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OPM Contact: Joann Charleston
An employee of the [agency] requests that we review her claim
for retroactive payment of Separate Maintenance Allowance (SMA). We
have completed our review of this claim and have determined that it
may not be allowed.
The record shows that on July 29, 1994, the employee was
assigned to the [agency] with an official duty station [overseas].
At the time of her assignment the employee did not list any
dependents on her travel authorization data form. In September
1994, the employee returned to the United States to be married. She
married on September 20, 1994 and returned to [xxx] on September
On December 16, 1997, the employee submitted vouchers for
reimbursement of SMA for the period October 1, 1994 through
December 30, 1996, to the Southern Plains Area Office (SPAO). Her
claim was processed for the upcoming year in accordance with
Department of State Standardized Regulations, and she was
reimbursed for the period January 1, 1997 through December 31,
1997. SPAO states that it does not have the authority to grant SMA
retroactively, a petition for the retroactive allowance was
submitted to [agency], Financial Management Division (FMD).
[agency], FMD was later informed by the Department of State that
[the agency] does not have the authority to waive State Department
regulations in granting a waiver for retroactive SMA. The [agency],
requested that the Department of State waive it's regulations and
grant the retroactive SMA. The Department of State denied the
request to waive it's regulations. The employee is now requesting
our assistance in obtaining retroactive SMA.
Title 5, United States Code, section 5924(3) states that a
separate maintenance to assist an employee who is compelled or
authorized, 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, or who requests such an allowance because of special
needs or hardship involving the employee or the employee's spouse
or dependents, to meet the additional expenses of maintaining,
elsewhere than at the post, the employee's spouse or dependents, or
In this instance the employee has stated that she sent a copy of
her marriage license to the Administrative Officer for the [agency]
program in [state]. However, they have record of receiving a copy
of the marriage license before October 1996. The record indicates
that the employee was reimbursed in accordance with the applicable
regulations, and since these regulations were issued pursuant to
statutory authority, they have the force and effect of law. We
settle claims only on a legal basis and cannot waive or modify the
regulations in individual cases.
Accordingly, the claim is denied.