Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Saudi Arabian National Guard
Program
U.S. Army Europe and Africa
Headquarters
U.S. Department of the Army
Riyadh, Saudi Arabia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/08/2022
Date
The claimant is a Federal civilian employee of the Office of the Program Manager Saudi Arabian National Guard (OPM-SANG) Program, U.S. Army Europe and Africa Headquarters, U.S. Department of the Army (DA), Riyadh, Saudi Arabia. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of involuntary separate maintenance allowance (ISMA). We received her claim on December 15, 2021, and the agency administrative report (AAR) on April 5, 2022. For the reasons discussed herein, the claim is denied.
While working as a Testing Clerk, GS-0303-05, with the U.S. Military Entrance Processing Command and residing in Houston, Texas, the claimant accepted a promotion to a Computer Assistant, GS-0335-07, position with DA’s OPM-SANG in Saudi Arabia, and requested living quarters allowance (LQA). At the time of her promotion to the GS-07, the agency determined the claimant met eligibility requirements for LQA under the Department of State Standardized Regulations (DSSR) section 031.11, where LQA may be granted to employees recruited in the United States by the employing agency. However, the agency found her ineligible for LQA because the position did not meet the GS-09 minimum grade level requirements detailed in the Army in Europe Regulation (AER) 690-500.592. Nevertheless, the claimant accepted the GS-07 position without LQA and entered on duty (EOD) on May 12, 2019.
On November 08, 2020, the claimant accepted a second promotion within OPM-SANG to her current position as an Information Technology (IT) Specialist, GS-2210-09. At the time of her promotion to the GS-09, she requested LQA and ISMA. On October 21, 2021, the agency determined that the claimant was ineligible to receive either LQA or ISMA in her current position because her appointment to the GS-09 constituted a promotion and not an initial overseas appointment.
The claimant disagrees with the agency’s determination asserting her appointment to her current GS-09 position makes her eligible to receive LQA and, by extension, ISMA under the DSSR; Department of Defense Instruction (DoDI) 1400.25, Volume 1250; and AER 690.500-592.
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. DoDI 1400.25, Volume 1250, dated February 23, 2012, and AER 690-500.592, dated September 6, 2018, in effect when the claimant was promoted to her current position, implement the provisions of the DSSR for Department of Defense (DoD) and Army employees, respectively. Because LQA is a discretionary allowance, agency implementing regulations may be more restrictive, but not more permissive, than the DSSR, i.e., they may impose additional limitations on the granting of LQA but may not extend benefits that are not otherwise permitted by the DSSR. Therefore, an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
The claimant met LQA eligibility criteria under DSSR section 031.11, as an employee recruited in the United States. However, paragraph 7a.(1) of AER 690-500.592 limits LQA to employees recruited in the United States for positions at or above the GS-09 grade level (or GG, WG, WS, WL, or other pay-plan equivalents) or to a position that is designated as “hard-to-fill”. The claimant was appointed to her first overseas position (i.e., Computer Assistant GS-0335-07) with DA’s OPM-SANG in Saudi Arabia on May 12, 2019. However, this position did not meet the GS-09 minimum grade requirement detailed in AER 690-500.592, 7a.(1), nor is there any evidence that the Computer Assistant GS-0335-07, position was designated as “hard-to-fill”. Therefore, the agency found the claimant ineligible to receive LQA for the Computer Assistant GS-0335-07, position under the AER criteria.
While the claimant does not dispute the agency’s denial of LQA in connection with her first overseas position (i.e., Computer Assistant GS-0335-07), she seeks LQA and ISMA for her current IT Specialist, GS-2210-09 (target 11) position.
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 employed by the Federal government and living in the foreign area, that inducement is normally unnecessary. In keeping with the stated purpose of LQA as a recruitment incentive, LQA eligibility is established at the time of initial recruitment to the Federal Service. This is based on the DSSR, which set forth basic eligibility criteria for granting LQAs. Thus, any subsequent position changes (i.e., promotions, reassignments) are not “recruitments” but rather internal placements occurring within the context of that initial overseas appointment. In other words, LQA may only be conferred at the time of the appointment if eligibility requirements are met and if the agency has offered it as a recruitment incentive for the position. Therefore, since any subsequent positions held by the claimant after her May 12, 2019, appointment to the Computer Assistant GS-0335-07 position do not constitute a “recruitment” to Federal service, they may not be considered for LQA eligibility purposes. See OPM File Numbers 10-0043, July 1, 2011; 12-0038, February 4, 2014; 15-0018, October 1, 2015; 16-0049, October 25, 2017; and 21-0007, September 13, 2021.
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 and ISMA 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 section 178.105 of title 5, Code of Federal Regulations, 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). Since it is evident that the agency’s decision to deny the claimant LQA and ISMA was made in accordance with established regulations and within its discretionary authority, its decision cannot be considered arbitrary, capricious, or unreasonable. Therefore, OPM has no basis upon which to reverse the agency’s 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.