Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Kimberly A. Steide, DPA
Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance


02/03/2025

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Date

The claimant is a Federal civilian employee of the 21st Theatre Sustainment Command, Area Support Team Balkans, U.S. Department of the Army, in Thessaloniki, Greece. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of involuntary separate maintenance allowance (ISMA). We received the claimant’s request on December 7, 2023, and the agency administrative report (AAR) on April 5, 2024. For the reasons discussed herein, the claim is denied.

Effective August 13, 2023, the claimant was appointed to the position of Information Technology Specialist (Policy and Planning), GS-2210-12, in Thessaloniki, Greece, a post where accompanying family members are not allowed. Consequently, the claimant requested ISMA on behalf of his spouse. Prior to this appointment, he had a stateside assignment with the Department of the Navy, in Key West, Florida. The agency denied the claimant’s request for ISMA under section 263.1 of the Department of State Standardized Regulations (DSSR), which establishes that “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family,” and separate maintenance allowance (SMA) would not be warranted. In its decision dated December 1, 2023, denying the claimant’s request for ISMA, the agency states:

It is unclear from the records if [claimant] and [claimant’s spouse] resided in the same household prior to his departure for his current assignment. Based on the information available, [claimant] was previously assigned to a position with the Department of the Navy, Joint Interagency Task Force South, at Key West, FL; he resided at a residence in Big Pine Key FL; however, [claimant’s spouse], according to an SF-1190, resides at an address in Midway, Georgia, which is a significant distance away from Key West, FL. In anticipation of his change of station move to Thessaloniki, Greece, [claimant] took up temporary lodging at the Navy Lodge Key West, commencing on 28 July 2023 until 09 August 2023, as a single occupant with a pet; he then stayed at the Courtyard Marriott Miami Airport from 10 August through 13 days, for additional four days, with one other person.

In its AAR, the agency further states:

….[claimant] having not provided any information of where his wife resides on the SF1190 with which he requested the allowance and only showing her residing at an address in Georgia when he filed his claim with your office after we mentioned anything about a Georgia residence in our memorandum to deny his claim for ISMA, is insufficient. Further, [claimant] seems to contradict himself with his statement in his claim to your office that she would reside in Georgia while their home would be rented out, however, when he requested LQA for his rental quarters in Thessaloniki, he advised the agency that she resides in their residence in Florida. It is unclear where exactly [claimant’s spouse] resided and currently calls her principal residence; lack of clarity and to certain measure, inconsistency, can only result in a denial of his claim for ISMA.

The claimant disagrees with the agency’s determination and states:

….My wife and I lived together during the entire duration of my station in Key West, Florida. The reason that my wife has the address of 31 Mulberry Run Court, Midway Georgia is that she [sic] where is currently living while our home in Big Pine Key, Florida is being rented out. We lived together the entire time until I PCS’ed and she was with me in both hotel locations until I left for Greece, and we are both residents of Florida. I will add supporting documentation with this packet of appeal.

The claimant submits the following documents to OPM to support his claim that his spouse resided with him in Key West, Florida until his departure to his unaccompanied post in Greece: an offer of employment letter from the 1446-Lower Keys Medical Center written to his spouse dated December 27, 2021, including an orientation date of February 7, 2022, but no start date or home address for spouse documented on the letter; screenshot of email with job offer from Walgreens showing tentative start date of employment of August 31, 2022, but no name or address of mail recipient shown; email dated September 29, 2022, offering the claimant’s spouse employment at the Bruce W. Carter, Department of Veterans Affairs (VA) Medical Center (VISN 8) listing the duty station for the position as “Key West, FL” and instructing the employee to report to duty on October 24, 2022 to the Miami Medical Center, but no home address noted for the employee; SF 50 for position with VA effective January 1, 2023, with no home address noted but showing a duty station of “OPC/Key West, FL”; jury service summons for the claimant’s spouse with start date of January 16, 2024 listing address in Big Pine Key, Florida; and residential lease agreement for the property at [address for property at Big Pine Key, Florida], electronically dated and signed on July 2023 for the period of August 1, 2023-July 31, 2024, however, contact information section on residential lease provides for claimant overseas mailing address but is left blank spouse’s address. In its AAR the agency asserts it did not receive the documents listed above for review, and in an email dated June 3, 2024, to OPM, the agency adds that as it did not receive a request for reconsideration for the grant of ISMA on behalf of the claimant’s spouse following the agency’s submission of its AAR, its position on the matter, as communicated in its AAR has not changed. 

The DSSR sets forth basic eligibility criteria for the granting of SMA in section 260.  Section 261.1.a. 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.  

ISMA is a type of SMA which, under section 261.1.a(1), may be granted because of dangerous, notably unhealthful, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government.

 Section 261.2 further emphasizes that:

SMA is intended to assist in offsetting the additional expenses incurred by an employee who is compelled by the circumstances described below [in section 262] to maintain a separate household for the family or a member of the family. [italics added]

Section 263.1 further notes that “[w]hen a member of family would not normally reside with the employee, this individual does not meet the definition of member of family” and thus in these circumstances SMA is not warranted. 

The intent of the regulations is clearly that SMA may be granted only in those cases where the employee would otherwise be compelled to maintain a separate household for a family or family member and thus would be burdened with assuming the additional expenses associated therewith, not to defray the costs of an existing housing arrangement. The documents submitted by the claimant either do not provide a home address for his spouse or are dated post the claimant’s effective date of assignment to Greece, thus makes it difficult to establish the relevancy of the documents for determining whether he and his spouse resided in the same household prior to his overseas assignment.

Furthermore, as stated by the agency, the record shows that upon the claimant’s request for living quarters allowance (LQA) for his rental quarters in Thessaloniki, he lists his spouse as residing at the Big Pine Key, Florida address on the Living Quarters Allowance Annual/Interim Expenditures Worksheet (DSSR 130) (Line 8: “Family domiciled away from post” and “Residence address”) dated and signed by him on October 3, 2023.[1] However, this is contradictory to his statement in his claim to OPM dated December 4, 2023, in which the claimant discloses that his spouse currently lives in Midway, Georgia while their home in Big Pine Key, Florida, is being rented out. Although, the copy of the residential lease agreement submitted by the claimant supports his assertion that his spouse does not live at the property in Big Pine Key, Florida because it is being rented (at least for the period of August 1, 2023, to July 31, 2024), it does not show if claimant and his spouse resided together in Georgia, Florida, or elsewhere, prior to his overseas assignment effective August 13, 2023. Therefore, it cannot be stated with confidence that claimant would normally reside with his spouse and that his assignment to Greece was the reason for their separation. 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. Therefore, DSSR section 263.1, by its plain terms requires that when a member of family would not normally reside with the employee, this individual does not meet the definition of member of family and thus, the grant of ISMA is not warranted. Accordingly, the claimant’s request for ISMA is denied.

SMA is a discretionary allowance, not an entitlement. The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees. Thus, an agency may deny SMA payments 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).  In this case, the claimant has failed to do so.  Since an agency decision made in accordance with established regulations and within its discretionary authority 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 the OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

[1] Eligibility for SMA is contingent on the employee’s eligibility for LQA, therefore the claimant submitted DSSR 130 worksheet with his request for LQA (SF-1190).

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