Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Hohenfels, Germany
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/10/2015
Date
The claimant is a Federal civilian employee of the Department of the Army (DA), in Hohenfels, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA). We received the claim on June 2, 2014; additional information from the claimant on June 12, 2014, including a designation of representation and a copy of a Memorandum of Law; and the agency administrative report (AAR) on July 16, 2014. For the reasons discussed herein, the claim is denied.
The record shows the claimant entered active duty military service with the U.S. Army in Illinois on March 1, 1990. On June 5, 2002, he separated from active duty military service and enlisted in the U.S. Army Reserve at Stuttgart, Germany, on the following day. He remained in Germany, accepting part-time employment with the Army and Air Force Exchange Service (AAFES), a non-appropriated fund (NAF) instrumentality, from June 15, 2002, to October 20, 2002, as he reported in his Questionnaire for LQA. The claimant states he was on “[a]ctive [d]uty orders for special work at the Marshall Center, Garmisch [Germany]” from August 26, 2002, to September 23, 2002. He subsequently deployed on active duty military service from October 21, 2002, to April 19, 2003, to the Republic of Kosovo. The claimant applied for (vacancy was advertised from September 4, 2002, to September 11, 2002), was offered, and accepted his current Federal civilian position with DA, effective May 5, 2003.
Shortly after the claimant's acceptance of his current Federal position in May 2003, the agency concluded he was eligible for and thus granted him LQA. On May 1, 2013, the agency notified the claimant that a review of his records had determined he had been erroneously found eligible for LQA, and that the allowance was therefore being terminated. The basis for this determination was that he did not meet LQA eligibility provisions in the Department of Defense Instruction (DoDI) 1400.25-V1250. The agency explains in its May 2013 letter:
During this audit, you were identified as an employee recruited outside the United States to a non-appropriated fund position prior to your appointment into appropriated fund Federal civilian service, who did not meet the requirement of DoDI 1400.25, Volume 1250, Enclosure 2, paragraph 2j. Specifically, you did not first receive LQA in your non-appropriated fund position for a minimum of one year before beginning your appropriated fund position.
However, in its AAR to OPM, the agency appears to amend its rationale for disallowing the claim by stating the claimant is not eligible for LQA under applicable rules and regulations because he “had not been recruited in the United States or one of the enumerated territories or possessions by his previous employer.” The agency further explains:
During the audit, [the claimant] was identified as erroneously receiving LQA because of the Army’s misinterpretation of the “substantially continuous employment” requirement in [Department of State Standardized Regulations (DSSR)] 031.12b. [The claimant] came to the overseas area as a military service member and was released from active duty effective June 05, 2002 in Stuttgart, Germany. He was employed at the [AAFES] in Garmisch, Germany effective June 15, 2002 until October 20, 2002 according to the LQA Questionnaire completed by [the claimant].
[The claimant’s] next period of service was in the Army Reserves. Based on the information submitted to OPM, it appears that inactive duty points were credited for the timeframe August 17, 2002 through August 16, 2003. On the LQA Questionnaire he initially identified the timeframe as October 21, 2002 until April 18, 2003. DD 214 submitted shows that he entered active military service on October 21, 2002 in Bamberg, Germany and was released from active duty on April 19, 2013 in Bamberg, Germany.
The claimant appears to rest his assertion of LQA eligibility on (1) that he meets DSSR section 031.12b as he “had no break in service in the transfer from Active Duty to the Reserves and was in substantial, continuous employment with the US Armed Forces when [he] was offered and accepted the DA civilian position, and (2) the “Memorandum of Law in Support of Appeal to OPM to Dispute Denial of LQA” signed by his duly appointed representative.
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. Thus, DoDI 1400.25-V1250 implements 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 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:
a. 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
b. 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.]
In its description of circumstances surrounding an employee’s recruitment and employment occurring immediately “prior to appointment” as the basis for LQA eligibility, the DSSR makes clear that eligibility is established at the time of appointment; i.e., based on the circumstances existing prior to the employee’s appointment to the Federal service. In considering the circumstances prior to the claimant’s current DA appointment, we conclude he does not meet the basic eligibility criteria under the DSSR. The record shows he was employed in a NAF position prior to his DA appointment. The NAF organization had recruited him in June 2002 from Germany following his separation from active duty military service. The record shows he was employed with the NAF organization until October 2002. Thus, while employed with the NAF organization, he applied for his current DA position which was advertised from September 4 to 11, 2002. Although his place of residence was attributable to his employment by the United States Government, thus satisfying section 031.12a, he no longer retained his status as having been recruited in the United States or one of the enumerated territories or possessions as required by section 031.12b. Further, there is no indication the claimant’s NAF employment provided for his return transportation to the United States or one of its enumerated territories or possessions as required by section 031.12b. As such, the claimant does not meet section 031.12b and on this basis alone is ineligible for LQA. See OPM File Numbers 13-0051 and 14-0020.
The record shows he was officially appointed to his DA position eight months after the initial recruitment in May 2003, a delay we assume was partly attributable to his Kosovo deployment from October 2002 to April 2003. Even assuming, arguendo, his Kosovo deployment was considered his employment immediately preceding appointment (in that he applied for, was offered, and accepted the DA appointment prior to his Kosovo deployment), his intervening employment with the NAF organization disqualifies him from LQA eligibility under section 031.12b.
Although we explain the reasons for his LQA ineligibility above, we will nonetheless address assertions raised by the claimant. He disagrees with his agency’s determination that he does not meet LQA eligibility provisions in DSSR section 031.12b, stating that he should be eligible for LQA “simply because [he] was on full-time Active Duty with the US Army and deployed in support of a major contingency operation when [he] was offered and accepted [his] DA civilian position.” He also states in his claim request to OPM:
My contention is that when I transferred from the Active Army into the US Army Reserves here in Europe and remained in the Reserves until this day, I never left the “employing government agency” that brought me to Europe, the Armed Forces of the United States Government, the US Army. I began attending Army Reserve battle assemblies in July 2002 and in October 2002[.] I was mobilized, activated and deployed to Kosovo to support Operation Joint Forge/Guardian. It was during this Active Duty deployment that I was offered and accepted the DA civilian position…
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 b(1) through b(4), and which entity (i.e., the singular usage of “such employer”) recruited the employee in and provided return transportation to the United States or its territories or possessions. This encompasses prior employment by private firms, international organizations, foreign governments, and the U.S. Government including the military. The application of section 031.12b to the conditions of prior civilian employment is fairly clear, in that there must be continuity of employment (i.e., “substantially continuous employment”) by a single employer from the time of initial recruitment in the United States by that employer up to the point of Federal appointment. Section 031.12b does not, however, address the complicating circumstances of long-term military service such as periodic enlistments and/or reenlistments, movement between the regular military and the reserves, and reactivations to active duty as they relate to issues regarding the place of recruitment and whether there has been continuity of employment by a single employer.
For purposes of determining LQA eligibility in the case of military members, DA relies on the issuance of the DD 214, Certificate of Release or Discharge From Active Duty, as the basis for distinguishing separate recruitment actions. The DD 214 is issued upon a military service member’s retirement, separation, or discharge from active duty and is recognized as the fundamental military service document. A new DD 214 is issued following release or discharge from what the Service regards as each separate period of military service, with the “place of entry into active duty” for that period of service identified in block 7a. The DA regards the separation from military service documented by a DD 214 as a termination of such employment regardless of whether the individual subsequently re-enters the military in some capacity, and any subsequent re-entry as a new recruitment that in turn generates issuance of a new DD 214 upon its termination. See OPM File Number 12-0018.
The claimant asserts he never left the “employing government agency” that brought him to Europe, instead transferring from active duty military service to the Army Reserve. The record shows periods of both active and inactive duty as a reservist. Thus, implicit in his rationale is that time spent on inactive duty should be treated similarly as active duty with both considered continuing “employment” for purposes of DSSR section 031.12b. The record includes a DD 214 showing the claimant entered into active duty in Illinois as the “place of entry into active duty” on March 1, 1990, until he separated on June 5, 2002, whereupon he chose to enlist as a reservist at Stuttgart, Germany. He subsequently accepted NAF employment from June to October 2002. Approximately two months after enlisting in the Army Reserve, the claimant states he was then on “[a]ctive [d]uty orders for special work at the Marshall Center, Garmisch” from August 26, 2002, to September 23, 2002, although no DD 214, military order, or other service document was provided for this period. Nearly a month after the end of his work at the Marshall Center, he was deployed on active duty military service to Kosovo from October 21, 2002, to April 19, 2003. The DD 214 documenting his Kosovo deployment shows his “place of entry into active duty” as Germany, rather than the location of his initial enlistment in the United States. The record, documenting both active and inactive periods as a reservist, includes DD 214s marking the end of the claimant’s active duty military service periods. Within the context of the DD 214 serving as the basis for distinguishing separate recruitment actions, the claimant’s assertion that his string of active and inactive duty military service periods while in the Army Reserve is tantamount to continuing “employment” for purposes of section 031.12b is unsupportable.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area. If a person is already living in a foreign area, that inducement is normally unnecessary. Furthermore, 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.
Included in the claim to OPM was the aforementioned Memorandum of Law submitted by legal counsel on behalf of individuals challenging the “Department of Defense’s … recent determination that they are not eligible to receive living quarters allowance (“LQA”) in the future due to the fact that DoD has now decided that the LQA it had granted to these employees for the past several decades – pursuant to its consistently applied interpretation of its own regulations – was in error…” We note the Memorandum relates exclusively to the termination of LQA grants on the basis of the employee having had more than one overseas employer prior to appointment to his or her Federal position. Although we outline the reasons for the claimant’s ineligibility for LQA above, he has included the Memorandum in his claim and we will address certain assertions made in it.
OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C.§ 3702(a)(2) is narrow and limited to deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits which an employee may be entitled to or granted.
When OPM adjudicates a claim for compensation submitted pursuant to 31 U.S.C. § 3702(a)(2), OPM starts by reviewing the relevant statutory authority. In this case, the Overseas Differentials and Allowances Act of 1960 (Act) establishes the statutory authority for Federal agencies to provide LQA to employees serving overseas. 5 U.S.C. § 5921 et seq. One of the stated purposes of the Act is to “facilitate[e] for the Government the recruitment and retention of the best qualified personnel for civilian service overseas” in order “to improve and strengthen the administration of overseas activities of the Government[.]” Section 101 of Pub. Law. 86-707, 74 Stat. 792 (1960); Trifunovich v. United States, 196 Ct. Cl. 301, 305 (1971).
The Act provides in relevant part:
(a) When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following allowances may be granted when applicable:
(1) A temporary subsistence allowance . . .
(2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water . . .
(3) Under unusual circumstances, payment or reimbursement for extraordinary, necessary, and reasonable expenses . . .
5 U.S.C. § 5923(a) (emphasis added).
Section 5922 (“General Provisions”), which governs all allowances and differentials authorized under the Act, reiterates that such allowances “may be granted to an employee officially stationed in a foreign area.” 5 U.S.C. § 5922(a) (emphasis added). It also provides that the allowances “shall be paid under regulations prescribed by the President.” 5 U.S.C. § 5922(c).
The Act specifically authorizes the President to promulgate regulations governing “(1) payments of the allowances and differentials and the respective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the categories of employees to which the rates apply; and (3) other related matters.” Id. The President has delegated his authority to issue such regulations to the Secretary of State. (Exec. Order 10903, 26 Fed. Reg. 217 (Jan. 9, 1961)). The Secretary of State discharged this responsibility by promulgating the DSSR, which prescribes the allowances and benefits available to civilian employees assigned to foreign areas. Section 031 of the DSSR sets a baseline for employee eligibility for LQA and emphasizes in numerous subsections that LQA “may be granted” to employees serving overseas. (DSSR §§ 031.11, 031.12, 031.14).
Since the language of the statute makes clear the granting of LQA is discretionary, we then look to the DSSR as the controlling basic regulations implementing the provisions of law pertaining to specific allowances and differentials. “The statute [5 U.S.C. § 5922] and DSSR regulations, standing alone, are only money-authorizing and are not money-mandating” and therefore, are discretionary. Roberts v. United States, 745 F.3d 1158, 1165 (Fed. Cir. 2014). Where the DSSR gives discretion to employing agencies to issue implementing regulations, we look to those which may further restrict the granting of the discretionary allowance. See, e.g., DSSR §§ 013, 40(d)-(e). However, if agency implementing regulations or policies conflict with the DSSR, the DSSR controls. Also, where the DSSR is silent on an issue, agency implementing regulations or policies control unless they are in conflict with the statute.
The claimant’s representative alleges that “nothing in the words ‘substantially continuous employment’ can be read to limit the number of qualified employers an employee could have prior to appointment to one employer” and cites various definitions from multiple editions of Black’s Law Dictionary in support of his argument. We find these arguments unpersuasive. Substantially continuous employment, as used in DSSR 031.12b(4), must be with an employer (singular) which recruited the employee in the United States and induced the employee to accept overseas employment. Therefore, the claimant does not meet LQA eligibility criteria under DSSR section 031.12b that prior to appointment, he was recruited in the United States by one of the listed employers, and was in substantially continuous employment by “such employer” (singular) under conditions providing for his return transportation back to the United States by that employer. Accordingly, his claim is denied. See OPM File Numbers 08-0009, 09-0021, 10-0018, 10-0037, 11-0005, 11-0012, 12- 0019, and 12-0020 at http://www.opm.gov/policy-data-oversight/pay-leave/claimdecisions/decisions/.
Further, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). Therefore, that the claimant was erroneously determined to be eligible for LQA upon his appointment to the Federal service and had received LQA based on that determination does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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.