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


03/09/2021

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Date

The claimant is a Federal civilian employee of the Air Force in Europe Command, U.S. Department of the Air Force (AF), stationed at Ramstein Air Base (AB), Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarters allowance (LQA).  We received his claim on September 10, 2020, and the agency administrative report (AAR) on October 8, 2020.  For the reasons discussed herein, the claim is denied.

The claimant entered active duty military service with AF in September 2017.  He separated from active duty in the overseas area (Ramstein, Germany) on May 24, 2020, and began working for a contractor, Booz Allen Hamilton (BAH) on May 26, 2020.  While residing in Germany and working for BAH he applied for, was selected, and subsequently appointed to his current Federal service position, effective September 28, 2020.  At the time of his appointment, the agency determined the claimant was not eligible for LQA because he did not meet the eligibility requirements in the Department of State Standardized Regulations (DSSR), section 031.12.  The agency explained in its August 14, 2020, memorandum that because the claimant worked for 2 different employers since arriving overseas, he could not meet the “singular” employment condition found in the DSSR 031.12b. 

The claimant challenges the agency’s decision to deny him LQA.  He asserts he was unable to meet DSSR requirements because of travel restrictions issued by the Department of Defense (DoD) Secretary of Defense Memorandum, (i.e., DoD Response to Coronavirus Disease 2019 [COVID19] – Personnel Movement and Travel Restriction), dated April 20, 2020.  That memo states in pertinent part:

All DoD service members will stop movement, both internationally and domestically, while this memorandum is in effect.  All DoD civilian personnel, and dependents of DoD Service members and DoD civilian personnel, whose travel is Government-funded will stop movement, both internationally and domestically, while this memorandum is in effect.

Except as provided below, this stop movement applies to all official travel, including temporary duty (TDY) travel; Government-funded leave travel; permanent duty travel, including Permanent Change of Station (PCS) travel…

Based on the DoD memo, the claimant asserts:

…If travel was permitted, in accordance with my PCS travel entitlement, we would have traveled back to CONUS at the conclusion of orders.  After such movement, I would meet the LQA eligibility criteria by being recruited in the United States (DSSR para [0]31.11) for a federal position.  Similarly, traveling back to CONUS and then returning to Germany as a contractor would also satisfy DSSR by being recruited outside the United States but with “prior to appointment having been recruited in the United States” (DSSR para [0]32.12)”

The DSSR contains 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 regards to the granting of and accounting for these payments.

DSSR section 031.11 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.

DSSR section 031.12 states:

Quarters allowances prescribed in Chapter 100 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; or

The agency’s language that the claimant had “2 different employers since arriving overseas”, which they used as a basis for determining him to be ineligible for LQA, is not used in the DSSR.  Rather, it is an abbreviated way of characterizing section 031.12b, which allows LQA eligibility in those instances where the employee, prior to appointment, had substantially continuous employment with one of the entities listed under b(1) through b(4), and which entity (i.e., the singular usage of “such employer”) recruited the employee in and provided return transportation to the United States or its territories or possessions.  Therefore, by extension, an employee who has had more than one “employer” overseas prior to federal appointment would be disqualified because the initial overseas employer rather than the employer immediately preceding appointment would have recruited the employee in the United States.

Immediately prior to his appointment with AF, the claimant was employed by BAH in Germany.  Although not specifically stated in the record, no documentation has been provided by the claimant which contradicts that BAH recruited him in Germany while he was still employed with AF nor has he provided evidence of intervening United States residency occurring between his separation from military service and the commencement of employment with BAH, during which time he may have been recruited from the United States.  As such, prior to his appointment, he had not been recruited by BAH in the United States or one of its enumerated territories or possessions.  Rather, the claimant was recruited in the United States by the United States Air Force, as evidenced by his DD Form 214, Certificate of Release or Discharge From Active Duty, showing his place of entry into active duty as Stratham, New Hampshire.  His subsequent employment by BAH broke the continuity of employment by a single employer (i.e., “such employer that recruited him in the United States”).  So, regardless of whether or not the claimant was allowed to travel as a result of the April 20, 2020, DoD memo he does not meet the basic LQA eligibility requirements under DSSR 031.11, because he was not recruited by BAH in the United States or one of its enumerated territories or possessions, nor does he meet the basic eligibility requirements for DSSR 031.12 for an overseas “local” hire because the recruitment for the BAH position occurred in Germany prior to his separation from military service, which broke the continuity of employment by a single employer, i.e., “such employer that recruited him in the United States”.

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).  In this case, the claimant did not establish the liability of the United States and his right to payment because he failed to meet the basic requirements for LQA described in DSSR 031.11 and 031.12.  Since an agency decision made in accordance with established regulations, as is evident in this case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the agency’s decision.  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.

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