A-15248, AUGUST 9, 1926, 6 COMP. GEN. 103

A-15248: Aug 9, 1926

Additional Materials:

Contact:

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

 

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

ANY INEQUALITY WHICH WOULD OTHERWISE RESULT FROM THE APPLICATION OF SUCH AMENDMENT IS TAKEN CARE OF BY SECTION 18 (F) OF THE ORIGINAL ACT. 4 COMP. WHO AT THE TIME OF ORIGINAL APPOINTMENT TO THE GRADE OF AMBASSADOR OR MINISTER OR TO THE POSITION OF ASSISTANT SECRETARY OF STATE WAS DIPLOMATIC SECRETARY OR CONSULAR OFFICER OR WHO AT ANY TIME PRIOR TO SUCH APPOINTMENT HAD SERVED FOR A PERIOD OF TEN YEARS AS DIPLOMATIC SECRETARY OR CONSULAR OFFICER OR IN THE DEPARTMENT OF STATE OR ON SPECIAL DUTY UNDER THE DEPARTMENT OF STATE OR IN ANY OR ALL OF THESE CAPACITIES.'. WHICH IS THE AMENDMENT. THERE ARE SEVERAL AMBASSADORS. ASSISTANT SECRETARIES WHO COME WITHIN THE PROVISIONS OF THIS AMENDMENT AND THE DEPARTMENT IS ARRANGING.

A-15248, AUGUST 9, 1926, 6 COMP. GEN. 103

RETIREMENT - FOREIGN SERVICE THE AMENDMENT OF SECTION 18 (O) OF THE ACT OF MAY 24, 1924, 43 STAT. 144, BY THE ACT OF JULY 3, 1926, 44 STAT. 903, DOES NOT REQUIRE THE ADDITIONAL PERSONNEL OF THE FOREIGN SERVICE, TO WHICH THE AMENDMENT EXTENDED THE ACT, TO DEPOSIT 5 PERCENT OF THEIR SALARY FOR ANY TIME PRIOR TO JULY 3, 1926. ANY INEQUALITY WHICH WOULD OTHERWISE RESULT FROM THE APPLICATION OF SUCH AMENDMENT IS TAKEN CARE OF BY SECTION 18 (F) OF THE ORIGINAL ACT. 4 COMP. GEN. 315, 757, NO LONGER APPLICABLE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, AUGUST 9, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 30, 1926, REQUESTING DECISION AS FOLLOWS:

BY ACT OF JULY 3, 1926 (44 STAT. 903), CONGRESS AMENDED SECTION 18 (O) OF THE ACT OF MAY 24, 1924, FOR THE REORGANIZATION AND IMPROVEMENT OF THE FOREIGN SERVICE TO READ AS FOLLOWS:

"ANY DIPLOMATIC SECRETARY OR CONSULAR OFFICER WHO HAS BEEN OR ANY FOREIGN SERVICE OFFICER WHO MAY HEREAFTER BE PROMOTED FROM THE CLASSIFIED SERVICE TO THE GRADE OF AMBASSADOR OR MINISTER OR APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE SHALL BE ENTITLED TO ALL THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM PROVIDED BY SECTION 18 OF THIS ACT IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS; AND THERE SHALL LIKEWISE BE ENTITLED TO THE BENEFITS OF SAID SYSTEM IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS ANY AMBASSADOR OR MINISTER OR ANY ASSISTANT SECRETARY OF STATE NOW IN THE SERVICE, WHO AT THE TIME OF ORIGINAL APPOINTMENT TO THE GRADE OF AMBASSADOR OR MINISTER OR TO THE POSITION OF ASSISTANT SECRETARY OF STATE WAS DIPLOMATIC SECRETARY OR CONSULAR OFFICER OR WHO AT ANY TIME PRIOR TO SUCH APPOINTMENT HAD SERVED FOR A PERIOD OF TEN YEARS AS DIPLOMATIC SECRETARY OR CONSULAR OFFICER OR IN THE DEPARTMENT OF STATE OR ON SPECIAL DUTY UNDER THE DEPARTMENT OF STATE OR IN ANY OR ALL OF THESE CAPACITIES.'

THE LAST PORTION OF THIS PARAGRAPH, WHICH IS THE AMENDMENT, PROVIDES THAT PERSONS NAMED THEREIN SHALL BE ENTITLED TO THE BENEFITS OF THE RETIREMENT SYSTEM OF THE FOREIGN SERVICE "IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS.'

THERE ARE SEVERAL AMBASSADORS, MINISTERS, AND ASSISTANT SECRETARIES WHO COME WITHIN THE PROVISIONS OF THIS AMENDMENT AND THE DEPARTMENT IS ARRANGING, BEGINNING JULY 3, 1926, TO DEDUCT FROM THEIR COMPENSATION THE CONTRIBUTIONS TO THE RETIREMENT FUND PROVIDED FOR BY SECTION 18 (C) OF THE ACT OF MAY 24, 1924.

THE QUESTION HAS ARISEN, HOWEVER, AS TO WHETHER THESE OFFICERS, ALL OF WHOM WERE IN THE SERVICE ON JULY 1, 1924, WHEN THE ORIGINAL ACT BECAME EFFECTIVE, SHOULD BE REQUIRED TO CONTRIBUTE ALSO 5 PERCENT OF THEIR COMPENSATION FOR THE PERIOD JULY 1, 1924, TO JULY 3, 1926.

I WOULD BE GLAD TO HAVE AN EXPRESSION OF YOUR OPINION IN REGARD TO THIS POINT.

THE EFFECT OF THIS AMENDMENT IS TO EXTEND THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT ACT OF MAY 24, 1924, 43 STAT. 144, TO THE OFFICERS AND EMPLOYEES THEREIN NAMED WHO WERE PROMOTED TO SUCH POSITIONS PRIOR TO THE CLASSIFICATION OF THE FOREIGN SERVICE; THAT IS, THOSE WHO WOULD OTHERWISE HAVE BEEN ENTITLED TO ITS BENEFITS BUT WHO WERE NOT PROMOTED "FROM THE CLASSIFIED SERVICE" AS REQUIRED BY SECTION 18 (O) PRIOR TO THE AMENDMENT. 4 COMP. GEN. 315, 757.

THE AMENDED PORTION PROVIDES THAT THE OFFICERS AND EMPLOYEES DESCRIBED THEREIN SHALL BE ENTITLED TO THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT ACT "IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS.' ONE OF THE CONDITIONS APPLICABLE TO FOREIGN SERVICE OFFICERS WHO WERE IN THE SERVICE JULY 1, 1924, WAS THE CONTRIBUTION OF 5 PERCENT OF THEIR BASIC SALARY TO THE RETIREMENT FUND FROM AND AFTER THAT DATE AS REQUIRED BY SUBPARAGRAPH (C) OF SECTION 18 OF THE ACT OF MAY 24, 1924, SUPRA, AND AS AMENDED BY THE ACT OF JULY 3, 1926, SUPRA. THE RIGHT TO RETIREMENT IS NOT, HOWEVER, LIMITED TO THOSE WHO WERE IN THAT SERVICE JULY 1, 1924, AND IT COULD NOT SERIOUSLY BE CONTENDED THAT ANY PERSON HEREAFTER APPOINTED OR EMPLOYED AS A FOREIGN SERVICE OFFICER WOULD HAVE TO CONTRIBUTE 5 PERCENT OF HIS SALARY FROM JULY 1, 1924, AND THE AMENDED SECTION DOES NOT REQUIRE THAT THE FOREIGN SERVICE OFFICERS WHOSE RIGHTS AND PRIVILEGES UNDER THE ACT ARE TO BE USED FOR COMPARISON, MUST HAVE BEEN IN THE SERVICE ON JULY 1, 1924. HAD THE CONGRESS HAD ANY INTENTION OF THE AMENDMENT OPERATING TO REQUIRE THE 5 PERCENT DEDUCTION OR CONTRIBUTION RETROACTIVELY TO JULY 1, 1924, IT WOULD DOUBTLESS HAVE INCORPORATED THEREIN A PROVISION TO THAT EFFECT SIMILAR TO THAT INCORPORATED IN PARAGRAPH (P) OF SECTION 18 OF THE ACT WITH RESPECT TO CERTAIN EMPLOYEES COUNTING, FOR RETIREMENT PURPOSES, SERVICE IN THE DEPARTMENT OF STATE PRIOR TO THEIR APPOINTMENT IN THE FOREIGN SERVICE.

ANY APPARENT INEQUALITY THAT MIGHT OTHERWISE RESULT FROM THE FAILURE OF SUCH OFFICERS AND EMPLOYEES TO HAVE CONTRIBUTED THE 5 PERCENT OF THEIR BASIC COMPENSATION BETWEEN JULY 1, 1924, AND JULY 3, 1926, WOULD BE TAKEN CARE OF BY SECTION 18 (F), WHICH PROVIDES:

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.

NO NECESSITY APPEARS, THEREFORE, FOR THE CONTRIBUTION AT THIS TIME OF 5 PERCENT OF THEIR BASIC SALARY OR COMPENSATION FROM JULY 1, 1924, TO JULY 3, 1926, TO ENTITLE THE OFFICERS AND EMPLOYEES TO WHOM THE FOREIGN SERVICE RETIREMENT ACT IS EXTENDED BY THE AMENDMENT, TO ITS BENEFITS "IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS.'