Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Command
U.S. Department of the Army
Wiesbaden, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/27/2024
Date
The claimant is a Federal civilian employee of the U.S. Army Installation Management Command, U.S. Department of the Army (DA), in Wiesbaden, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA). We received the claimant’s request from her representative on December 14, 2022, the agency administrative report (AAR) on February 24, 2023, and the claimant’s comments to the AAR on April 27, 2023. [1]
On January 23, 2020, the claimant was appointed to a nonappropriated fund (NAF) position as Human Resources Specialist (NAF/Employee Relations), NF-0201-4, with the Morale Welfare Recreation Fund, Civilian Human Resources Agency (CHRA), NAF Enterprise Management Employee Relations Group (EMERG) in Kaiserslautern, Germany. The claimant was granted and received LQA while employed in the NAF position. By memorandum dated June 16, 2021, the claimant was notified of a management directed reassignment to relocate her position from Kaiserslautern, Germany, to Fort Lee, Virginia, effective on the pay period beginning 45 days after the date of the notification. The claimant, however, remained in Germany and applied for, was selected and offered an appropriated fund (APF) position with DA. The claimant resigned from her NAF position on September 26, 2021, and the LQA was terminated as of the same date. Effective September 27, 2021, she was appointed to her current position of Civilian Misconduct Actions Specialist, GS-0301-11 in Wiesbaden, Germany.
The CHRA considered the claimant eligible for LQA upon her appointment to the APF position with DA under the provisions of Department of State Standardized Regulations (DSSR) section 031.11, in connection with the Department of Defense Instruction (DODI) 1400.25-V1250, paragraph E2.2.j., and Army in Europe Regulation (AER) 690-500.592, paragraph 7.d., as an employee initially recruited in the United States. This determination, however, came into question when the U.S. Army Europe and Africa (USAREUR) G1, Civilian Personnel Division reviewed a request from the claimant for exception to agency policy for authorization to receive LQA for her then quarters outside of a 50-miles radius from her new post of assignment. By memorandum dated June 1, 2022, the agency denied her request for exception to agency policy, and explained its decision for not considering the claimant eligible for LQA under her current position, stating in part:
….Based on the information available, [claimant] initially arrived from her actual place of residence in Yucca Valley, CA, in late January 2020 to assume a position as Human Resources Specialist (NAF/Employee Relations), NF-0201-04, with the Morale, Welfare, and Recreation Fund, Civilian Personnel Office, in Kaiserslautern, Germany, effective 23 January 2020. Her hiring documents state that a government-funded permanent change-of-station move would be authorized; however, LQA would not be authorized. Her DA form 3434, Notification of Personnel Action-Nonappropriated Funds Employee, codified her employment as of 23 January 2020 in a NAF instrumentality in Kaiserslautern, Germany, and makes no mention that she would be eligible for LQA.
AR [Army Regulation] 215-3, paragraph 2-5b, provides requirements relevant to recruitment of NAFI [nonappropriated funds instrumentality] personnel, in general, and mentions at paragraph 2-5b.(11) and (12) that the vacancy announcement must include a “Statement that PCS [permanent change of station] costs will or will not be paid and specifically identified authorized expenses for regular positions NF-3 and above (not to exceed allowance JTR)” (see 2-5b.(11) and a “Statement that allowances, differentials, or incentives will or will not be paid specifically identify authorized expenses, if applicable” (see 2-5b.(12))….Only at a later time when a tentative job offer was extended, specifically concerning the grant of LQA, [claimant] indicated that she would not accept the offer without the allowance. Thus, a decision was made, unclear by whom, to authorize her LQA; this is problematic as it is inconsistent with the AR 215-3, paragraph 2-5b(12) in conjunction with paragraph 3-24 and associated DOD guidance, cited at paragraphs 1c. and 1d. Our position is to not perpetuate a potential error administrative or otherwise, or a misinterpretation or misapplication of existing guidance with respect to the grant of an allowance, and therefore cannot consider [claimant] eligible for LQA at this time.
The claimant disagrees with the decision made by USAREUR G1, Civilian Personnel Division to deny continuation of the allowance. She states that the agency’s argument is based on “the questionable assumption that CHRA NAF authorization for LQA may have been in error, not on a written law, regulation or policy.” She further states that to support its position, “the Agency incorrectly quotes Army Regulation 215-3, 2-5 (b). Section (b) states that a vacancy announcement will include a statement, whereas CPD’s memo, paragraph 3 (a) states that a vacancy announcement must include a statement on PCS costs and allowances (2-5 (b)(11) and (12)).” Thus, she believes that by “incorrectly using the word must where the regulation used the word will, the Agency is arbitrarily changing the intent of the proponents of the regulation.” Additionally, in her response to the AAR, the claimant further states:
The announcement was silent about LQA, and stated that “Employment Overseas provides a lot of additional benefits and entitlements,” and linked applicants to a website that provided general information about all overseas allowances, including LQA (claim brief Ex. 16, brief page 71).
The NAF Request for Personnel Action, form NF-52 (equivalent to SF-52), also made no mention of LQA. That form is only accessible to HR personnel and employees when they gain access to their eOPF, and it is a temporary document. The Notification of Personnel Action, form DA-3434 (SF-50 equivalent), did not include any statement about payment of allowances, either.
The only place where the statement that “LQA will not be paid” exists is an HR report called the RPA [Request for Personnel Action] tracker. It is not the same as the RPA, but rather an internal record of the processing of all RPA’s through the Army HR systems. While the NF-52 for the Claimant’s appointment is no longer available, a review of Claimant’s last personnel action under the NAFI, her resignation, clearly demonstrates the difference between those documents, and are provided for to show that distinction (Enclosure 10).
Moreover, the claimant asserts that LQA is expressly permitted under her appointment because the announcement explicitly stated that overseas allowances were authorized. Therefore, she believes that her past NAF instrumentality (NAFI) employment should have no bearing on her current eligibility for LQA. However, we must address the claimant’s LQA eligibility as a NAF employee insofar as it impacts her LQA eligibility when she transitioned from the NAF to the APF employment. See OPM File Number 14-0020; December 17, 2014.
The claimant’s Standard Form 50, Notification of Personnel Action, effective September 27, 2021, codes her appointment as a “Career Appointment” and includes the remark that an appointment affidavit was executed on September 27, 2021. Contrary to the agency determining eligibility for LQA based on the circumstances existing prior to the claimant’s initial NAF appointment, her subsequent Federal service appointment with DA constitutes an appointment, thus we must determine the claimant’s eligibility for LQA based on the circumstances existing prior to her current DA appointment. The claimant was physically residing in Germany when she applied for, was offered and accepted the APF position with DA. Therefore, for purposes of LQA eligibility she is considered an employee recruited outside the United States.
The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Under section 013, of the DSSR, 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, Volume 1250 implements the provisions of the DSSR for DA employees but may not exceed its scope, i.e., extend benefits that are not otherwise permitted under 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.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
- 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
- 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.]
Relevant to the claimant’s situation, DoDI 1400.25-V1250, Enclosure 2, paragraph 2.j., which provides DoD policy for the granting of LQA for NAF employees appointed to an APF position, states:
Nonappropriated fund employees who were eligible for a living quarters and related allowances upon their initial hire, and who are appointed to an appropriated fund position without a break in service, continue to be eligible for allowances in accordance with Comptroller General Decision B-184972 (Reference (h)), provided they had received the allowances for at least 1 year.
The claimant meets DSSR section 031.12a because her place of residence in the place to which the quarters allowance applies (Germany) is fairly attributable to her employment by the United States Government. The claimant also meets the requirements of DSSR section 031.12b because prior to her Federal civilian position with DA, the claimant was employed by a NAFI, a qualifying employer under section 031.12 (b)(1) and the organization recruited her in and provided for her return transportation to the United States. Included in the record is a copy of the “Department of the Army Transportation Agreement, Nonappropriated Fund Employee,” dated December 4, 2019, which shows that as part of her conditions of employment for a service obligation of 12 months, the claimant would be provided a transportation entitlement for return travel and transportation to her place of residence at the time of appointment, which the agreement identifies as being in Yucca Valley, California. Therefore, prior to appointment to her DA position she was recruited in the United States by a NAFI and had been in substantially continuous employment by such employer under conditions which provided for her return transportation to the United States as required under DSSR 031.12b. [2] Furthermore, supplemental provisions in the DoDI 1400.25-V1250, Enclosure 2, paragraph 2.j., limits the grant of LQA to former NAF employees upon transfer to an appropriated fund position without a break in service to instances when they were in receipt of the allowance upon their initial hire and for at least 1 year. The claimant received LQA when she was hired by the NAFI and did so for at least 1 year, thus, she meets supplemental agency requirements for LQA eligibility.
The agency’s position, however, is that even if the claimant met the basic eligibility requirements for LQA at the time she was hired to her NAF position, under the provisions of the DSSR, an agency may develop further implementing instructions to determine under what circumstances LQA may be authorized as long as the applicant meets eligibility criteria. See DSSR section 013. Accordingly, the agency points out that Army Regulation (AR) 215-3, Morale, Welfare, and Recreation, Nonappropriated Funds Instrumentalities Personnel Policy dated August 29, 2019, requires that NAF vacancy announcements specifically state that certain allowances, such as a PCS move and LQA are authorized provided selectees met relevant eligibility requirements. Specifically, the agency cites section 2-5. Preliminary actions and recruitment, paragraph (b) of the regulation, which states that “[a]ll vacancy announcement will be posted on USAJobs and will contain the following actions (emphasis added):
(11) Statement that PCS costs will or will not be paid and specifically identify authorized expenses for regular positions NF-3 and above (not to exceed allowance in the JTR).
(12) Statement that allowances, differentials, or incentives will or will not be paid and specifically identify authorized expenses, if applicable.
The agency states that although the vacancy announcement did specify a PCS would be authorized, which is consistent with the RPA, it did not specify that LQA would be authorized. Thus, the agency concludes that applicable requirements for authorization of LQA for the NAF position were not properly applied as directed by agency policy. The agency also states (and the record shows) that the claimant requested the allowance after receiving the tentative job offer, and the agency’s position is that the allowance is not negotiable, thus, the agency states that the claimant seemingly received an unfair advantage over other applicants, to include those, who refrained from applying for the position because of the circumstances that LQA would not be authorized when it was announced, thus depriving them of an allowance that was afforded to the claimant outside regulatory requirements. We note that the use of the term “will” in the regulation is mandatory rather than permissive, and supports the agency’s determination to discontinue LQA under the claimant’s current position. When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, March 15, 1982. Accordingly, the claim is denied.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. 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). The claimant has failed to establish a right to LQA. When an agency decision is within their discretionary authority and 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 agency’s decision.
The claimant also requests payment for attorney fees and costs. OPM’s claims authority under 31 U.S.C. 3702(a)(2) is narrow and limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining an employee’s entitlement to compensation or leave. Therefore, OPM’s has no authority to direct such payment from agencies.
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.
[1] By letter dated December 28, 2022, the claimant’s legal counsel withdrew as her representative for this claim.
[2] The agreement does not stipulate whether receipt of the transportation entitlement would be affected by a subsequent overseas appointment or movement from a NAF to an APF position, thus absent this information, we consider the agreement valid for purposes of LQA eligibility under 031.12b.