Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Navy
Manama, Bahrain
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/02/2021
Date
The claimant is a Federal civilian employee of the Military Sealift Command, Department of the Navy (DON) in Manama, Bahrain. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of living quarters allowance (LQA). We received the claim on May 24, 2021, and the agency administrative report (AAR) on June 22, 2021. For the reasons discussed herein, the claim is denied.
The claimant worked as a contractor overseas for multiple private United States firms between the time he was recruited from the United States and the time he entered Federal service as a civilian employee. He was initially recruited in the United States and employed by Vectrus in Iraq, from June 2014 to August 2018. He was then employed by Tec-Masters, Inc./Perspecta and StratasCorp Technologies in Okinawa, Japan, from August 2018 to September 2018, and January 2019 to November 2019, respectively. [1] Lastly, from November 2019 to April 2021, he was employed by General Dynamics Information Technology (GDIT), in Manama, Bahrain. While residing in Bahrain, the claimant applied for his current Federal service position of IT Specialist, GS-2210-12, with DON and was appointed to it effective April 25, 2021.
Prior to appointment, the agency determined the claimant ineligible for LQA under the provisions of Department of State Standardized Regulations (DSSR) section 031.12, for employees recruited outside the United States because he did not meet eligibility criteria under section 031.12b. In its decision dated February 16, 2021, the agency explains its denial of LQA to the claimant as follows:
You were selected for an IT Specialist position, GS-2210-12 in Manama, Bahrain. You applied for this position while living in Bahrain working for GDIT as a contractor. Immediately preceding this contract, you worked for two different employers while living in Japan, Perspecta and StratrasCorp. Although originally recruited from the United States for a position in Japan, you have held multiple positions with different employers in foreign areas.
Section 031.12 of reference (b) [DSSR] specifies the conditions under which employees “recruited outside the United States” may be granted LQA. Specifically, individuals who reside outside the United States and apply for a position in a foreign area must have been originally recruited from the United States and maintain substantially continuous employment with a single employer of a U.S. firm or organization under conditions which provide for return transportation to the United States. Because you had multiple employers in a foreign area, you do not meet the single employer criteria of reference (b) and have been deemed ineligible for LQA.
The agency further explains in its AAR:
While [claimant] may have been initially recruited from the United States by Vectrus, he went on to have more than one “employer” overseas prior to his federal appointment. Although [claimant] makes the argument his succession of employers was due to the nature of employment for contractors, he admits to breaking even the appearance of working for successive contractors when he left STRATASCORP in Okinawa to accept a position with GDIT in Bahrain. In fact, [claimant] applied for this position while living in Bahrain working for GDIT as a contractor, his fourth employer since leaving the United States in 2014.
The claimant does not disagree with the agency’s findings that he was not substantially continuously employed with a single employer while in a foreign area, but considers this was “no fault of [his] own.” He states that due to “turnover of contracts (contract terms and option years), [he] was moved between a few contractor companies while overseas, making it difficult to establish a long term retained job opportunity with one single company.” [2] Although the claimant does not directly respond to the agency’s determination that his situation fails to meet DSSR section 031.12b, we will address his LQA eligibility relating to that criteria.
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 regard to the granting of and accounting for these payments. Thus, Department of Defense Instruction (DoDI) 1400.25, Volume 1250, implements the provisions of the DSSR but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
- 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
- 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 DSSR section 031.12a because his place of residence in the place to which the quarters allowance applies (Bahrain) is fairly attributable to his employment by the United States Government. However, prior to his appointment to his civilian position with DON, the claimant was employed by GDIT in Bahrain, a qualifying employer under section 031.12b (2), but the firm recruited him in Japan, rather than in the United States or one of its territories or possessions. The singular usage of “such employer” in section 031.12b requires that the employee have had only one such qualifying employer prior to appointment and consequently, that the employer immediately preceding appointment be the same employer that recruited the employee in and provided return transportation to the United States or one of its territories or possessions. Thus, the claimant lost eligibility for LQA under DSSR section 031.12b because he was not recruited in the United States by GDIT. Further, the claimant did not provide documentation to show that his employment with GDIT provided return transportation to the United Stated or one of its territories or possessions as required under section 031.12b. However, this would have no bearing on our determination given the claimant was not recruited by GDIT in the United States. Therefore, as the claimant was not recruited in the United States prior to appointment by his previous employer (GDIT), under conditions that provided for his return transportation to the United States, he does not meet LQA eligibility requirements under DSSR section 031.12b. Accordingly, his claim for LQA is denied.
The claimant also requests LQA based on “substantially high” costs for housing in Bahrain and a salary difference (i.e., $39,000 less than previously paid as a contractor) causing a “significant burden on his family for monthly expenses.” OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C.3702(a)(2) is narrow and limited to determining if monies are owed the claimant under the controlling statutes or regulations. It does not include the authority to review LQA eligibility based on salary comparisons or considerations of necessity. Therefore, the claimant’s assertions has no applicability to our claim determination and will not be addressed further.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for United States 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 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). 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.
[1] Information from employment offer letters included in the record suggest the U.S. Government contract held by Tec-Masters, Inc./Perspecta was awarded to StratasCorp Technologies.
[2] The claimant appears to suggest that he was induced to work for multiple contractor employers due to successive contracts between the U.S. Government and contractor companies, and thus he should be granted LQA. However, OPM has consistently recognized employment of this nature as constituting separate employers for purposes of LQA eligibility under DSSR section 031.12b. See OPM File Numbers 15-0008, January 21, 2016; 19-0008, September 10, 2019. Thus, the nature of the claimant’s contractor employment may not serve as a basis for granting him LQA.