Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Camp Bondsteel, Kosovo
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/04/2022
Date
The claimant is a Federal civilian employee of the 21st Theater Sustainment Command, Department of the Army (DA), in Camp Bondsteel, Kosovo. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of involuntary separate maintenance allowance (ISMA). We received the claim in May 2021, the agency administrative report (AAR) on July 27, 2021, and additional information from the claimant on August 7, 2021. For the reasons discussed herein, the claim is denied.
The claimant was appointed to his current General Supply Specialist, GS-2001-11, position at Camp Bondsteel, Kosovo, effective January 19, 2021. The posting in Kosovo is an unaccompanied assignment where family members are not allowed. For this reason, the claimant requested ISMA on behalf of his spouse and their two children who remained in the U.S. at an address in Winter Garden, FL.
The agency denied the claimant’s request for ISMA on the basis that his current assignment was not the reason for his separation from his family. Instead, the agency alleges he was already physically separated from his family prior to being appointed to the unaccompanied position at Camp Bondsteel, Kosovo. The agency states the claimant resided in Kissimmee, Florida and his family resided and continues to reside in Winter Garden, Florida. The agency goes on to state: “[w]hen asked, [the claimant] confirmed that the family did not reside together.”
The facts are as follows. On September 01, 2020, the claimant completed a Living Quarters Allowance (LQA) questionnaire for his current position. In section B: Applicant Living and Working History, the claimant wrote that he resided at [street address] Winter Garden, Florida from August 02, 2019 to July 19, 2020 and [street address] Kissimmee, Florida from July 20, 2020 until present (i.e., September 01, 2020). Conversely, when the claimant submitted a foreign allowances application (Standard Form (SF)-1190) for ISMA, on February 20, 2021, he indicated that his spouse and children reside at [street address] Winter Garden, FL.
The agency asked the claimant if he and his family were maintaining separate households since July 2020, based on the residency information he provided in the LQA Questionnaire and SF-1190. He stated “No. We had 2 households at the time. I’ve since sold my property in Kissimmee, Fl.” The claimant goes on to state his home of record is in Winter Garden, Florida and he submitted a June 9, 2020, lease agreement for the Winter Garden residence between the claimant and his spouse and landlord attempting to prove he was not living in a separate household. The lease agreement is for July 1, 2020, to June 30, 2021.
In the AAR to OPM, the agency states that in the series of emails between the claimant and the agency, the claimant’s responses appeared “elusive” to specific questions. The agency states that while the claimant appeared to insist he resided with his family, he “also maintained his position that the family had multiple properties…” The agency asserts that due diligence was exercised on its part before issuing a final denial through its several attempts made to understand where the claimant resided. It goes on to state “it is unclear if he resided with his family on whose behalf he seeks ISMA.” The agency further explains, in part:
It appears that [the claimant] considers his residence in Winter Garden, Florida as his primary residence and any other residence in Kissimmee, Florida as temporary. Irrespective of the nature of the residential quarters…the circumstances remain that [the claimant] already maintained two separate households prior to his assignment to Kosovo. As such, his current Federal civilian employment is not the proximate cause of having to maintain two separate households but rather an extension of a pre-existing condition in which the couple and/or family did not normally reside together in one household. As a result, pursuant to DSSR [Department of State Standardized Regulations] § 263.1., the grant of ISMA is not warranted.
Section 261.1.a. of the Department of State Standardized Regulations (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. [italics added]
ISMA is a type of SMA which, under section 261.1.a(1), 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.
Section 261.2 further emphasizes that:
SMA is intended to assist in offsetting the additional expenses incurred by an employee who is compelled by the circumstances described below [in section 262] to maintain a separate household for the family or a member of the family. [italics added]
Section 263.1 further notes that “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family” and thus in these circumstances SMA is not warranted.
The intent of the regulations is clear. SMA may be granted only in those cases where the employee would otherwise be compelled to maintain a separate household for a family or family members and thus be burdened with assuming the additional expenses associated therewith. In this case, the claimant has failed to meet his burden of proving that he resided with his family immediately prior to his appointment to his position in Kosovo. Under section 178.105 of title 5, Code of Federal Regulations, the burden is upon the claimant to establish the liability of the United States, and the claimant’s right to payment. We recognize the claimants copy of a lease agreement for the Winter Garden residence between himself and his spouse and landlord for July 1, 2020, to June 30, 2021. However, we also recognize that the claimant’s LQA Questionnaire shows him living in Kissimmee as of July 20, 2020, and he was appointed to his current Federal position January 19, 2021. This contradictory information makes it difficult to determine if he resided with his family before accepting the unaccompanied assignment. The agency asserts the claimant was residing separately from his family and OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105. Accordingly, the claim is denied.
The claimant requests that his SMA be granted and back dated to January 19, 2021, the date he was appointed to his current Federal position. As an alternative, he requests he be registered and placed in the Department of Defense Priority Placement Program and be “reassigned within 50 miles of my residence at time of hiring.” However, OPM’s claims jurisdiction 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. OPM’s compensation claims program does not include settlement of remedies under circumstances requested by the claimant and pertaining to programs administered by the Department of State and Department of Defense, respectively. Therefore, these requests are beyond the scope of our claim adjudication authority and are also denied.
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. Since an agency decision made in accordance with established regulations and within its discretionary authority, 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.