A-13173, MAY 12, 1926, 5 COMP. GEN. 905

A-13173: May 12, 1926

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ARE APPLICABLE TO A FOREIGN SERVICE OFFICER RETIRED WHILE ON A PROLONGED LEAVE OF ABSENCE WITHOUT PAY AND THE ACCRUED ANNUITY AT THE DATE OF HIS DEATH. IN WHICH IT IS STATED THAT SHE HAS BEEN APPOINTED ADMINISTRATRIX OF THE ESTATE OF HER LATE HUSBAND AND SHE DESIRES TO KNOW WHAT STEPS ARE NECESSARY TO BE TAKEN BY HER IN ORDER TO OBTAIN ANY MONEY WHICH MAY BE DUE HIM BY THE DEPARTMENT OF STATE. WAS PLACED UPON THE RETIRED LIST ON AUGUST 23. WAS TO RECEIVE AN ANNUITY OF $1. THERE WAS PAID HIM BY THE DISBURSING CLERK OF THIS DEPARTMENT AS SUCH ANNUITY THE AMOUNT OF $191.24. DUE TO THE FACT THAT HE WAS ON LEAVE OF ABSENCE WITHOUT PAY FROM JULY 1. WHEN HE WAS PLACED ON THE RETIRED LIST. THE DEPARTMENT WOULD BE GLAD TO HAVE YOUR OPINION AS TO WHETHER OR NOT THE ESTATE OF THE LATE BENJAMIN F.

A-13173, MAY 12, 1926, 5 COMP. GEN. 905

RETIREMENT - FOREIGN SERVICE OFFICERS THE RETIREMENT PROVISIONS OF THE ACT OF MAY 24, 1924, 43 STAT. 140, REORGANIZING THE FOREIGN SERVICE OF THE UNITED STATES, ARE APPLICABLE TO A FOREIGN SERVICE OFFICER RETIRED WHILE ON A PROLONGED LEAVE OF ABSENCE WITHOUT PAY AND THE ACCRUED ANNUITY AT THE DATE OF HIS DEATH, LESS THE CONTRIBUTIONS REQUIRED BY THE STATUTE, MAY BE PAID TO HIS ESTATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 12, 1926:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 12, 1925, READING AS FOLLOWS:

THE DEPARTMENT ENCLOSES HEREWITH COPY OF A LETTER FROM MRS. B. F. CHASE, WIDOW OF THE LATE BENJAMIN F. CHASE, AMERICAN FOREIGN SERVICE OFFICER, RETIRED, IN WHICH IT IS STATED THAT SHE HAS BEEN APPOINTED ADMINISTRATRIX OF THE ESTATE OF HER LATE HUSBAND AND SHE DESIRES TO KNOW WHAT STEPS ARE NECESSARY TO BE TAKEN BY HER IN ORDER TO OBTAIN ANY MONEY WHICH MAY BE DUE HIM BY THE DEPARTMENT OF STATE.

THE FOREIGN SERVICE OFFICER, BENJAMIN F. CHASE, WAS PLACED UPON THE RETIRED LIST ON AUGUST 23, 1925, AND WAS TO RECEIVE AN ANNUITY OF $1,128.50 PER YEAR, PAYABLE IN MONTHLY INSTALLMENTS. THERE WAS PAID HIM BY THE DISBURSING CLERK OF THIS DEPARTMENT AS SUCH ANNUITY THE AMOUNT OF $191.24, BEING THE AMOUNT DUE FROM AUGUST 23, 1925, TO AND INCLUDING OCTOBER 31, 1925, AND THERE STILL REMAINS DUE TO THE OFFICER THE AMOUNT OF HIS PENSION, OR ANNUITY, FROM NOVEMBER 1 TO NOVEMBER 23, THE DATE OF HIS DEATH, AMOUNTING TO $72.10.

THIS OFFICER MADE NO CONTRIBUTIONS TO THE FUND, AS REQUIRED BY LAW, DUE TO THE FACT THAT HE WAS ON LEAVE OF ABSENCE WITHOUT PAY FROM JULY 1, 1924, THE DATE THIS LAW WENT INTO EFFECT, TO AUGUST 23, 1925, WHEN HE WAS PLACED ON THE RETIRED LIST.

THERE APPEARS TO BE NO PROVISION IN THE ACT OF MAY 24, 1924, FOR THE REORGANIZATION AND IMPROVEMENT OF THE FOREIGN SERVICE OF THE UNITED STATES AND FOR OTHER PURPOSES, AS TO THE PAYMENT OF ANY AMOUNT WHICH MAY BE DUE TO AN OFFICER WHO HAS NOT CONTRIBUTED TO THE FUND AT THE TIME OF HIS DEATH, AND THE DEPARTMENT WOULD BE GLAD TO HAVE YOUR OPINION AS TO WHETHER OR NOT THE ESTATE OF THE LATE BENJAMIN F. CHASE HAS ANY CLAIM AGAINST THE GOVERNMENT ON ACCOUNT OF THE ANNUITY NOT PAID AT THE TIME OF HIS DEATH.

SECTION 18 OF THE ACT OF MAY 24, 1924, 43 STAT. 140, REORGANIZING THE FOREIGN SERVICE OF THE UNITED STATES, AUTHORIZES THE PRESIDENT TO PRESCRIBE RULES AND REGULATIONS FOR ESTABLISHING A FOREIGN SERVICE AND DISABILITY SYSTEM AND FOR PAYING ANNUITIES TO RETIRED OR DISABLED FOREIGN SERVICE OFFICERS UNDER THE CONDITIONS THEREIN PRESCRIBED.

PARAGRAPH (F) OF THIS SECTION PROVIDES THAT:

THOSE OFFICERS WHO RETIRE BEFORE HAVING CONTRIBUTED FOR EACH YEAR OF SERVICE SHALL HAVE WITHHELD FROM THEIR ANNUITIES TO THE CREDIT OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND SUCH PROPORTION OF 5 PERCENTUM AS THE NUMBER OF YEARS IN WHICH THEY DID NOT CONTRIBUTE BEARS TO THE TOTAL LENGTH OF SERVICE.

THESE PROVISIONS PRESCRIBE THE MANNER OF ADJUSTMENT OF CONTRIBUTIONS WHERE THERE HAS BEEN RETIREMENT BEFORE MAKING CONTRIBUTIONS, AND THE LACK OF CONTRIBUTIONS BY ANNUITANT IN THE INSTANT CASE IS NOT IN ITSELF MATERIAL TO THE DETERMINATION OF THE QUESTION SUBMITTED.

THE REASON FOR NOT MAKING CONTRIBUTION IS THE FACT THE OFFICER WAS ON LEAVE OF ABSENCE WITHOUT PAY FROM MAY 31, 1923, TO AUGUST 23, 1925, WHEN HE WAS RETIRED, WHICH EMBRACES THE ENTIRE PERIOD FROM JULY 1, 1924, WHEN RETIREMENT CONTRIBUTION WOULD HAVE BEEN MADE IF IN A PAY STATUS.

THIS RAISES A QUESTION WHETHER AN OFFICER SO IN A NONPAY STATUS FOR A LONG PERIOD PRIOR AND SUBSEQUENT TO THE EFFECTIVE DATE OF THE RETIREMENT ENACTMENT IS WITHIN THE PROVISIONS OF THE ENACTMENT FOR RETIREMENT.

THE OFFICER WAS RETIRED FOR DISABILITY UNDER THE PROVISIONS OF PARAGRAPH (J) OF SECTION 18 OF THE RETIREMENT ACT. THE OFFICE OF WHICH MR. CHASE WAS THE INCUMBENT HAD NO FIXED TERM ATTACHED. HE, THEREFORE, HELD IT AT THE WILL OF THE APPOINTING POWER--- THE PRESIDENT. THE GRANTING OF A LEAVE OF ABSENCE EVEN FOR A PERIOD OF MORE THAN TWO YEARS, AS IN THIS CASE, DOES NOT OPERATE TO VACATE SUCH AN OFFICE.

THE GRANTING OF LEAVES OF ABSENCE TO CONSULAR OFFICERS, NOW FOREIGN SERVICE OFFICERS, WAS AND IS DISCRETIONARY WITH THE PRESIDENT, AND HE IS EMPOWERED UNDER THE LAWS AND REGULATIONS TO GRANT SUCH LEAVES AS TO HIM MAY SEEM PROPER, SUBJECT ONLY TO THE RESTRICTIONS FOUND IN SECTION 1742, REVISED STATUTES, AS TO RECEIPT OF COMPENSATION.

THE ABSENCE OF MR. CHASE FROM HIS POST OF DUTY, BEING UNDER DUE AND PROPER AUTHORITY, DID NOT DISCONNECT HIM FROM THE SERVICE. THEREFORE, HE WAS IN THE SERVICE WHEN THE ACT OF MAY 24, 1924, BECAME EFFECTIVE, AND ACCORDINGLY WAS ENTITLED TO THE BENEFITS OF SAID ACT.

NONCONTRIBUTION TO THE RETIREMENT FUND BY AN OFFICER OTHERWISE ELIGIBLE TO RETIREMENT DOES NOT DEPRIVE HIM OF THE BENEFITS OF THE ACT. AS A MATTER OF FACT, IT SEEMS THAT THE CONGRESS ANTICIPATED SUCH A SITUATION AND MADE PROVISION THEREFOR IN PARAGRAPH (J), SECTION 18 OF THE ACT.

ACCORDINGLY, YOU ARE ADVISED THAT AS THE RETIREMENT OF MR. CHASE WAS IN PURSUANCE OF THE PROVISIONS OF THE RETIREMENT ACT, PAYMENT OF THE ANNUITY, WHICH HAD ACCRUED BUT WHICH WAS NOT PAID AT DATE OF HIS DEATH, LESS THE DEDUCTIONS REQUIRED BY THE STATUTE, MAY BE MADE TO HIS ESTATE. 3 COMP. GEN. 744.

FROM THE SERVICE RECORD INFORMALLY SUBMITTED IN THIS CASE, IT WOULD APPEAR THAT THE AMOUNT OF ANNUITY CERTIFIED AS PAYABLE IS ERRONEOUS. ACCORDINGLY, IT IS SUGGESTED THAT THE CLAIM OF THE ADMINISTRATRIX BE TRANSMITTED TO THIS OFFICE FOR DIRECT SETTLEMENT.

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