Washington, D.C.
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Army Medical Command
U.S. Department of the Army
Sembach, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/27/2020
Date
The claimant is a Federal civilian employee of the Regional Health Command Europe, U.S. Army Medical Command, U.S. Department of the Army (Army), in Sembach, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA) for the period of April 1, 2019, to June 22, 2019. We received the claim on August 20, 2019, and the agency administrative report (AAR) on November 5, 2019. For the reasons discussed herein, the claim in denied.
The claimant was reassigned effective March 31, 2019, to his Army position located in Sembach, Germany. He requested and was approved delayed travel for his family to allow his children the opportunity to complete the school year in the United States. He was informed of the availability of VSMA in March 2019, and was advised to submit a request including documentation from his children’s school stating the date their school years end. After arriving in Germany, the claimant forwarded his VSMA request to the Regional Health Command Europe for approval. In his request, the claimant states his family was not relocating to Germany immediately after the school year ends to handle personal business and the sale of their house. After the request was approved, it was forwarded to the Civilian Human Resources Agency (CHRA) Europe for processing. The claimant was informed he needed to submit a foreign allowances application (Standard Form (SF)-1190) request for VSMA for his spouse and dependent children, which he completed and signed May 8, 2019. The record shows the claimant’s children finished the school year May 23, 2019, and May 24, 2019, respectively. In late May, he was informed his spouse needed to sign the SF-1190, which she did May 31, 2019. On June 22, 2019, the claimant’s spouse and dependent children arrived in Germany.
In a memorandum dated July 18, 2019, U.S. Army, Europe issued a final agency decision denying the claimant’s VSMA, stating:
…Even though [claimant] prepared his written request before he departed the United States, of relevance is the submission of the SF1190. Here, [claimant] did not complete and sign the SF1190 until 08 May 2019; in addition, his spouse [claimant’s spouse], did not sign the SF1190 until 31 May 2019…We generally consider the date of the SF1190, signed by the employee and his/her spouse as the date of submission of the claim, even though [claimant’s spouse] did not sign the document until much later…However, since the school year ended on 23 May 2019, and any time thereafter cannot be considered for VSMA purposes, regrettably, the request is denied…
The Department of State Standardized Regulations (DSSR) contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.
Section 261.1 of the DSSR states:
"Separate maintenance allowance" (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. There are three types of SMA: Involuntary (ISMA), Voluntary (VSMA), and Transitional (TSMA):
Section 261.1 further states:
"Voluntary separate maintenance allowance" (VSMA) may be granted to an employee who personally requests such an allowance, based on special needs or hardship involving the employee or family member(s). (See 262.2.).
Section 262.2 of the DSSR states:
An agency may authorize VSMA when an employee requests VSMA for special needs or hardship prior to or after arrival at post for reasons including but not limited to career, health, educational or family considerations for family members as defined at DSSR 040m. Dependent children, including sisters and brothers, must be under age 18 or incapable of self-support, unless they are attending secondary school (i.e., grades 9-12). (See also 264.2.)
Unless specifically designated otherwise by the head of agency, family members on VSMA are considered to be officially residing in the U.S.
Section 265.1 of the DSSR states:
Upon Assignment to a New Post, the grant of ISMA or VSMA to an employee in connection with assignment to a new post shall commence as of the latest of the dates on which the:
(1) employee submits SF-1190 application for SMA grant (See also 262.4a and 262.4b); or
(2) employee begins official travel under an assignment order; or
(3) separation from the family member occurs (See also 263.8).
The facts and circumstances surrounding the claim demonstrate that VSMA was requested based on the claimant’s dependent children completing the school year in the U.S. before his family accompanied him in Germany. The record shows that although the claimant completed, signed, and submitted an SF-1190 to the agency on May 8, 2019, his spouse did not sign the SF-1190 until May 31, 2019. As the agency points out, an integral part of the grant of SMA is the signature of the spouse for whom the allowance is paid, and is specifically required on form SF-1190. According to agency policy, the date found on the SF-1190 is the official date of submission. Therefore, relying on the explicit language of DSSR 265.1(1), coupled with a reasonable agency policy, the claimant’s request for VSMA is denied because the claimant’s spouse did not sign and date the SF-1190 until after the dependent children completed the school year. The claimant is further precluded from receiving VSMA for the time between when his spouse signed and dated form SF-1190 and when his family arrived in Germany because his family was managing personal business and selling their home, which does not meet the criteria of a VSMA request.
The statutory and regulatory languages regarding VSMA are permissive and give agency heads considerable discretion in determining whether to grant VSMA to agency employees. Thus, agencies have the authority to deny or withhold VSMA payments from an employee when governing regulations justify such actions. OPM does not question an agency’s decision to deny or withhold VSMA unless the agency’s actions are determined to be 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.
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.