Office of the General Counsel

Matter of: [Claimant]
Date: September 19, 2000
File Number: 00-0002

OPM Contact: Robert D. Hendler

The claimant, an employee of the [agency], asserts that his agency incorrectly denied his request for Separate Maintenance Allowance (SMA) for those periods of time when his wife resided in [city, country]. For the reasons discussed herein, the claim is denied.

The record shows that the claimant married at [city, country #1] on January 23, 1999. In a memorandum and a Standard Form (SF) 1190, Foreign Allowances Application, Grant and Report, both dated February 3, 1999, he requested SMA for his wife. The claimant acknowledges that he was on "a one year unaccompanied tour." The memorandum showed that his wife was residing in [city, country #1], but that he intended to bring her to [country #2] in the future and maintain her in a separate residence away from his duty station at his own expense because he was on a one year unaccompanied tour. On February 22, 1999, the agency approved involuntary SMA effective February 3, 1999, when the claimant signed and dated his SF1190, as prescribed by Department of State Standardized Regulations (DSSR). As acknowledged by the claimant in an October 14, 1999, letter to his agency, [country #1] was designated as the official SMA location. He was informed that SMA would terminate in the event his wife relocated to [country #2].

In his October 14 letter, the claimant stated that his wife would arrive in [country #2] on October 27, 1999, and he expected SMA would be terminated. However, his letter included an appeal based on his interpretation of DSSR Sections 264.1(1), (2), and (3). He posited that SMA should be allowable even if his wife resided in [city, country #2] as long as his position was not designated as an accompanied position and his wife was barred from living with him at [name] Village. On November 10, 1999, the agency denied the appeal, stating that "consistent with the policy of designating tours to [country #2] unaccompanied, we will not approve [country #2] as an official SMA." The record shows that the claimant's wife left [country #2] on January 27, 2000, returning to [country #1], and SMA was restored on that date.

The claimant also asserts that the agency has a limited number of accompanied positions. Therefore, "[t]o argue that my wife must be excluded because of 'adverse, dangerous, or notably unhealthy conditions warrant the exclusion of (my) family from the area' but not dozens of other families I believe negates the argument." The claimant acknowledges that the DSSR states that SMA "may be granted." However, he says that because his wife is not allowed to live on the post of assignment and he is compelled to meet the additional expense of maintaining her elsewhere, "regardless of where 'elsewhere' may be," he believes SMA is warranted. In his letter of March 28, 2000, the claimant points to the fact that there are accompanied assignments at his post, and that his agency has two such positions. He asserts that because other families are not excluded, his wife's exclusion is not supportable. In his letter of August 14, 2000, he asserts that his agency has designated 14 additional accompanied positions, and that his "agency's reasons for denying SMA if my wife should join me...no longer appear valid."

The language of the SMA regulations is permissive rather than mandatory. The language applying to SMA in 5 U.S.C. 5924, upon which the regulations are based, similarly is permissive. Under statutes that vest a degree of discretion in the administrative agencies, our review is generally confined to deciding whether an agency's action must be viewed as arbitrary or capricious or so at variance with the established facts as to render its conclusion unreasonable.

The record shows that agency's restriction of SMA to [country #1]is based on the DSSR 262.1 provision of "when the agency determines a need to exclude members of a family from accompanying an employee to the area." It is not, as asserted by the claimant, based on "adverse, dangerous, or notably unhealthful conditions." An unaccompanied tour, by definition, means that the agency has determined an employee's family is not authorized to reside at the post of assignment. As stated in the agency 's February 22, 1999, authorization letter, the post of assignment is [country #2]; it is not limited to [name] Village. The February 12, 1999, memorandum that forwarded the SMA request for action affirms unaccompanied nature of the claimant's tour.

DSSR 266.1 was triggered when the claimant brought his wife to his post of assignment on or around October 27, 1999. The regulation states that the SMA "shall be suspended the day that the family member arrives at post when the stay is or will be in excess of thirty days during the visit of a member of family to the post." DSSR 266.1 also states that SMA payments "may be resumed effective the day the member of the family departs en route to the SMA point." The record shows the agency took these actions as provided for in DSSR 266.1.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Based on the record, we cannot say that the agency's decision on denying the claimant one of a limited number of accompanied tours or its application of governing sections of the DSSR to the claimant's situation were unreasonable, arbitrary, or capricious. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See Comptroller General decision B-160107, October 7, 1966 and Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

Distribution

[claimant's name and address]

[agency human resources' office and address]