Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Camp Arifjan, Kuwait
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/17/2022
Date
The claimant is a Federal civilian employee of the Department of the Army at Camp Arifjan, Kuwait. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of involuntary separate maintenance allowance (ISMA) on behalf of her son. We received the claim request on July 30, 2021, the agency administrative report (AAR) on November 22, 2021, and the claimant’s comments to the AAR on November 22, 2021 and January 14, 2022. We also received agency comments to the additional information submitted by the claimant in response to its AAR on February 8, 2022. For the reasons discussed herein, the claim is denied.
Since 2010 the claimant has held Federal civilian employment outside the United States primarily in areas where accompanying family members are not authorized, except between November 20, 2011 and July 15, 2012, and between December 2, 2014 and November 26, 2016, when she held Federal civilian and private sector employment in the United States. During her overseas unaccompanied assignments, the claimant did not receive ISMA on behalf of her son, but for her assignment with Army Central (ARCENT) in Kuwait between August 6, 2017 and May 24, 2019. Thereafter, the claimant was reassigned from ARCENT-Kuwait to ARCENT- Qatar until December 22, 2019, when she was appointed to a position with the U.S. Army Sustainment Command, 401st Army Field Support Brigade (AFSB), Southwest Asia, Qatar, with duty station at Camp As Sayliyah, Qatar. On May 9, 2021, the claimant was reassigned to another position with the U.S. Army Sustainment Command, 401st AFSB, Southwest Asia, Kuwait, with duty station at Camp Arifjan, Kuwait, and shortly after, on May 23, 2021, she was appointed to her current position of Administrative Officer, GS-0341-11, with the 595th U.S. Army Transportation Terminal Group, 840th Deployment and Distribution Support Battalion, in Izmir, Turkey with duty station at Camp Arifjan, Kuwait. As Kuwait is an area where family members are not allowed, upon appointment the claimant requested ISMA on behalf of her son.
The agency denied the claimant’s request for ISMA under the Department of State Standardized Regulations (DSSR) section 263 which describes several circumstances under which SMA is not warranted, including section 263.1, wherein “[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 SMA would thus not be allowable. Specifically, in its AAR to OPM, the agency states:
The documents provided by [the claimant] at the time she requested ISMA for her current assignment, and those shared with your office and the responding agency and written additional information, are insufficient to demonstrate that her son may be considered a member of her family in the context of the DSSR § 040m in connection with the DSSR §§ 262.1 and 263.1. Therefore absent any other documents that convincingly demonstrate that her son joined her when she was in Qatar, her support to a separate household where her son currently resides in Ohio ([The claimant’s] previous household seems to have been in Alexandria, VA), existed prior to her current posting with the 595th Transportation Terminal Group in Kuwait. What follows from this is that [the claimant’s] assignment in Kuwait is not the proximate cause of the extra expenses of maintaining two separate households. As a result, pursuant to DSSR § 263.1, a claim for ISMA is not warranted.
The claimant disagrees with her agency’s decision and states that her son accompanied her on her assignment in Qatar between May 25, 2019 and May 9, 2021, and that during this time, ISMA issued by ARCENT-Kuwait had already been terminated because her son was in her physical presence and living with her in Qatar. In addition, she submits the following documentation to OPM to support that her son resided with her in Qatar: an e-ticket receipt to show her son traveled from Pennsylvania, United States to Qatar on July 5, 2019; a conditional offer letter from GEMS Wellington School, in Al Wakair-Doha for the school year 2019-2020 dated September 5, 2019; a pro forma invoice for school costs and fees dated September 9, 2019; a copy of her son’s State of Qatar Residency Permit identification card with expiration date of August 7, 2022, which the claimant states would not have been issued had her son not resided in Qatar; a CWT Sato Travel Itinerary showing paid travel for the claimant and her son to travel from Doha, Qatar to Pennsylvania, United States on April 26, 2021; and an email dated August 18, 2021 from GEMS Wellington School to the claimant with Subject: GEMS Wellington School-Transfer Certificate Verification /Reports, indicating the claimant’s son was enrolled at GEMS Wellington School between September 9, 2019 (date of admission) and June 30, 2021 (last date of attendance).
The agency reviewed the additional documentation listed above and states that it can now be conclusively stated that the claimant and her son resided in the same household in Doha, Qatar between July 06, 2019 and April 26, 2021. Section 040m of the DSSR defines “Family or family member” as one or more of the individuals listed in that section which includes children who are unmarried and under 21 years of age “residing in the same quarters as the employee at his/her post or would normally reside at the post except for the existence of circumstances cited in section 262 warranting the grant of a separate maintenance allowance…” Therefore, the claimant’s son meets the definition of a family member found in the DSSR section 040m for purposes of Separate Maintenance Allowance (SMA).
The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260. DSSR section 261.2 describes the purpose of SMA as follows:
SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below [in section 262, one of which being where ISMA is authorized] to maintain a separate household for the family or a member of the family. [italics added]
Section 262 of the DSSR states:
SMA may be granted to an employee whenever the head of agency determines that the employee is compelled to maintain any or all members of family elsewhere than at the foreign post of assignment because of the following circumstances:
Section 262.1 Involuntary SMA (ISMA) – For the Convenience of the Government states:
An agency may authorize ISMA, when adverse, dangerous, or notably unhealthful conditions warrant the exclusion of members of family from the area or when the agency determines a need to exclude members of family from accompanying an employee to the area.
The intent of the regulations is clearly that 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 member and thus would be burdened with assuming the additional expenses associated therewith, not to defray the costs of an existing housing arrangement. As previously addressed, it has been established that the claimant’s son meets the definition of a family member found in DSSR 040m, therefore, the remaining issue to consider is whether the claimant’s current assignment in Kuwait compelled her to maintain two separate households. The agency states that prior to being employed with ARCENT in Kuwait in no other previous unaccompanied assignment since 2010 with either the Army Corps of Engineers in Afghanistan or the Army Sustainment Command, 401st AFSB, initially in Afghanistan and later in Kuwait, did the claimant receive ISMA on behalf of her son. Therefore, within its discretionary authority, the agency concludes the claimant’s assignment in Kuwait is not the proximate cause of the extra expenses of maintaining two separate households in that the claimant’s support to a separate household where her son currently resides in (and seemed to have resided in prior to joining the claimant in Doha, Qatar in July 2019) existed prior to her current posting in Kuwait. When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982. The claimant has not established that she was “compelled” to maintain two separate households as a result of her current Federal position under the circumstances that would support eligibility under section 262.1 for ISMA. Therefore, her claim for ISMA is denied.
SMA is a discretionary allowance, not an entitlement. 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. 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). In this case, the claimant has failed to do so. 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 the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.