Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/06/2020
Date
The claimant is a Federal civilian employee of the Department of the Army (Army) in Wiesbaden, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency's denial of living quarters allowance (LQA). We received the claim request on November 25, 2019, and the agency administrative report on February 11, 2020. For the reasons discussed herein, the claim is denied.
On February 6, 2018, while residing in Alaska, the claimant applied for a Logistics Management Specialist, GS-0346-12, position with Army duty stationed in Wiesbaden, Germany. He also pursued other avenues of employment while residing in Alaska, and as a result he was offered, and accepted, a position with U.S. firm CWU, Inc., for a position duty stationed at Guantanamo Bay, Cuba. He occupied his position with CWU, Inc., from July 3, 2018, to January 11, 2019. On September 10, 2018, while still employed at Guantanamo Bay, the claimant was offered his current Federal civilian position. On January 8, 2019, the claimant travelled from Cuba back to the United States. He was appointed to his current Federal position effective February 4, 2019.
During the onboarding process, the claimant was informed by the agency that he was ineligible for LQA for not meeting the provisions of the Department of State Standardized Regulations (DSSR) sections 031.11, as an employee recruited in the United states, nor under 031.12a and b, as an employee recruited outside of the United States. Nonetheless, the claimant accepted the position and eventually transferred from his home of record in Alaska to the position in Wiesbaden, Germany under official government travel orders.
The claimant believes that he should have been considered eligible to receive LQA under DSSR section 031.11, because he believes Guantanamo Bay is a recognized possession of the United States, therefore he was recruited in the United States.
The DSSR set forth basic eligibility criteria for the granting of LQA. Agency implementing guidance such as that contained in Department of Defense Instruction (DoDI) 1400.25-M, Volume 1250, may impose additional requirements, but may not be applied unless the employee has first met the basic DSSR eligibility criteria.
DSSR section 031.11 states LQA may be granted to employees recruited in the United States:
Quarters allowances 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 Rico, 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:
U.S. Hire. A person who physically resided permanently in the United States or the Commonwealth of 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 based on physical residency at the time of recruitment for the position in question. Thus, an employee must be physically residing in the United States from the time of application until acceptance of a formal job offer. Although the claimant applied for the position while residing in Alaska, he was employed overseas in Cuba when he received a firm job offer from Army. Thus, he was residing outside of the United States for portions of the recruitment process and was 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 eligible for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
Additionally, OPM finds no merit in the claimant’s assertion that he should have been considered eligible for LQA under DSSR section 031.11, because he was employed on the Unites States naval base in Guantanamo Bay, Cuba. There is no evidence that Guantanamo Bay, Cuba is a recognized possession of the United States for which LQA may be authorized. OPM has consistently rejected this notion as we have found nothing in statute or regulation to support it.
The claimant also does not meet the eligibility requirements for LQA under DSSR section 031.12. It states 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.
Relative to these criteria, DoDI 1400.25-V1250, defines “substantially continuous employment” as follows:
Former military and civilian members shall be considered to have “substantially continuous employment” for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired or separated member or employee uses any portion of the entitlement for Government transportation back to the United States, whichever occurs first.
Relying on the explicit language of DoDI 1400.25-V1250, the claimant lost eligibility for LQA under DSSR 031.12(b) when he used his transportation entitlement back to the United States. The facts surrounding the claim clearly demonstrate that, on January 8, 2019, the claimant returned to the United States from Cuba using his transportation benefits. There is no dispute here. In fact, on February 26, 2020, in an email from the claimant to OPM he states: “The company [CWU] FULLY funded my return transportation from Guantanamo Bay to Jacksonville, Florida” and provided a copy of the MILAIR reservation. Therefore, upon his return to the United States he could no longer be considered to have been “substantially continuous employed” as described in the DoDI 1400.25-V1250, which is based on the premise that, prior to appointment, the employee is physically located overseas and employed by one of the qualifying entities with intact return transportation benefits to the United States. If any portion of an employee’s transportation entitlement is used prior to appointment, the employee will no longer be considered “substantially continuous employed.” Once the claimant used his transportation entitlement with CWU, Inc., to return to the United States, he was longer substantially continuously employed as defined in the DoDI, and thus ineligible to receive LQA.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. 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 deny LQA to 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 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). 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, and therefore 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.