Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein Air Base
Department of the Air Force
Ramstein, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/28/2020
Date
The claimant is a Federal civilian employee of the U.S. Air Forces, Europe (USAFE), Ramstein Air Base (AB), Department of the Air Force (AF), in Ramstein, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of a living quarters allowance (LQA) grant. We received the claim on March 19, 2020, and the agency administrative report (AAR) on April 21, 2020. For the reasons discussed herein, the claim is denied.
The claimant retired from active duty in the overseas area (Ramstein, Germany) on October 31, 2019. Prior to his retirement, in August 2019, he applied for a GS-0080-11, Industrial Security Specialist Federal position with AF at Ramstein AB, Germany. In late September 2019, he began working part-time at the Ramstein AB Army and Air Force Exchange Service (AAFES), a non-appropriated fund (NAF) instrumentality. He continued his employment with AAFES through November 11, 2019. On November 18, 2019, the claimant received and accepted a firm job offer for the Federal service position and on November 19, 2019, was appointed to the position.
The claimant was initially determined eligible for LQA based upon the agency’s understanding that he met the intent of the Department of State Standardized Regulations (DSSR) section 031.12 in that he had substantially continuous employment and did not use any of his return transportation allowances in conjunction with his retirement. However, upon closer examination, the agency determined he did not formally meet the “singular employment” criterion in accordance with DSSR 031.12, given the claimant retired from active duty in the overseas area on October 31, 2019 but maintained his previous part-time employment with AAFES through November 11, 2019.
The claimant challenges the agency decision and believes he meets the intent of USAFE Instruction 36-705, Benefits and Allowances for US Employees in USAFE, paragraph 3.2.3.1.1, “in that[he has] had substantial continuous employment with one employer recruited from the United States (US) expressly providing return transportation (DSSR 031.12).” He goes on to state he has had one employer, i.e., USAF, since his PCS to Ramstein, Germany in 2011. The claimant further states “I went directly from the active duty component to the GS civilian component. I did not use any of the authorized transportation allowances in conjunction with my retirement.”
The 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. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of USAFE Instruction 36-705, or other agency implementing guidance may be applied.
DSSR section 031.12 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 States, 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 Germany is attributable to his employment with the AF. The DSSR makes clear that eligibility is established at the time of appointment, i.e., based on circumstances existing prior to the employee’s initial appointment to Federal service. However, prior to appointment, the claimant was employed in a NAF position. The NAF organization recruited him in 2019 from Germany and there is no indication the NAF provided for his return transportation to the United States or its territories or possessions. As such, he no longer retained his status as having been recruited in the United States or one of the enumerated territories or possessions as required by section 031.12b. Thus, the claimant does not meet section 031.12b and on this basis alone is ineligible for LQA. Consequently, the claim is denied. In OPM file number 14-0020, we reached a similar conclusion.
Although the claimant believes he meets the intent of USAFE Instruction 36-705 and provided information attempting to show he has been in substantially continuous employment with one employer, as stated previously, agency implementing guidance is only applied after an LQA applicant fully meets the relevant provisions of the DSSR. Therefore, since the claimant does not meet the requirements in DSSR section 031.12b, we the provisions of USAFE Instruction 36-705 are inapplicable.
The claimant states in his request to OPM that if he was informed during the hiring process that remaining an AAFES employee after his USAF retirement date would negatively impact his LQA eligibility, he would have resigned from his AAFES position prior to his military retirement. The claims jurisdiction of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. Therefore, the claimant’s assertions are inapplicable.
Overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area. If a person is already living in a foreign area, that inducement is normally unnecessary. Furthermore, 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 Code of Federal Regulations (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.