Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
G-3/4 Operational Protection Division
Department of the Army
Wiesbaden, Germany
Kimberly A. Steide, DPA
Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/14/2025
Date
The claimant is a Federal civilian employee of the Office of the Provost Marshal, G-3/4 Operational Protection Division, Department of the Army (Army) in Wiesbaden, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarters allowance (LQA). We received the claim on March 25, 2024, and the agency administrative report (AAR) on April 5, 2024. For reasons discussed herein, the claim is denied.
The claimant retired from the military service in Germany on June 30, 2022, and did not use his military transportation entitlement to return to the United States. Rather, while on terminal leave from the military he began contractor employment on May 17, 2022, with the private firm SafeLane Global Limited based in the United Kingdom (UK) for an assignment in Somalia until September 25, 2022. At the end of his assignment, he returned to Germany and was unemployed. The claimant applied for his civilian position when it was announced between September 29, 2022, and October 12, 2022. On December 29, 2022, a tentative job offer was extended, which he accepted on January 9, 2023. Effective March 13, 2023, he was appointed to his civilian position as Program Management Analyst (IDEX), GS-0343-12, with the Mission Support Element, Europe G-3/4 Operational Protection Division, Office of the Provost Marshal in Wiesbaden, Germany under a term appointment not-to-exceed (NTE) September 30, 2024, which was later extended to NTE September 9, 2025.
The agency found the claimant ineligible for LQA because he did not meet the requirements of the Department of State Standardized Regulations (DSSR) section 031.12, for employees recruited outside the United States. The agency identifies the claimant’s contractor employment and unemployment status after his military retirement as the basis for their LQA ineligibility determination. In its AAR, the agency states:
[The claimant] was not hired from his previous employer, the Armed Forces, that brought him to the overseas area and provided for a transportation entitlement to return him to the United States, but from an unemployment status following his brief employment with a private enterprise that recruited him whilst he resided in Germany. These hiring circumstances disqualify [the claimant] for eligibility for LQA under DSSR 031.12a and b, the DODI 1400.25-V1250, and the AER 690-500.592.
The claimant notes that Army in Europe Regulation (AER) 690-500.592, paragraphs 7e and 7e(2) addresses eligibility determinations for applicants who were previously employed as contractor employees referring to employment with a “U.S. firm,” but believes that because his contractor employment was with a UK firm and not with a U.S. firm, he should be eligible for LQA under DSSR section 031.12b. In addition, the claimant cites DSSR section 031.12c which authorizes the head of the agency to waive LQA eligibility requirements described under subsection 031.12b. The statements made by the claimant appear to suggest that he seeks a waiver of the requirements of DSSR section 031.12b upon determination that unusual circumstances in his case justify such action.
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. Department of Defense Instruction (DoDI) 1400.25, Volume 1250 dated February 23, 2012, and AER 690-500.592, dated September 6, 2018, implement the provisions of the DSSR, but may not exceed their scope i.e., extend benefits that are not otherwise permitted by the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI, AER, or other agency implementing guidance may be applied.
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.]
c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency.
Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.
The claimant meets section 031.12a because his presence in Germany is attributable to his employment with the Army. However, he must also meet all the requirements specified in DSSR section 031.12b to be considered eligible for LQA. Section 031.12b allows LQA eligibility in those instances where the employee, prior to appointment, had substantially continuous employment with one of the entities listed under DSSR 031.12b(1) through b(4), and which entity recruited the employee in and provided return transportation to the United States or its territories or possessions. However, prior to his civilian appointment with the Army on March 13, 2023, the claimant was unemployed following the expiration of his employment contract with SafeLane Global Limited on September 25, 2023. Therefore, prior to his appointment by the Army, he was not employed by one of entities listed in DSSR section 031.12b(1) through b(4) under conditions providing for his return transportation to the United States or one of the enumerated territories or possessions. Rather, the claimant was unemployed after having had intervening employment with an overseas private contractor firm.[1] Consequently, the claimant does not meet LQA eligibility criteria under DSSR section 031.12b, and his claim for LQA is denied.
We note that both the agency and the claimant included discussions analyzing supplemental agency instructions in their submissions (i.e., DODI and AER). However, as previously explained an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental agency requirements may be applied. As this claim is denied on failure to meet the basic eligibility requirements under subsection 031.12b, agency implementing instructions may not be applied and will not be addressed.
Further, DSSR section 031.12c, clearly authorizes the head of the agency to waive LQA eligibility requirements described under subsection 031.12b. In its AAR to OPM, the agency addresses the claimant’s ineligibility for a waiver under section 031.12(c), determining that he does not meet the conditions specified in DODI 1400.25 – V1250, permitting the requirements of DSSR 031.12b to be waived. Since the authority to waive the requirements of DSSR section 031.12b is reserved to the head of the employing agency, OPM has no jurisdiction within the context of the claims adjudication function it performs under 31. U.S.C section 3702(a)(2) to waive provisions of the DSSR, which determine LQA eligibility and will not review such determinations.
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] The claimant’s employment with SafeLane Global Limited would not have been qualifying under DSSR section 031.12b even if the break in employment had not occurred as they had not recruited him in the United States under conditions which provided for his return transportation to the United States. Whether the firm was a U.S. firm or not is immaterial to our claim determination under subsection 031.12b.