A-25155, NOVEMBER 20, 1928, 8 COMP. GEN. 265

A-25155: Nov 20, 1928

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IF THAT DATE BE ON OR SUBSEQUENT TO THE DATE OF APPLICATION FOR RETIREMENT AND THE DISABILITY IS SHOWN TO HAVE EXISTED FROM AND AFTER THAT DATE. IF A FOREIGN SERVICE OFFICER SHOULD MAKE APPLICATION FOR RETIREMENT AND BEFORE ARRANGEMENTS FOR HIS RETIREMENT ARE COMPLETED HIS LEAVE WITH PAY EXPIRES. MAY THE ORDER RETIRING HIM WHEN ISSUED INDICATE THAT RETIREMENT IS EFFECTIVE AS OF THE DAY FOLLOWING THE EXPIRATION OF HIS LEAVE OF ABSENCE WITH PAY? IS TO PROVIDE FOR THE CONTINUANCE. THIS OFFICE HAS BEEN ADVISED THAT IT IS THE GENERAL PRACTICE OF THE COMMISSIONER OF PENSIONS TO MAKE RETIREMENT FOR DISABILITY UNDER THE CIVIL RETIREMENT ACT RETROACTIVELY EFFECTIVE FROM DATE OF TERMINATION OF THE ACTIVE-PAY STATUS OF THE EMPLOYEE IF THE DISABILITY IS SHOWN TO HAVE EXISTED FROM AND AFTER THAT DATE.

A-25155, NOVEMBER 20, 1928, 8 COMP. GEN. 265

RETIREMENT - EFFECTIVE DATE - FOREIGN SERVICE OFFICER THE RETIREMENT OF A FORIEGN SERVICE OFFICER FOR DISABILITY, UNDER THE PROVISIONS OF SECTION 18 (J) OF THE ACT OF MAY 24, 1924, 43 STAT. 143, MAY BE MADE RETROACTIVELY EFFECTIVE FROM THE TERMINATION OF THE ACTIVE PAY STATUS OF THE OFFICER, IF THAT DATE BE ON OR SUBSEQUENT TO THE DATE OF APPLICATION FOR RETIREMENT AND THE DISABILITY IS SHOWN TO HAVE EXISTED FROM AND AFTER THAT DATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, NOVEMBER 20, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 15, 1928, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

THE DEPARTMENT WOULD BE GLAD TO RECEIVE AN EXPRESSION OF OPINION AS TO WHETHER IN ISSUING AN ORDER RETIRING A FOREIGN SERVICE OFFICER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 18 (J) OF THE ACT OF MAY 24, 1924, 43 STAT. 143, WHICH READS AS FOLLOWS:

"THAT ANY FOREIGN SERVICE OFFICER WHO BEFORE REACHING THE AGE OF RETIREMENT BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON HIS PART, SHALL, UPON HIS OWN APPLICATION OR UPON ORDER OF THE PRESIDENT, BE RETIRED ON AN ANNUITY UNDER PARAGRAPH (E) OF THIS SECTION: PROVIDED, HOWEVER, THAT IN EACH CASE SUCH DISABILITY SHALL BE DETERMINED BY THE REPORT OF A DULY QUALIFIED PHYSICIAN OR SURGEON DESIGNATED BY THE SECRETARY OF STATE TO CONDUCT THE EXAMINATION. * * *.' THE EFFECTIVE DATE OF RETIREMENT MAY ANTEDATE THE RETIREMENT ORDER. OTHER WORDS, IF A FOREIGN SERVICE OFFICER SHOULD MAKE APPLICATION FOR RETIREMENT AND BEFORE ARRANGEMENTS FOR HIS RETIREMENT ARE COMPLETED HIS LEAVE WITH PAY EXPIRES, MAY THE ORDER RETIRING HIM WHEN ISSUED INDICATE THAT RETIREMENT IS EFFECTIVE AS OF THE DAY FOLLOWING THE EXPIRATION OF HIS LEAVE OF ABSENCE WITH PAY?

NEITHER THE LAW NOR THE REGULATIONS ISSUED PURSUANT THERETO SPECIFICALLY PROVIDE WHEN RETIREMENT OF FOREIGN SERVICE OFFICERS FOR DISABILITY SHALL TAKE EFFECT WITH RELATION TO THE TERMINATION OF ACTIVE PAY STATUS. BUT THE GENERAL PURPOSE OF THE FOREIGN SERVICE OFFICERS' RETIREMENT LAW, IN COMMON WITH OTHER RETIREMENT STATUTES, IS TO PROVIDE FOR THE CONTINUANCE, WITHOUT INTERRUPTION, OF AN INCOME AFTER SEPARATION FROM ACTIVE SERVICE AND TERMINATION OF ACTIVE-PAY STATUS. THIS OFFICE HAS BEEN ADVISED THAT IT IS THE GENERAL PRACTICE OF THE COMMISSIONER OF PENSIONS TO MAKE RETIREMENT FOR DISABILITY UNDER THE CIVIL RETIREMENT ACT RETROACTIVELY EFFECTIVE FROM DATE OF TERMINATION OF THE ACTIVE-PAY STATUS OF THE EMPLOYEE IF THE DISABILITY IS SHOWN TO HAVE EXISTED FROM AND AFTER THAT DATE.

RETIREMENT OF FOREIGN SERVICE OFFICERS FOR DISABILITY MAY BE MADE EITHER ON THE BASIS OF THE OFFICER'S OWN APPLICATION OR BY ORDER OF THE PRESIDENT. WHERE THE RETIREMENT IS ON APPLICATION OF THE OFFICER, IT CAN NOT, OF COURSE, BE MADE RETROACTIVELY EFFECTIVE AS OF A DATE PRIOR TO APPLICATION BY THE OFFICER.

ANSWERING THE QUESTION SPECIFICALLY, I HAVE TO ADVISE THAT THE RETIREMENT OF A FOREIGN SERVICE OFFICER FOR DISABILITY UNDER THE PROVISIONS OF SECTION 18 (J) OF THE ACT OF MAY 24, 1924, 43 STAT. 143, MAY BE MADE RETROACTIVELY EFFECTIVE FROM THE TERMINATION OF THE ACTIVE PAY STATUS OF THE OFFICER, IF THAT DATE BE ON OR SUBSEQUENT TO DATE OF APPLICATION FOR RETIREMENT AND THE DISABILITY IS SHOWN TO HAVE EXISTED FROM AND AFTER THAT DATE.