Washington, D.C.
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Army Sustainment Command
U.S. Department of the Army
Camp Arifjan, Kuwait
Kimberley A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/22/2025
Date
The claimant is a Federal civilian employee of the Department of the Army (hereafter referred to as “agency”), assigned to Headquarters, 401st U.S. Army Field Support Brigade, U.S. Army Sustainment Command at Camp Arifjan, Kuwait. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of full involuntary separate maintenance allowance (ISMA). We received the claim on July 26, 2024, and the agency administrative report on September 9, 2024. For the reasons discussed herein, the claim is denied.
The claimant is currently assigned to a position as an Information Technology Specialist, GS-2210-12, with the 401st Army Field Support Brigade, U.S. Army Sustainment Command at Camp Arifjan, Kuwait, effective October 22, 2023. The claimant previously held a stateside position at Fort Liberty, North Carolina, before transferring to the overseas area. On October 31, 2023, the claimant filled out a Standard Form 1190, designating six family members who were domiciled away from post. The list included his spouse, his four children, and his stepchild. The claimant included a note on the form which stated, “we have full custody of our children.” An assignment at Camp Arifjan, Kuwait, is an unaccompanied assignment where family members are not allowed. Consequently, the claimant requested ISMA for his spouse and children who could not accompany him on this restricted foreign post of assignment. On December 21, 2023, the agency partially approved the claimant’s request for ISMA. The approved ISMA request only included two of his biological children and his spouse, excluding two biological children from a previous relationship and his stepchild. The claimant submitted a second ISMA request which only included his two other biological children from a previous relationship and not his stepchild. On May 23, 2024, the agency denied the claimant’s second request for ISMA on the basis that the claimant had not established who held custody of the children.
The Department of State Standardized Regulations (DSSR) set forth basic eligibility criteria for the granting of living quarters allowance (LQA). The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Under DSSR section 031.1, LQA may be granted to employees recruited in the United States.
In addition to LQA, an employee eligible under the DSSR section 031.1, may also be eligible to receive additional allowances under DSSR section 031.2.
Other cost-of-living allowances (foreign transfer allowance, home service transfer allowance, separate maintenance allowances, education allowances, and educational travel), and difficult to staff incentive differential, prescribed in subchapters 240, 250, 260, 270, 280, and 1000, respectively, may be granted subject to exceptions contained in the foregoing chapters, only to those employees who are eligible for quarters allowances under Section 031.1.
Separate maintenance allowances (SMA) are available to employees under the provisions of the DSSR section 261.1.a, which states in part:
(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.
ISMA is a type of SMA which, under DSSR section 261.1.a(1), 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.
DSSR section 261.2 Scope further emphasizes that:
SMA is intended to assist in offsetting the additional expense incurred by an employee who is compelled by the circumstances described below [section 262] to maintain a separate household for the family or a member of the family.
However, DSSR section 263 establishes circumstances not warranting SMA. Specifically, DSSR section 263.4 Lack of Legal Custody of Child states:
“When a child's legal custody is vested, in whole or in part, in a person other than the employee or the employee's current spouse or domestic partner. SMA may be granted, however, when the employee (or current spouse or domestic partner) has joint legal custody, the child does not reside with the other parent, and it is established that except for the circumstances described in Section 262 the child would reside with the employee and the employee's current spouse or domestic partner.”
The claimant was eligible to receive LQA under the provisions of the DSSR section 031.1. As a result, the claimant was also eligible to receive additional allowances (i.e., SMA) under the provisions of the DSSR section 031.2. As Camp Arifjan, Kuwait is a post where accompanying family members are not authorized, the claimant was eligible to receive ISMA under the provisions of the DSSR section 261.1.a(1). However, the claimant was only partially approved to receive ISMA for two of his dependent children and spouse. Despite the agency receiving a copy of the claimant’s court ordered Parenting Agreement dated October 9, 2019, the agency states that it could not determine the custodial rights of the claimant for his two additional biological children and stepchild. The agency further states that the Parenting Agreement did not fully address “the question of who has legal custody of the children,” and therefore does not “resolve the custody issue of the parents.”
Under section 178.105 of title 5, Code of Federal Regulations (CFR), OPM accepts the facts asserted by the agency, absent clear and convincing evidence to the contrary. Accordingly, we uphold the agency’s decision to partially deny the claimant ISMA. DSSR section 263.4, by its plain terms prohibits the grant of SMA when “a child's legal custody is vested, in whole or in part, in a person other than the employee or the employee's current spouse or domestic partner.” The information provided by the claimant does not sufficiently establish the additional children’s legal custody, which must be wholly or jointly vested in him or his current spouse to receive the allowance.
Furthermore, the Department of Defense Instruction 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 SMA to agency employees. Thus, an agency may withhold 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. The burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. 5 CFR 178.105. 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 a higher grant of ISMA 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.