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Office of the General Counsel

Matter of: Mr. [xxx]
File Number: S9700527

OPM Contact: Murray M. Meeker

This responds to a claim for a retroactive living quarters allowance (LQA) for [xxx]. For the reasons discussed herein, Mr. [xxx]' claim is denied.

The payment of an LQA to a federal employee who is employed in a foreign area is authorized by section 211 of the Overseas Differentials and Allowances Act, 74 Stat. 793, now codified at 5 U.S.C. 5923. The criteria for determining whether an employee recruited outside the United States is entitled to such an allowance are contained in the Department of State Standardized Regulations (DSSR) (Government Civilians, Foreign Areas) and in implementing instructions issued by employing agencies.

On January 31, 1983, Mr. [xxx] was discharged from active military duty with the [agency], and on August 1, 1983, he was employed as a civilian by the [agency] in a foreign area as a family member under a Schedule A appointment. Mr. [xxx] would have met the conditions for an LQA at the time of his appointment except that DSSR Part 031.12 (1983) and the implementing agency instruction, Department of Defense (DOD) Civilian Personnel Manual (CPM), Chapter 592, 1400.25-M, 2-2c, prohibited the award of an LQA to an employee hired under a Schedule A appointment.

On July 2, 1984, approximately eleven months after Mr. [xxx] received his appointment, the LQA prohibition was deleted. The revised Defense Department instructions authorized the award of LQA's to qualifying individuals effective July 2, 1984. Five years later, on July 6, 1989, Mr. [xxx] conferred with the Civilian Personnel Office (CPO) regarding his eligibility for an LQA and the agency granted his LQA effective July 6, 1989. Mr. [xxx] claims retroactive LQA entitlement from June 10, 1986 to July 5, 1989.

The granting of allowances authorized by the Overseas Differentials and Allowances Act is a discretionary matter. 58 Comp. Gen. 738 (1979). 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 acted arbitrarily or abused its discretion. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979); and Charles E. Brookshire, B-196809, May 9, 1980. It is not arbitrary or an abuse of discretion for an agency to deny an LQA where an employee has failed to apply. Robert W. Matthews, B-239150, April 15, 1991. See DSSR Part 077.1 (mandates that employees apply for foreign allowances in accordance with implementing agency regulations.)

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