Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Al Udeid Air Base, Qatar
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/05/2025
Date
The claimant is a Federal civilian employee of the U.S. Department of the Army (DA), at Al Udeid Air Base, Qatar. 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 request on December 15, 2023, the agency administrative report (AAR) on April 8, 2024, and additional information from the claimant between December 2023, and March 2024. We also requested follow up information from the agency, which was received on August 30, 2024. For the reasons discussed herein, the claim is denied.
The claimant was appointed to a Logistics Management Specialist, GS-0346-11, position at Al Udeid Air Base, Qatar effective March 13, 2023. Prior to appointment, he was found eligible for Living Quarters Allowance (LQA) under the provisions of the Department of State Standardized Regulations (DSSR) 031.11., in connection with the Department of Defense Instruction (DODI) 1400.25 - Volume 1250, and the Army in Europe Regulations (AER) 690-500.592, as an employee recruited in the United States. Pursuant to DSSR 031.2, this eligibility qualified the claimant for consideration of ISMA under the DSSR section 260, provided certain criteria are met. The Joint Travel Regulations shows his 12-month posting in Qatar is an unaccompanied assignment where family members are not allowed. For this reason, the claimant requested ISMA on behalf of his spouse. The claimant asserts he received verbal approval for ISMA from the Civilian Personnel Advisory Center (CPAC) on October 17, 2022, prior to accepting the overseas position. In an email dated February 29, 2024, the claimant asserts that prior to his assignment in Qatar his spouse resided with him in Virginia Beach, Virginia and he was employed as a contractor. In its AAR to OPM dated April 3, 2024, the agency takes the position that ISMA is not warranted because the circumstances in section 262.1 of the DSSR (cited below) are not met.
The agency states, in part:
As noted in our memorandum, the Joint Travel Regulations identifies assignments in Qatar as 24 months under an accompanied and 12 months under an unaccompanied assignment. However, an unaccompanied assignment of 12 months to Qatar may not be construed that the assignment is in an area where family members are not allowed. Here, an assignment to Al Udeid Air Base in Qatar is an assignment where family members are explicitly allowed. As a result, [claimant’s] request does not meet the basis for ISMA under the provisions of the DSSR §…262.1, which provides that the allowance may be granted “…when adverse, dangerous, or notably unhealthful conditions warrant the exclusion of members of the family from accompanying an employee to the area.” (Emphasis added).
The agency also alleges the claimant’s current assignment was not the reason for his separation from his family under DSSR section 263.1. It states, in part:
….[claimant], immediately prior to his current Federal civilian employment that took him back to the Middle East, held year-long contractor employment in that area under assignments, where he presumably was similarly not accompanied by his spouse and/or family. His return to the United States to the couple’s residence in Virginia was of a brief nature between his overseas employments as a contractor employee from February 2014 to June 2022, applying for the current position in July 2022, to eventually transfer to Qatar in March 2023 as a Federal civilian employee….it appears that [claimant’s] employment for the last nearly 10 years took him to the overseas area, seemingly unaccompanied, without the grant of a separate maintenance allowance. His current posting, where family members are allowed, but do not accompany him, may thus be considered an extension of previously existing situation which does not warrant the grant of ISMA as a Federal civilian employee.
The claimant offers no statutory or regulatory basis to support his claim for ISMA. Instead, his primary protest is that the CPAC verbally approved ISMA for his overseas assignment, but it was later denied by the agency. He states the request was based on the agency “policy” of not authorizing his spouse and family members to accompany him to Qatar. He alleges all his DA civilian counterparts are receiving ISMA and only seeks the “necessary incentive” to support his family during the separation.
The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260. Section 261.1 Definitions, states in pertinent part:
a. 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. There are three types of SMA: Involuntary (ISMA), Voluntary (VSMA), and Transitional (TSMA):
(1) "Involuntary separate maintenance allowance" (ISMA) 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. (See 262.1.)
Section 261.2 Scope, provides:
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 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.
Section 263.1 Member of Family Not Normally Residing With Employee, provides:
[w]hen 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. In this case, the claimant did not present evidence of Qatar, in general, or the Al Udeid Air Base post area, specifically, as exhibiting dangerous, adverse, or unhealthful conditions warranting the exclusion of family members. However, in the agency’s memorandum dated July 11, 2023, and in the AAR, it states an unaccompanied assignment may not automatically be interpreted as an assignment where family members are not allowed. The agency believes that in Qatar family members are “explicitly” allowed. In the agency’s follow up information, it states the post area is not considered unhealthy “as schools for accompanying families are available and civilian employees are accompanied.” As a result, the agency determined that family members are permitted in Qatar. 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 262.1, by its plain terms requires that when dangerous, unhealthful, or excessively adverse living situations do not exist at the foreign post of assignment, the conditions for granting ISMA are not met and thus, the grant of ISMA is not warranted. Accordingly, the claimant’s request for ISMA is denied.
Additionally, the agency alleges the claimant’s current assignment was not the reason for his separation from his family. DSSR section 263.1 disallows SMA in those circumstances “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of family.” There is not enough documentation in the claim record to verify that the claimant’s spouse does not normally reside with him. However, we need not address this issue further as the claim is disallowed for the reasons discussed above.
As stated, the claimant asserts his claim for ISMA was verbally approved by the CPAC. 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 the CPAC prior to accepting the overseas position, does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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 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.