s003962

Office of the General Counsel

Matter of: [xxx]
Date: December 20, 1999
File Number: 003962

OPM Contact: Jo-Ann Chabot

An employee of the [agency] filed a claim for a living quarters allowance (LQA) from October 8, 1998 to the present. The claim is denied for the reasons stated below.

The claimant states that he was released from military service on October 31, 1994, while he was stationed overseas, and that the military provided him with a five-year entitlement for return transportation to the United States. The claimant advises that he thereafter stayed overseas because he was offered a job with a United States contractor, but the contractor did not provide return transportation to the United States. The claimant states further that he began working for the [agency] in his current overseas position on February 2, 1997. On August 4, 1999, the [agency] denied the claimant's request for an LQA. The agency has advised that officials at the Department of State, responding to the claimant's inquiry, opined that he is not eligible for an LQA.

Entitlements to LQAs are governed by the Department of State's Standardized Regulations (DSSR). The claimant argues that DSSR 031.11 applies to him on the basis that his actual residence is [xxx]. DSSR 031.11 concerns LQAs for employees recruited in the United States, and specifies that LQAs 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." (Emphasis added.) The claimant applied for his current position, and was selected and hired to fill it, while he was overseas. Therefore, DSSR 031.11 does not apply to him.

DSSR 031.12 concerns LQAs for employees recruited outside the United States. It provides in relevant part that an LQA may be granted to an employee who is recruited outside the United States to fill overseas positions when: (1) the employee's actual place of residence in the place to which the quarters allowance applies at the time of its receipt is attributable to his employment by the United States Government; and (2) prior to the current appointment, the employee previously had been continuously employed by the United States Government, a United States firm, organization, or interest, or other specified organizations under conditions providing for the employee's return transportation to the United States. The claimant does not fulfill the second requirement.

In addition, DoD regulation, 1400.25-M, subchapter 1250, paragraph E 1a (2)(a), specifies that, under DSSR 031.12(b), service members and civilian employees shall be considered to have substantially continuous employment for up to one year from the date of separation or when transportation entitlement is lost, or until the retired or separated member uses any portion of the entitlement for government transportation back to the United States, whichever occurs first. The claimant's separation from military service occurred on October 31, 1994 and he was not appointed to a civilian position with the United States Government until February 2, 1997. Under the DoD regulation, his period of "substantially continuous service" expired on October 31, 1995.

Accordingly, the claimant is not entitled to an LQA. Therefore, the [agency's] that he submitted to the Office of Personnel Management is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.