B-239150, Apr 15, 1991

B-239150: Apr 15, 1991

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

States that each civilian employee who is eligible for foreign allowances must complete and submit Standard Form 1190 and report each allowable LQA cost yearly. The agency denial of LQA is not an abuse of discretion and is not arbitrary or capricious. Is entitled to payment of living quarters allowances (LQA) for a 6-year period from December 20. Are as follows. Was submitting annual claims and accompanying receipts for LQA. He stopped submitting such claims in 1981 and his LQA entitlement was terminated in March 1983. His claims were denied by the Department of the Army. Matthews' claims for LQA are time barred under the provisions of the Barring Act of October 9. Consideration of the effect of the Barring Act is unnecessary.

B-239150, Apr 15, 1991

CIVILIAN PERSONNEL - Relocation - Overseas personnel - Quarters allowances - Eligibility CIVILIAN PERSONNEL - Relocation - Overseas personnel - Quarters allowances - Reimbursement - Deadlines DIGEST: Under 5 U.S.C. Secs. 5922 and 5923 (1988), the head of an agency has discretionary authority to grant and require an accounting of living quarters allowances (LQA) to civilian employees officially stationed in a foreign area. The applicable regulation, subchapter 1-3b(1) and (4), Civilian Personnel Manual 592, DOD 1400.25-M, Nov. 9, 1981, states that each civilian employee who is eligible for foreign allowances must complete and submit Standard Form 1190 and report each allowable LQA cost yearly. Where an employee, a Personnel Management Specialist with many years of federal service, neglected to file annual Standard Form 1190s claiming LQA for a 6-year period, without any explanation as to the reasons for not submitting them, the agency denial of LQA is not an abuse of discretion and is not arbitrary or capricious. The claims may not be paid.

Robert W. Matthews:

A decision has been requested as to whether Mr. Robert W. Matthews, an overseas civilian employee of the Department of the Army, Department of Defense (DOD), is entitled to payment of living quarters allowances (LQA) for a 6-year period from December 20, 1981, through December 12, 1987. /1/

FACTUAL BACKGROUND

The facts involved in this claim, briefly stated, are as follows. Mr. Matthews, a Personnel Management Specialist, with many years of federal service, was submitting annual claims and accompanying receipts for LQA. He stopped submitting such claims in 1981 and his LQA entitlement was terminated in March 1983. Mr. Matthews did not submit any annual claims for LQA from December 20, 1981, through December 12, 1987. Mr. Matthews recently submitted claims for LQA for each year of this 6-year period. His claims were denied by the Department of the Army.

Initially, we point out that portions of Mr. Matthews' claims for LQA are time barred under the provisions of the Barring Act of October 9, 1940, as amended, now codified at 31 U.S.C. Sec. 3702(a) (1988). However, in view of our holding in this case, consideration of the effect of the Barring Act is unnecessary.

The Law and Regulations

Reimbursement of the remaining portion of Mr. Matthews' claim for LQA is governed by the provisions of 5 U.S.C. Secs. 5922 and 5923 (1988) and the implementing regulations contained in section 013 of the Standardized Regulations (Government Civilians, Foreign Areas), and in chapter 592 of the DOD Civilian Personnel Manual (CPM). The statute and regulations provide that the head of an agency may grant quarters allowances to agency employees officially stationed in a foreign area and require an accounting therefor.

Allowances and differentials, including LQA, are required to be paid under regulations prescribed by the President. /2/ The President has designated and empowered the Secretary of State to prescribe regulations under sections 5922(b)(c) and 5924(4)B of title 5, United States Code, governing the payment of allowances and differentials to civilian employees stationed overseas. /3/

The Secretary of State, as authorized by the President, has promulgated regulations governing allowances and differentials in the Standardized Regulations (Government Civilians, Foreign Areas) and has empowered agency heads to issue, within the scope of the Standardized Regulations, such further implementing regulations as he or she may deem necessary for the guidance of the agency in the granting of and accounting for payments of LQA. /4/

Pursuant to the authority granted by the Secretary of State, the Secretary of Defense has issued regulations contained in the DOD Civilian Personnel Manual. These regulations state that they supplement the Standardized Regulations and that adherence to the Standardized Regulations, as supplemented by the CPM regulations, is mandatory.

The Standardized Regulations require all foreign posts who have employees eligible for LQA to submit a full quarters expense report annually. These regulations also state that each foreign post is required to report the annual expenses being incurred for living quarters for each employee receiving a living quarters allowance. /5/

The Civilian Personnel Manual regulations state that the Standard Form (SF) 1190 documents an employee's eligibility to receive foreign allowances and differentials and the amount to be paid. These regulations also provide that the SF 1190 serves as the source document for payroll purposes and is used for reporting the employee's living quarters costs to the Department of State. Under the regulations, each employee who is eligible for an allowance or differential is required to complete the SF 1190. /6/ The CPM regulations specifically state that each civilian employee who is eligible for foreign allowances is required to report each allowable LQA cost yearly. /7/

DISCUSSION

As stated earlier, the statute and regulations provide that the head of an agency may grant quarters allowances to agency employees officially stationed in a foreign area and require an accounting therefor. This Office has interpreted sections 5922(c) and 5923(2) of title 5, United States Code, as bestowing considerable discretion upon agency heads in the granting of LQA and requiring them to withhold payment altogether when, in their judgment, circumstances warrant such action. /8/ We have also stated that the grant of a LQA under the previously cited statutory provisions creates no permanent entitlement to such benefit for any employee. /9/

This Office has also consistently held that the General Accounting Office has no authority to overrule an agency's determination regarding an employee's entitlement to a LQA in the absence of evidence that such determination was arbitrary or capricious. /10/

The CPM regulations clearly require each civilian employee who is eligible for foreign allowances to report each allowable LQA cost yearly. The annual reporting of LQA expenses by each DOD agency to the Secretary of State is essential for the proper allowance and differential classification of posts abroad and to insure that all eligible employees receive the allowances or differentials to which they are entitled. /11/

In this case, Mr. Matthews failed to submit his SF 1190s each year for a 6-year period, without any explanation as to the reasons for not submitting them. As a Personnel Management Specialist with many years of federal service, Mr. Matthews was or should have been familiar with the reporting requirements for LQA benefits.

In light of the discretionary authority granted to the Department of the Army to grant and require an accounting for payments of LQA, and the specific regulatory requirement that a civilian employee, such as Mr. Matthews, stationed overseas and eligible to be paid a LQA, report each allowable LQA cost yearly, we do not view the denial of Mr. Matthews' claims for LQA by the Department of the Army, for the 6-year period in question, to be an abuse of discretion or to be arbitrary or capricious.

Accordingly, Mr. Matthews' claims for LQA for the period from December 20, 1981, through December 12, 1987, may not be paid.

/1/ The claim has been submitted by Garry D. Foster, Colonel, Finance Command, Civilian Pay Policy and Deployment Division, Department of the Army.

/2/ 5 U.S.C. Sec. 5922(c) (1988).

/3/ Executive Order No. 10903, Jan. 11, 1961, as amended.

/4/ Section 013, Standardized Regulations, Sept. 2, 1989.

/5/ Section 077.2, Standardized Regulations, May 24, 1987.

/6/ Paras. A-1 and A-2a, Appendix A, CPM 592, DOD 1400.25-M, Nov. 9, 1981.

/7/ Subchapter 1-3b(4), CPM 592, DOD 1400.25-M, Nov. 9, 1981.

/8/ See Wesley L. Goecker, 58 Comp.Gen. 738, 740 (1979).

/9/ See Joseph P. Carrigan, 60 Comp.Gen. 243, 247 (1981).

/10/ See Carrigan, supra; Carl M. Bauer, 59 Comp.Gen. 713, 716 (1980); Goecker, supra.

/11/ Sections 071 and 072.31, Standardized Regulations, May 24, 1987.