Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Military Intelligence Civilian Excepted Career
Program
U.S. Army Intelligence and Security Command
U.S. Department of the Army
Stuttgart, Germany
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/01/2025
Date
The claimant is a current Federal civilian employee of the U.S. Department of the Army (hereafter referred to as “agency”), assigned to the 66th Military Intelligence Brigade, Military Intelligence Command Excepted Career Program, U.S. Army Intelligence and Security Command, in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the decision made by the agency to deny his request for retroactive payment of living quarters allowance (LQA). We received the claim on February 15, 2024, the agency administrative report (AAR) on November 13, 2024. For the reasons herein, the claim is denied.
The claimant is currently assigned to a position as an Intelligence Specialist (Operations), GG-0132-13, step 6, with the 66th Military Intelligence Brigade, Military Intelligence Command Excepted Career Program, U.S. Army Intelligence and Security Command, in Stuttgart, Germany, effective March 16, 2023. Prior to his arrival in the overseas area, the claimant was recruited from his stateside home in Florida. As a result, he was determined eligible for LQA as an employee recruited in the United States under section 031.11 of the Department of State Standardized Regulations (DSSR).
On May 15, 2023, the claimant signed a rental agreement for a residence in Germany. On August 17, 2023, the claimant submitted a Standard Form (SF) 1190, requesting LQA for his rental and on August 18, 2023, the claimant signed a Living Quarters Allowance (LQA) Conditions of Eligibility Statement of Understanding (SOU) form. On September 14, 2023, the claimant attended a seminar held by the Civilian Human Resources Agency, at which time he discovered that employees must submit their LQA requests within 90 days “after occupancy of their permanent quarters” or the agency will process the claim “prospectively from the date of the submission, using the electronic date of the signing of the SF-1190 as the point of reference.” At this juncture, the claimant understood that he had submitted his LQA request after the 90-day limit. As a result, the agency used the August 17th date as the day LQA would commence for his rental quarters, rather than the May 15th date in which the claimant signed his rental agreement. The claimant states that this decision has resulted in the net loss of 8,000 euros for rent and utilities he has paid out of pocket. On September 29, 2023, the claimant requested that the agency reverse its decision to use the August 17th date rather than the May 15th date to make up for his loss in LQA payments. However, on October 16, 2023, the agency denied his request for retroactive LQA payments to the start date of his rental.
The DSSR set forth basic eligibility criteria for the granting of LQA. The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Under DSSR section 031.11, LQA may be granted to employees recruited in the United States. It states in part:
Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.
There is no dispute the claimant met section 031.11 of the DSSR at the time of his appointment. Thus, the claimant was eligible for LQA as a U.S. Hire.
However, the Army in Europe Regulations (AER) 690-500.592, paragraph 5.f.(2), dated September 6, 2018, establishes that employees eligible for [living quarters] allowance will:
(2) Provide copies of their rental or lease agreement and their enrollment in the [Department of Defense] Utility Tax Avoidance Program to the [Civilian Human Resources Agency] LQA Office together with an SF-1190 [Foreign Allowances Application, Grant and Report] and DSSR 130 Worksheet in order to start their LQA. To be compensated retroactively, employees must file their SF-1190 within 90 days after occupying their quarters. Such claims will be processed prospectively from the date of SF-1190 submission. The electronic signature date on the SF-1190 is the date considered as submission of the claim.
The agency denied the claimant’s request for retroactive payment of LQA because he failed to submit his claim for LQA within 90 days of occupying his quarters as required by paragraph 5.f.(2) of AER 690-500.592. On September 29, 2023, the claimant requested an exception to this policy, offering his reason for why his LQA request was not timely. On October 16, 2023, the agency denied his request stating in part, “…an approval of an exception to policy, here AER 690-500.592, […] does not provide for a waiver or an exception in the matter at hand [and] would be inconsistent with the guidance.”
The DSSR contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Section 013 of the DSSR allows heads of agencies to issue further implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments.
Within the scope of the DSSR, an agency may, as done here, issue further implementing instructions for the guidance of its agency with regard to the granting of and accounting for LQA payments. As LQA is a discretionary allowance, agency implementing regulations and/or policies may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA. Thus, OPM applies agency-developed policies to the extent such guidance agrees with the DSSR. In this case, the agency has not violated its authority in implementing further restrictions concerning the grant of LQA. We find no reason to disturb its decision to deny the claimant’s request for retroactive payment of LQA based on provisions of paragraph 5.f.(2) of AER 690-500.592.
The claimant acknowledges the failure to submit his LQA request within 90 days of occupying his rental quarters, thus in conflict with the requirement in paragraph 5.f.(2) of AER 690-500.592. As noted above, he seeks reconsideration of the agency’s decision to deny the request for exception to agency policy. As written, exceptions to policy may be requested from the agency, which has already denied the claimant’s request for exception. OPM adjudicates compensation claims for certain Federal civilian 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. Section 3702 does not include the authority to waive agency policy. OPM does not consider the claimant’s request for an exception to policy within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2). Therefore, OPM is without authority to grant the request for an exception to agency policy.
Furthermore, the Department of Defense Instructions 1400.25 V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQA to agency employees. Thus, an agency may withhold LQA 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 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. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). In this case, the claimant 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 agency’s decision. Accordingly, the claim for retroactive payment of LQA is denied.
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.