to his appointment with Army in Romania, the claimant shared a residence with his spouse and occupied a Federal civilian position with the Directorate of Emergency Services, Army, Joint Base Lewis McChord (JBLM), WA.  The claimant was reassigned effective October 28, 2018, from his position with Army at JBLM, to his current position with Army, in Romania, a post where accompanying family members are not authorized.  He completed and signed a foreign allowances application (SF-1190) request for ISMA for his spouse on November 13, 2018.  However, the record indicates that his spouse did not sign the SF-1190, until January 14, 2019.  For this reason, the agency considers January 14, 2019, as the date of submission for the SF-1190, and thus the most appropriate effective date for the grant of ISMA.            

The claimant asserts he was assured the effective date of the ISMA grant would be October 28, 2018.  He also asserts he was not informed of the time sensitive nature of the SF-1190.  The claimant requests his agency pay him $3,016.86 in back pay to cover the 77-day period of time between his appointment October 28, 2018, and January 14, 2019, the date ISMA commenced. 

The agency does not dispute the claimant’s eligibility to receive ISMA.  However, based on Department of State Standardized Regulations (DSSR), the agency disagrees with the claimant’s requested ISMA commencement date of October 28, 2018.

The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. 

Section 261.1 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.  There are three types of SMA:  Involuntary (ISMA), Voluntary (VSMA), and Transitional (TSMA):

Section 261.1 further states:

"Involuntary separate maintenance allowance" (ISMA) may be granted because of dangerous, notably unhealthful, or excessively adverse living conditions at the employee's post of assignment in a foreign area, or for the convenience of the Government.  (See 262.1.).

Section 262.1 of the DSSR states:

An agency may authorize ISMA when adverse, dangerous, or notably unhealthful conditions warrant the exclusion of members of family from the area or when the agency determines a need to exclude members of family from accompanying an employee to the area.  Dependent children, including sisters and brothers, must be under age 21 or incapable of self-support, unless they are attending secondary school (i.e., grades 9-12).  (See also 261.1b and 264.1.)

Section 265.1 of the DSSR states:

Upon Assignment to a New Post, the grant of ISMA or VSMA to an employee in connection with assignment to a new post shall commence as of the latest of the dates on which the:

(1) employee submits SF-1190 application for SMA grant (See also 262.4a and 262.4b); or

(2) employee begins official travel under an assignment order; or

(3) separation from the family member occurs (See also 263.8).

We agree that the claimant meets the basic eligibility requirements to receive ISMA described in DSSR 261 and 262, based on the fact the agency policy did not allow his spouse to accompany him during his tour in Romania. 

However, the facts and circumstances surrounding the claim demonstrate that although the claimant completed, signed, and submitted an SF-1190 to the agency on November 13, 2018, the spouse did not sign the SF-1190 until January 14, 2019.  As the agency points out, an integral part of the grant of SMA is the signature of the spouse for whom the allowance is paid, and is specifically required on form SF1190.  According to agency policy, the date found on the SF1190 is the official date of submission.  Therefore, relying on the explicit language of DSSR 265.1(1), coupled with a reasonable agency policy, the grant of ISMA was not authorized to commence until January 14, 2019, the date his spouse signed and dated the SF-1190.

As stated, the claimant asserts he was assured the effective date of ISMA would be October 28, 2018.  However, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials.  Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law.  See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). 

As it relates to the claimant’s statement, “[a]t no time was I informed by the hiring authority, supervisor…that the SF1190 was a timed sensitive document”, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute.  See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.

The statutory and regulatory languages regarding ISMA are permissive and give agency heads considerable discretion in determining whether to grant ISMA to agency employees.  Thus, agencies have the authority to deny or withhold ISMA payments from an employee when governing regulations justify such actions.  OPM does not question an agency’s decision to deny or withhold ISMA unless the agency’s actions are determined to be arbitrary, capricious, or unreasonable.  Since Army’s decision to withhold ISMA is in accordance with DSSR 265.1, their decision cannot be construed as being arbitrary, capricious, or unreasonable.  Therefore, we find no reason to disturb the agency’s decision and the claim is denied.

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.

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