Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Sembach, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/30/2020
Date
The claimant was a Federal civilian employee of the U.S. Army Regional Health Command, Europe, Department of the Army in Sembach, Germany during the claim period. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of voluntary separate maintenance allowance (VSMA). We received the claim request on December 30, 2019, and the agency administrative report (AAR) on March 26, 2020. For the reasons discussed herein, the claim is denied.
The claimant was appointed to an Investigator, GS-1810-12 position with the agency, effective January 7, 2019. In her request for VSMA to the agency, the claimant stated that her spouse remained in the United States to attend aftercare for knee surgery undergone on December 20, 2018, with follow-up care concluded on February 8, 2019. She states that her spouse was physically unable to prepare household goods for packing, to prepare the house for vacating, and to prepare a personally owned motor home for sale until he fully recovered from surgery. She also states that on December 8, 2018, they were involved in a motor vehicle accident requiring her spouse’s attention to resolve the insurance claim and complete repairs necessary to ship the vehicle overseas. The claimant’s spouse joined her in Sembach, Germany on April 10, 2019. Due to the spouse’s delayed travel, the claimant seeks VSMA for the period of January 7, 2019 to April 10, 2019, based on special needs and hardship provided under section 262.2 of the Department of State Standardized Regulations (DSSR). Specifically, she seeks a total recovery of $5,753.22 for offsetting costs for rent, gas and electric, water, and waste incurred during the time her spouse remained stateside.
The agency denied the claimant’s VSMA request by memorandum dated September 6, 2019, stating in part:
While the DSSR § 262.2 allows for VSMA to be granted under such circumstances, i.e., special needs and hardship involving career or family considerations, to include medical issues, the employing agency, in exercising its discretion under the authority found in DSSR § 013, and subsequent delegations, only authorizes VSMA in instances when children are required to remain in the United States in order to afford them the opportunity to complete their semester or the school year, while their sponsoring parent assumes his/her duties in the overseas area or when family members need to cope with significant short-term medical conditions. While [claimant’s spouse] had undergone knee surgery in December 2018, other issues unrelated to his knee surgery required attending to which cannot be favorably considered. What is more, based on the record available, [claimant] received her tentative job offer for her position, under a non-competitive action, on 06 September 2018; her entry-on-duty date was established on 20 December 2018 for 07 January 2019. Her husband’s knee surgery took place on 20 December 2018, with follow-on care ending on 08 February 2019. [Claimant’s spouse] did not travel to Germany until early April 2019. As [claimant] stated in her correspondence, her spouse’s delay travel was for not only medical but also personal reasons. The agency does not authorize VSMA in instances when the dependent spouse remains at the family’s residence for appears chiefly personal reasons that cannot be reconciled with the regulatory framework.
The claimant disagrees with the agency’s decision, stating in her claim to OPM:
The denial memorandum further states that issues unrelated to [claimant’s spouse’s] knee surgery cannot be favorably considered. With this in mind, I submit that the medical condition was the catalyst for the delay of everything else. The issues described are not separate, but combined as a whole that amounted to the three-month delay.
The agency expanded on its decision for denying VSMA in its AAR, stating:
Moreover, even if we were to have favorably considered [claimant’s] request, we would have been inconsistent with the provisions of the DSSR § 262.4., which requires, for VSMA purposes, a minimum separation from family members of 90 consecutive days. The exceptions identified in the said section of (1) lack of adequate medical facilities, or (2) family members have to be detained in the United States for medical clearance, or (3) children having to be complete the school year, which would reduce the minimum separation period from 90 days to 30 days, are not applicable to [claimant’s] case.…[claimant’s spouse] underwent knee surgery on December 20, 2018; [claimant] departed the United States on January 07, 2019; [claimant’s spouse’s] final consultation with his physician was on February 08, 2019. Thus, the time [clamant and spouse] were separated for medical issues that he needed to attend to was less than 90 days. The time between February 09, 2019 and [claimant’s spouse’s] final departure to join his spouse in Germany was taken up with issues unrelated to his medical condition.
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. See DSSR section 013. Thus agency implementing instructions may be more restrictive, but not more permissive, than the DSSR; i.e., may impose additional limitations on the granting of a separate maintenance allowance (SMA) but may not extend benefits that are not otherwise permitted by the DSSR. Therefore, an SMA applicant must fully meet relevant provisions of the DSSR before the supplemental requirements of agency implementing guidance may be applied.
The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260. Section 262 Circumstances Warranting SMA of the DSSR states in relevant part:
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 because of [certain qualifying circumstances] (emphasis added). As relevant to this claim, Voluntary SMA (VSMA) is one of the qualifying circumstances for granting SMA. Section 262.2 Voluntary SMA (VSMA) – For Special Needs or Hardship of the Employee, states in relevant part:
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… [emphasis added]
Section 262.4 Separation from Family Member states in relevant part:
a. For Voluntary SMA, the separation from the family member must reasonably appear to require a separation for at least 90 consecutive calendar days and be for conditions described in Section 262.2, except as provided below:
Exceptions: The 90-day period may be reduced to 30 days and the change-of-election provisions of 264.2(2) do not apply when:
(1) adequate medical facilities in the area are not available for pre- and post-natal care; or
(2) family members are detained in the United States for medical clearance; or
(3) children must begin or complete a school year before the employee has arrived at post or after the employee has departed on transfer to another post in a foreign area.
Agencies may authorize VSMA for special needs or hardship of the employee if the DSSR requirements for authorization are met. In this instance, the authorization requirements of DSSR section 262.4(a) were not met. Based on the facts provided, the claimant was separated from her spouse due to his medical condition from the time she left to the overseas assignment on January 7, 2019, to the time her spouse’s follow-up care concluded on February 8, 2019. The record does not contain any documentation to show that any of the exceptions described under DSSR section 262.4(a)(1)-(3) apply to the claimant’s situation; therefore, the time of separation to qualify for VSMA must be 90 consecutive calendar days, not 30. Thus, the claimant does not meet the time requirements described under DSSR section 262.4(a) of being separated for at least 90 consecutive calendar days due to conditions described in DSSR section 262.2. As the claimant does not meet the relevant provisions of the DSSR 262.4(a), the claim for VSMA is denied.
We note that the agency included discussion analyzing supplemental agency instructions in its submissions (i.e., Army in Europe Regulation 690-500.592) with respect to the provisions of DSSR 262.2. However, this claim is denied based on failure to meet the requirements of DSSR section 262.4(a); thus, agency implementing requirements are not applicable.
SMA is a discretionary allowance, not an entitlement. The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees. Thus, an 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). In this case, the claimant has failed to do so. We find no basis for reversing the agency decision denying the claim.
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.