A-15715, OCTOBER 9, 1926, 6 COMP. GEN. 249

A-15715: Oct 9, 1926

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FOREIGN SERVICE RETIREMENT - LEAVE OF ABSENCE IN EXCESS OF SIX MONTHS IN DETERMINING WHETHER ANY PERIOD OF ABSENCE ON THE PART OF A FOREIGN SERVICE OFFICER IS IN EXCESS OF SIX MONTHS. THE ABSENCE IS TO BE COUNTED AS EXTENDING FROM THE DATE OF THE OFFICER'S ACTUAL DEPARTURE FROM HIS POST OF DUTY TO THE DATE OF RETURN THERETO. 1926: I HAVE YOUR LETTER OF SEPTEMBER 14. THE RETIREMENT IS BASED ON SERVICE. ABSENCE ON OR INCIDENT TO LEAVE IS NOT SERVICE. WHEN ON AUTHORIZED LEAVE OF ABSENCE DOES NOT ALTER THE FACT THAT THE ENTIRE TIME FROM DATE OF DEPARTURE TO DATE OF RETURN IS A PERIOD OF LEAVE OF ABSENCE RATHER THAN A PERIOD OF SERVICE. THE EXCESS IS TO BE EXCLUDED. IT IS IMMATERIAL AND NOT FOR CONSIDERATION FOR WHAT PURPOSE THERE WAS LEAVE OF ABSENCE.

A-15715, OCTOBER 9, 1926, 6 COMP. GEN. 249

FOREIGN SERVICE RETIREMENT - LEAVE OF ABSENCE IN EXCESS OF SIX MONTHS IN DETERMINING WHETHER ANY PERIOD OF ABSENCE ON THE PART OF A FOREIGN SERVICE OFFICER IS IN EXCESS OF SIX MONTHS, THUS REQUIRING SUCH EXCESS TO BE EXCLUDED IN COMPUTING THE LENGTH OF SERVICE UNDER SECTION 18 (P) OF THE FOREIGN SERVICE RETIREMENT ACT OF MAY 24, 1924, 43 STAT. 145, THE ABSENCE IS TO BE COUNTED AS EXTENDING FROM THE DATE OF THE OFFICER'S ACTUAL DEPARTURE FROM HIS POST OF DUTY TO THE DATE OF RETURN THERETO, THE TIME FOR WHICH ENTITLED TO TRANSIT TIME PAY NOT BEING CONSIDERED A PERIOD OF SERVICE WITHIN THE PURVIEW OF THAT ACT.

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

I HAVE YOUR LETTER OF SEPTEMBER 14, 1926, REQUESTING AN EXPRESSION OF OPINION WHETHER IN COMPUTING SUCH "PERIOD OF LEAVE OF ABSENCE AS MAY EXCEED SIX MONTHS" UNDER THE RETIREMENT PROVISIONS OF THE ACT OF MAY 24, 1924, 43 STAT. 145, THE TIME OCCUPIED IN TRANSIT ON SUCH LEAVE SHOULD BE INCLUDED OR EXCLUDED.

SECTION 18 OF THE ACT OF MAY 24, 1924, AUTHORIZES THE PRESIDENT TO PRESCRIBE RULES AND REGULATIONS FOR THE ESTABLISHMENT OF A FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM TO BE ADMINISTERED UNDER THE DIRECTION OF THE SECRETARY OF STATE. PARAGRAPH (P) OF SECTION 18 PROVIDES THAT IN COMPUTING THE PERIOD OF SERVICE OF A FOREIGN SERVICE OFFICER ALL PERIODS OF SEPARATION FROM THE SERVICE AND SO MUCH OF ANY PERIOD OF LEAVE OF ABSENCE AS MAY EXCEED SIX MONTHS SHALL BE EXCLUDED.

SECTION 1742, REVISED STATUTES, PROVIDES AS FOLLOWS:

NO DIPLOMATIC OR CONSULAR OFFICER SHALL RECEIVE SALARY FOR THE TIME DURING WHICH HE MAY BE ABSENT FROM HIS POST, BY LEAVE OR OTHERWISE, BEYOND THE TERM OF SIXTY DAYS IN ANY ONE YEAR; BUT THE TIME EQUAL TO THAT USUALLY OCCUPIED IN GOING TO AND FROM THE UNITED STATES IN CASE OF THE RETURN, ON LEAVE, OF SUCH DIPLOMATIC OR CONSULAR OFFICER TO THE UNITED STATES MAY BE ALLOWED IN ADDITION TO SUCH SIXTY DAYS.

THE RETIREMENT IS BASED ON SERVICE, AND ABSENCE ON OR INCIDENT TO LEAVE IS NOT SERVICE. THE LAW SPECIFICALLY PROVIDES THAT "SO MUCH OF ANY PERIOD OF LEAVE OF ABSENCE AS MAY EXCEED SIX MONTHS SHALL BE EXCLUDED," THUS AUTHORIZING THE COUNTING OF PERIODS OF ABSENCE OF SIX MONTHS OR LESS AS SERVICE. WHEN AN OFFICER LEAVES HIS POST TO GO ON LEAVE, THE "PERIOD OF LEAVE OF ABSENCE" BEGINS ON DATE OF DEPARTURE AND ENDS ON DATE OF RETURN. THE FACT THAT AN OFFICER MAY BE ALLOWED PAY FOR THE TRANSIT TIME, PLUS 60 DAYS, WHEN ON AUTHORIZED LEAVE OF ABSENCE DOES NOT ALTER THE FACT THAT THE ENTIRE TIME FROM DATE OF DEPARTURE TO DATE OF RETURN IS A PERIOD OF LEAVE OF ABSENCE RATHER THAN A PERIOD OF SERVICE.

THE LAW REQUIRES THAT EXCESS OF LEAVE OVER SIX MONTHS SHALL BE EXCLUDED IN COUNTING SERVICE FOR RETIREMENT PURPOSES. IF ANY PERIOD OF ABSENCE EXCEEDS SIX MONTHS, THE EXCESS IS TO BE EXCLUDED. IT IS IMMATERIAL AND NOT FOR CONSIDERATION FOR WHAT PURPOSE THERE WAS LEAVE OF ABSENCE--- IN A PAY STATUS OR NONPAY STATUS--- THE ENTIRE PERIOD OF ABSENCE IS TO BE COUNTED. ABSENCE ON OFFICIAL BUSINESS IS, OF COURSE, NOT INVOLVED.

YOU ARE ADVISED, THEREFORE, THAT THE TIME OCCUPIED BY FOREIGN SERVICE OFFICERS IN TRANSIT TO AND FROM THE UNITED STATES IN THE CASE OF RETURN THERETO ON DULY AUTHORIZED LEAVE SHOULD BE INCLUDED IN DETERMINING WHETHER THE PERIOD OF LEAVE OF ABSENCE IS IN EXCESS OF SIX MONTHS WITHIN THE MEANING OF THE PROVISION IN SECTION 18 (P) OF THE ACT OF MAY 24, 1924, SUPRA. ..END :