A-40207, JANUARY 27, 1932, 11 COMP. GEN. 288

A-40207: Jan 27, 1932

Additional Materials:

Contact:

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

 

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

HAS NO APPLICATION TO A FOREIGN SERVICE OFFICER WHO RESIGNS FOR PERSONAL REASONS AND AFTER A LAPSE OF 11 MONTHS IS APPOINTED TO A POSITION UNDER THE DEPARTMENT OF STATE. WAS APPOINTED TO A POSITION IN THE DEPARTMENT UNDER DATE OF SEPTEMBER 10. WHICH ACCEPTANCE WAS DELAYED ONLY BECAUSE OF ILLNESS IN THE OFFICER'S IMMEDIATE FAMILY. THESE PROVISIONS WERE IN FORCE WHEN MR. DUNN WAS OFFERED AN APPOINTMENT IN THE DEPARTMENT OF STATE IN JULY. SUBSECTION (O) AND (P) ABOVE QUOTED BECAME SUBSECTIONS (N) AND (O) OF SECTION 26 AND THEY WERE AMENDED TO READ AS FOLLOWS: "/N) 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.

A-40207, JANUARY 27, 1932, 11 COMP. GEN. 288

RETIREMENT - FOREIGN SERVICE THE PROVISION IN THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1213, SAVING TO FOREIGN SERVICE OFFICERS APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE THE BENEFITS OF RETIREMENT UNDER THE FOREIGN SERVICE RETIREMENT ACT, CONTEMPLATES CONTINUITY OF EMPLOYMENT AS A FOREIGN SERVICE OFFICER AND IN A POSITION UNDER THE DEPARTMENT OF STATE, AND HAS NO APPLICATION TO A FOREIGN SERVICE OFFICER WHO RESIGNS FOR PERSONAL REASONS AND AFTER A LAPSE OF 11 MONTHS IS APPOINTED TO A POSITION UNDER THE DEPARTMENT OF STATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JANUARY 27, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 2, 1932, AS FOLLOWS:

MR. JAMES C. DUNN, NOW CHIEF OF THE DIVISION OF INTERNATIONAL CONFERENCES IN THE DEPARTMENT, WAS APPOINTED TO A POSITION IN THE DEPARTMENT UNDER DATE OF SEPTEMBER 10, 1931, ELEVEN MONTHS INTERVENING BETWEEN THE DATE OF HIS RESIGNATION AS FOREIGN SERVICE OFFICER ON AUGUST 7, 1930, AND HIS ACCEPTANCE OF THE OFFER OF APPOINTMENT IN THE DEPARTMENT MADE IN JULY, 1930, WHICH ACCEPTANCE WAS DELAYED ONLY BECAUSE OF ILLNESS IN THE OFFICER'S IMMEDIATE FAMILY. MR. DUNN NOW DESIRES TO CONTINUE TO CONTRIBUTE TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND AND TO RETAIN THE BENEFITS AND PRIVILEGES CONFERRED BY THE ACTS OF MAY 24, 1924, JULY 3, 1926, AND FEBRUARY 23, 1931, RESPECTIVELY; THE CONTRIBUTIONS MADE BY HIM TO THE RETIREMENT FUND FOR HIS PRIOR CAREER SERVICE NOT HAVING AS YET BEEN WITHDRAWN.

SECTION 18 OF THE ACT OF CONGRESS APPROVED MAY 24, 1924, AS AMENDED BY THE ACT OF CONGRESS APPROVED JULY 3, 1926, READS IN PART AS FOLLOWS:

"/O) 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 WASA 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.

"/P) FOR THE PURPOSES OF THIS ACT THE PERIOD OF SERVICE SHALL BE COMPUTED FROM THE DATE OF ORIGINAL OATH OF OFFICE AS SECRETARY IN THE DIPLOMATIC SERVICE, CONSUL GENERAL, CONSUL, VICE CONSUL, DEPUTY CONSUL, CONSULAR ASSISTANT, CONSULAR AGENT, COMMERCIAL AGENT, INTERPRETER, OR STUDENT INTERPRETER, AND SHALL INCLUDE PERIODS OF SERVICE AT DIFFERENT TIMES IN EITHER THE DIPLOMATIC OR CONSULAR SERVICE, OR WHERE ON ASSIGNMENT TO THE DEPARTMENT OF STATE, OR ON SPECIAL DUTY, BUT 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: PROVIDED, THAT SERVICE IN THE DEPARTMENT OF STATE PRIOR TO APPOINTMENT AS A FOREIGN SERVICE OFFICER MAY BE INCLUDED IN THE PERIOD OF SERVICE, IN WHICH CASE THE OFFICER SHALL PAY INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND A SPECIAL CONTRIBUTION EQUAL TO 5 PERCENTUM OF HIS ANNUAL SALARY FOR EACH YEAR OF SUCH EMPLOYMENT, WITH INTEREST THEREON TO DATE OF PAYMENT COMPOUNDED ANNUALLY AT 4 PERCENTUM.'

THESE PROVISIONS WERE IN FORCE WHEN MR. DUNN WAS OFFERED AN APPOINTMENT IN THE DEPARTMENT OF STATE IN JULY, 1930, AND WHEN HE RESIGNED ON AUGUST 7, 1930, ON ACCOUNT OF THE SERIOUS ILLNESS OF HIS WIFE. BY THE ACT OF CONGRESS APPROVED FEBRUARY 23, 1931, SUBSECTION (O) AND (P) ABOVE QUOTED BECAME SUBSECTIONS (N) AND (O) OF SECTION 26 AND THEY WERE AMENDED TO READ AS FOLLOWS:

"/N) 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 THIS SECTION IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS: PROVIDED, THAT ANY OFFICER NOW INCLUDED UNDER THE ACT OF MAY 24, 1924, AND THE AMENDMENT THERETO OF JULY 3, 1926, SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION.

"/O) FOR THE PURPOSE OF THIS ACT THE PERIOD OF SERVICE SHALL BE COMPUTED FROM THE DATE OF ORIGINAL OATH OF OFFICE AS DIPLOMATIC SECRETARY, CONSUL GENERAL, CONSUL, VICE CONSUL, DEPUTY CONSUL, CONSULAR ASSISTANT, CONSULAR AGENT, COMMERCIAL AGENT, INTERPRETER, OR STUDENT INTERPRETER, AND SHALL INCLUDE PERIODS OF SERVICE AT DIFFERENT TIMES AS EITHER A DIPLOMATIC OR CONSULAR OFFICER, OR WHILE ON ASSIGNMENT TO THE DEPARTMENT OF STATE, OR ON SPECIAL DUTY OR SERVICE IN ANOTHER DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, BUT ALL PERIODS OF SEPARATION FROM THE SERVICE AND SO MUCH OF ANY PERIOD OF LEAVE OF ABSENCE WITHOUT PAY AS MAY EXCEED SIX MONTHS SHALL BE EXCLUDED: PROVIDED, THAT SERVICE IN THE DEPARTMENT OF STATE OR AS CLERK IN A MISSION OR CONSULATE PRIOR TO APPOINTMENT AS A FOREIGN SERVICE OFFICER MAY BE INCLUDED IN THE PERIOD OF SERVICE, IN WHICH CASE THE OFFICER SHALL PAY INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND A SPECIAL CONTRIBUTION EQUAL TO 5 PERCENTUM OF HIS ANNUAL SALARY FOR EACH YEAR OF SUCH EMPLOYMENT, WITH INTEREST THEREON TO DATE OF PAYMENT COMPOUNDED ANNUALLY AT 4 PERCENTUM, PROVIDED THAT SUCH SPECIAL CONTRIBUTION SHALL BE SUBJECT TO THE LIMITATIONS ESTABLISHED BY SUBDIVISION (F) OF THIS SECTION.'

AS THE ABOVE-QUOTED PROVISIONS CONTEMPLATED "PERIODS OF SEPARATION FROM THE SERVICE" AND REAPPOINTMENTS WITH RESTORATION TO PARTICIPATION IN THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND, IT IS BELIEVED THAT SINCE MR. DUNN WAS OFFERED A POSITION IN THE DEPARTMENT OF STATE PRIOR TO HIS RESIGNATION FROM THE FOREIGN SERVICE, AS THE DELAY IN HIS ACCEPTANCE OF THE DEPARTMENTAL POSITION WAS CAUSED BY THE SERIOUS ILLNESS OF HIS WIFE AND SINCE HE HAS NOT WITHDRAWN HIS CONTRIBUTIONS TO THE RETIREMENT FUND, HE CAN PROPERLY BE REGARDED AS ENTITLED TO RETAIN HIS STATUS UNDER THE RETIREMENT PROVISIONS OF THE ACTS ABOVE QUOTED.

HOWEVER, BEFORE ACTING UPON HIS REQUEST, IT WILL BE APPRECIATED IF YOU WILL STATE WHETHER YOU CONSIDER THAT HE MAY BE RESTORED TO PARTICIPATION IN THE PROVISIONS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM.

IT IS UNDERSTOOD THAT THERE IS AT PRESENT NO QUESTION OF RETIREMENT, BUT WHETHER 5 PERCENT OF THE BASIC SALARY OF JAMES C. DUNN, CHIEF OF THE DIVISION OF INTERNATIONAL CONFERENCES OF THE DEPARTMENT OF STATE SHOULD BE WITHHELD AND DEPOSITED TO HIS CREDIT IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND, PURSUANT TO SECTION 26 (C) OF THE ACT OF MAY 24, 1924, AS AMENDED BY THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211.

THE PROVISION IN THE SAME STATUTE, AS AMENDED BY ACTS OF JULY 3, 1926, AND FEBRUARY 23, 1931, QUOTED IN YOUR LETTER, SAVING TO FOREIGN SERVICE OFFICERS APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE THE BENEFITS OF RETIREMENT UNDER THE FOREIGN SERVICE RETIREMENT ACT, GENERALLY CONTEMPLATES CONTINUITY OF EMPLOYMENT AS A FOREIGN SERVICE OFFICER AND IN THE POSITION UNDER THE DEPARTMENT OF STATE. THIS STATUTORY PROVISION IS ANALAGOUS TO THE PROVISION IN THE CIVIL RETIREMENT ACT SAVING RETIREMENT BENEFITS UNDER THAT STATUTE TO UNCLASSIFIED EMPLOYEES WHO HAVE BEEN TRANSFERRED FROM CLASSIFIED POSITIONS, WHICH HAS BEEN HELD TO APPLY GENERALLY ONLY IN CASES WHERE THERE HAS BEEN NO BREAK IN THE CONTINUITY OF EMPLOYMENT IN THE CLASSIFIED AND UNCLASSIFIED POSITIONS. 34 OP.ATTY.GEN. 192; ID. 334; ID. 515; 5 COMP. GEN. 254; 6 ID. 69; 118; ID. 572; 7 ID. 150; ID. 246; 9 ID. 69; AND 10 ID. 491.

INITIAL SERVICE IN A POSITION UNDER THE DEPARTMENT OF STATE DOES NOT ENTITLE TO RETIREMENT BENEFITS UNDER THE FOREIGN SERVICE RETIREMENT ACT, AND THE PURPOSE AND INTENT OF THE LAW IS TO SAVE TO FOREIGN SERVICE OFFICERS THE GREATER BENEFITS OF RETIREMENT UNDER THE FOREIGN SERVICE RETIREMENT ACT UPON APPOINTMENT TO A POSITION UNDER THE DEPARTMENT OF STATE, BECAUSE OF THEIR TRAINING AND EXPERIENCE, WITHOUT BREAK IN THE SERVICE. IT IS NOT CONTEMPLATED GENERALLY THAT ANY PERSON WHO HAS ONCE SERVED AS A FOREIGN SERVICE OFFICER AND RESIGNS OR OTHERWISE BECOMES SEPARATED FROM THE SERVICE MAY REGAIN RETIREMENT BENEFITS UNDER THE FOREIGN SERVICE RETIREMENT ACT AT ANY TIME THEREAFTER IN A POSITION UNDER THE DEPARTMENT OF STATE TO WHICH SUBSEQUENTLY APPOINTED. THE "PERIOD OF SEPARATION FROM THE SERVICE," MENTIONED IN YOUR LAST PARAGRAPH AS CONTEMPLATED BY THE STATUTE, REFERS MORE PARTICULARLY TO THE LENGTH OF TIME BETWEEN PERIODS OF SERVICE AS A FOREIGN SERVICE OFFICER AND NOT TO A PERIOD BETWEEN SERVICE OF A FOREIGN SERVICE OFFICER AND DEPARTMENTAL SERVICE.

IN A DECISION OF AUGUST 16, 1926, 6 COMP. GEN. 118, AN EXCEPTION TO THE CONTINUITY OF SERVICE RULE UNDER THE CIVIL RETIREMENT ACT ABOVE REFERRED TO WAS RECOGNIZED AND A GENERAL RULE STATED AS FOLLOWS:

WHETHER A BREAK IN THE CONTINUITY OF EMPLOYMENT IN AN UNCLASSIFIED POSITION TO WHICH AN OFFICER OR EMPLOYEE OCCUPYING A CLASSIFIED POSITION HAD BEEN TRANSFERRED WOULD IN ANY EVENT CAUSE A LOSS OF RETIREMENT STATUS IS FOR CONSIDERATION UPON THE PARTICULAR FACTS OF EACH CASE, SUCH AS THE CAUSE OF THE BREAK, WHETHER DUE TO SOME REASON PERSONAL TO THE OFFICER OR EMPLOYEE OR TO SOME REASON OVER WHICH THE OFFICER OR EMPLOYEE HAD NO CONTROL, THE DURATION THEREOF, AND WHETHER THE UNCLASSIFIED OFFICE OR POSITION WAS OCCUPIED BY ANOTHER DURING THE INTERVAL.

THE PARTICULAR FACTS IN THE INSTANT CASE DO NOT JUSTIFY THE APPLICATION OF THIS RULE OF EXCEPTION. THE SEPARATION FROM THE SERVICE COVERING A PERIOD OF 11 MONTHS WAS DUE SOLELY TO REASONS PERSONAL TO THE OFFICER, AND THERE IS NO EVIDENCE THAT HE HAD ANY INTENTION OF RETURNING TO THE SERVICE. MR. DUNN WAS NOT A "FOREIGN SERVICE OFFICER * * * APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE" WITHIN THE MEANING OF SECTION 18 (N) OF THE FOREIGN SERVICE RETIREMENT ACT, BUT WAS APPOINTED FROM PRIVATE LIFE. ACCORDINGLY, HE IS NOT ENTITLED TO THE RETIREMENT BENEFITS OF SAID STATUTE IN HIS POSITION UNDER THE DEPARTMENT OF STATE.

YOU ARE ADVISED, THEREFORE, THAT 5 PERCENT OF THE BASIC SALARY OF JAMES C. DUNN, CHIEF OF THE DIVISION OF INTERNATIONAL CONFERENCES OF THE DEPARTMENT OF STATE, SHOULD NOT BE WITHHELD AND DEPOSITED TO HIS CREDIT IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND.