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
01/06/2023
Date
The claimant was a Federal civilian employee of the Department of the Army at Camp Arifjan, Kuwait during the claim period. [1] He seeks back pay for involuntary separate maintenance allowance (ISMA) which he requested on behalf of his spouse during his overseas assignment in Kuwait but was denied by his former employing agency. The U.S. Office of Personnel Management (OPM) received the claim request on February 14, 2022, and the agency administrative report (AAR) on May 20, 2022. For the reasons discussed herein, the claim is denied.
On August 18, 2019, the claimant was appointed to the position of Cook Supervisor, WS-7407-07, with the U.S. Army Medical Department Activity (USAMEDDAC) Korea, Department of Nutrition Care at Camp Humphreys, Korea, a post where accompanying family members are allowed. During this assignment, the claimant’s wife did not accompany him to Korea and remained residing in San Antonio, Texas. On March 28, 2021, the claimant was promoted to a Food Services Specialist, GS-1667-11, position with the U.S. Army Central Command (ARCENT), Area Support Group in Kuwait, an unaccompanied assignment where family members are not allowed. The claimant asserts that he received approval for ISMA from his command in October 2019. [2] However, in its decision dated January 14, 2022, the agency denied the claimant’s request for ISMA under the Department of State Standardized Regulations (DSSR) 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 Separate Maintenance Allowance (SMA) would thus not be allowable. In its AAR, the agency further explains its decision as follows:
[The claimant] was assigned to Camp Arifjan in Kuwait on an assignment where family members are not allowed. As a result, he was compelled to maintain a separate household for his family member elsewhere. For purposes of the ISMA, the DSSR § 261.1.b. defines a “member of family” by referring to the definition found in DSSR § 040m, which, in relevant parts, identifies spouses.
The e-mail communication between [the claimant] and [HQ, United States Army Europe and Africa action officer] shows that the former advised the latter, upon request, that his wife, although was authorized travel and transportation, would have eventually joined him in Korea later had he completed a full tour there (see e-mail, [claimant], Thursday January 13, 2022 3:19 PM local time). Following receipt of [the claimant’s] clarifying information, this office denied his request for ISMA since the DSSR § 263.1 considers SMA not warranted when “a member of family [does] not normally reside with the employee…”. In addition, said section does not consider such a person to meet the definition of a member of family.
…[The claimant] accepted a posting with the USAMEDDAC in Korea in August 2019 from his stateside assignment in San Antonio, Texas, and was assigned there from August 18, 2019 until his reassignment to ARCENT in Kuwait in late March 2022. Thus, he was assigned overseas, maintaining a separate household from his spouse for about two years and seven months. Therefore, it is irrefutable that his assignment with ARCENT in Kuwait was not the proximate cause of having to maintain two separate households but rather an extension of a pre-existing condition in which the couple did not normally reside together in household. As a result, pursuant to DSSR § 263.1., the grant of ISMA was not warranted. Hence, our denial.
The claimant has not provided any statutory or regulatory basis supporting his claim for ISMA. Instead, his primary protest is that he was misled and given false information about his eligibility for ISMA. He also questions the reasons it took ten months for the agency to inform him of the denial of ISMA. He states the delay caused him to take a $20,000 loan to “cover money that was supposed to be paid to [him].” Furthermore, he states that had he known “at day one” that he was not eligible for ISMA, he would have “never accepted a Hardship tour in Kuwait for 50 cents more…”
The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260. DSSR section 261.1(b) provides, in relevant part, the following definition of “Member of family” for SMA purposes:
“Member of family” means an individual as defined in Section 040m (1) through (4)….
DSSR section 040 defines “family” or “family member” as follows:
m. “Family” or “family member” means one or more of the following individuals residing in the same quarters as the employee at his/her post, or who would normally reside at the post except for the existence of circumstances cited in Section 262 warranting the grant of a separate maintenance allowance, but who does not receive from the Government an allowance similar to that granted to the employee and who is not deemed to be a dependent or a member of the family of another employee for the purpose of determining the amount of a similar allowance: . . . (1) spouse or domestic partner (the latter as defined by agency regulations, when the head of agency determines this is in the interest of the Government), but not both.
DSSR section 261.2, which describes the purpose of SMA, provides:
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]
DSSR section 262, which pertains to “Circumstances Warranting SMA” provides:
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 provides:
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.
DSSR section 263 pertains to “Circumstances Not Warranting SMA.” Section 263.1 Member of Family Not Normally Residing With Employee provides:
When a member of family would not normally reside with the employee, this individual does not meet the definition of member of family.
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. The claimant acknowledges that his wife did not join him in his assignment to Korea. This fact is also substantiated by information provided by him in his Foreign Allowances Application, Grant and Report (SF-1190), dated March 13, 2021, signed by him and his wife, indicating under item number 17: “Family Domiciled Away from Post,” that his wife would reside at their residence in San Antonio, Texas. Consequently, the maintenance of a separate household for the claimant’s wife existed prior to and independent of the claimant’s assignment to Kuwait. As a result, the agency determined that his assignment in Kuwait was not the proximate cause to maintain two separate households but rather an extension of a pre-existing condition in which the claimant and his wife did not normally reside together in one household. 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. Therefore, DSSR section 263.1, by its plain terms requires that when a member of family would not normally reside with the employee, this individual does not meet the definition of member of family and thus, the grant of ISMA is not warranted. Accordingly, the claimant’s request for ISMA is denied.
As stated, the claimant asserts his claim for ISMA was initially approved by his command. However, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant was erroneously determined or notified that he was eligible for ISMA by his command prior to his agency’s final determination, does not confer eligibility not otherwise permitted by statute or its implementing regulations.
As it relates to the claimant’s assertion that had he been told from day one that he was ineligible for ISMA, he would have never accepted the position in Korea, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
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. Therefore, 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 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] Effective March 26, 2022, the claimant was appointed to a position with the U.S. Department of the Air Force in San Antonio, Texas.
[2] The claimant submitted an undated and unsigned memorandum from ARCENT command endorsing the approval of his request for ISMA.