A-47912, MARCH 20, 1933, 12 COMP. GEN. 551

A-47912: Mar 20, 1933

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IS APPLICABLE TO PERIODS OF SERVICE PRIOR TO THE EFFECTIVE DATE OF THE FOREIGN SERVICE ACT OF JULY 1. IS APPLICABLE TO PERIODS OF SERVICE AFTER JULY 1. WHEN OTHER FOREIGN SERVICE OFFICERS WERE REQUIRED TO REGULARLY CONTRIBUTE 5 PERCENT OF THEIR SALARIES TO THE RETIREMENT FUND. WILL RETIRE FROM THE FOREIGN SERVICE ON JUNE 30. HE WAS INDUCTED INTO THE SERVICE AND TOOK HIS ORIGINAL OATH OF OFFICE AS CONSUL ON DECEMBER 3. WAS REINSTATED AND TOOK OATH AS CONSUL AT HAVRE. IN THESE CIRCUMSTANCES INQUIRY IS MADE WHETHER CREDIT MAY BE ALLOWED IN COMPUTING LENGTH OF SERVICE FOR PURPOSES OF RETIREMENT UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 23. FOLLOWING AN INTERVENING PERIOD DURING WHICH THE OFFICER WAS SEPARATED FROM THE SERVICE.

A-47912, MARCH 20, 1933, 12 COMP. GEN. 551

RETIREMENT - FOREIGN SERVICE SECTION 26 (F) OF THE FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, REQUIRING A PERCENTAGE REDUCTION IN THE ANNUITY OF FOREIGN SERVICE OFFICERS FOR YEARS THEY DID NOT CONTRIBUTE TO THE RETIREMENT FUND, IS APPLICABLE TO PERIODS OF SERVICE PRIOR TO THE EFFECTIVE DATE OF THE FOREIGN SERVICE ACT OF JULY 1, 1924. SECTION 26 (O), REQUIRING CONTRIBUTION FROM A RETIRING OFFICER EQUIVALENT TO 5 PERCENT OF THE SALARY WITH INTEREST FOR YEARS OF SERVICE IN THE DEPARTMENT OF STATE OR AS A CLERK IN A MISSION OR CONSULATE, IS APPLICABLE TO PERIODS OF SERVICE AFTER JULY 1, 1924, WHEN OTHER FOREIGN SERVICE OFFICERS WERE REQUIRED TO REGULARLY CONTRIBUTE 5 PERCENT OF THEIR SALARIES TO THE RETIREMENT FUND.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MARCH 20, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 13, 1933, AS FOLLOWS:

JOHN BALL OSBORNE, ESQUIRE, AT PRESENT AMERICAN CONSUL GENERAL AT BUDAPEST, HUNGARY, WILL RETIRE FROM THE FOREIGN SERVICE ON JUNE 30, 1933. HE WAS INDUCTED INTO THE SERVICE AND TOOK HIS ORIGINAL OATH OF OFFICE AS CONSUL ON DECEMBER 3, 1889, AND RESIGNED EFFECTIVE DECEMBER 23, 1893. MAY 18, 1905, HE BECAME CHIEF OF THE BUREAU OF TRADE RELATIONS IN THE DEPARTMENT, AND SUBSEQUENTLY ON AUGUST 22, 1912, WAS REINSTATED AND TOOK OATH AS CONSUL AT HAVRE, FRANCE, AND HAS SERVED CONTINUOUSLY SINCE AS A CAREER OFFICER. IN THESE CIRCUMSTANCES INQUIRY IS MADE WHETHER CREDIT MAY BE ALLOWED IN COMPUTING LENGTH OF SERVICE FOR PURPOSES OF RETIREMENT UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1931, FOR SERVICES RENDERED IN THE DEPARTMENT OF STATE AFTER DATE OF ORIGINAL OATH OF OFFICE IN A RECOGNIZED CAPACITY, BUT FOLLOWING AN INTERVENING PERIOD DURING WHICH THE OFFICER WAS SEPARATED FROM THE SERVICE, AND THEN SUBSEQUENTLY REINSTATED AS A CAREER OFFICER, BY MERELY WITHHOLDING FROM THE ANNUITY FOUND TO BE PAYABLE SUCH PROPORTION OF 5 PERCENTUM AS THE NUMBER OF YEARS IN WHICH HE DID NOT CONTRIBUTE BEARS TO THE TOTAL LENGTH OF SERVICE AS PROVIDED BY SECTION 26 (F), OF THE ACT UNDER REFERENCE OR WHETHER IT WILL BE NECESSARY FOR THE OFFICER TO MAKE A SPECIAL CONTRIBUTION AS PROVIDED IN SECTION 26 (O).

SECTION 26 (F) READS IN PART AS FOLLOWS:

"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: * * *.'

THE PROVISO TO SECTION 26 (O) READS AS FOLLOWS:

"* * * PROVIDED, THAT SERVICE IN THE DEPARTMENT OF STATE OR AS A 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.'

AN EARLY RESPONSE WILL BE MUCH APPRECIATED.

THE PRESENT FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, IS AN AMENDMENT OF THE ORIGINAL ACT OF MAY 24, 1924, 43 STAT. 144, WHICH BECAME EFFECTIVE JULY 1, 1924, AND CONTAINED PROVISIONS IDENTICAL WITH THOSE QUOTED IN YOUR SUBMISSION. THESE TWO PROVISIONS WERE FOR THE PURPOSE OF EQUALIZING THE REQUIREMENTS OF THE ACT BETWEEN DIFFERENT FOREIGN SERVICE OFFICERS AND EMPLOYEES, AND THE QUOTED PROVISION FROM SECTION 26 (F) IS THUS APPLICABLE TO ALL CASES IN WHICH THE FAILURE TO CONTRIBUTE COVERED PERIODS OF SERVICE PRIOR TO THE EFFECTIVE DATE OF THE ACT WHEN CONTRIBUTIONS OR DEDUCTIONS WERE NOT REQUIRED FROM THE COMPENSATION OF THE EMPLOYEES. 6 COMP. GEN. 103. AS THE SERVICE IN THE DEPARTMENT OF STATE, FOR WHICH CREDIT IS CLAIMED BY MR. OSBORNE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THE STATUTE, JULY 1, 1924, IT COMES STRICTLY WITHIN THE PURVIEW OF THIS SECTION OF THE STATUTE, AND THE FAILURE TO CONTRIBUTE MAY THEREFORE BE ADJUSTED BY THE WITHHOLDING OF THE REQUIRED PERCENTAGE FROM HIS ANNUITY IN ACCORDANCE WITH PARAGRAPH 26 (F).

THE REQUIREMENT FOR A DEPOSIT OF 5 PERCENT OF THE SALARY TOGETHER WITH INTEREST, COVERING THE PERIOD OF SERVICE IN THE DEPARTMENT OF STATE AS A CLERK IN A MISSION OR CONSULATE UNDER THE PROVISO TO SECTION 26 (O) WAS FOR THE PURPOSE OF EQUALIZING CLAIMS FOR THE BENEFIT OF SUCH SERVICE WITH THOSE FOREIGN SERVICE OFFICERS WHO HAD SUFFERED THE REGULAR 5 PERCENT DEDUCTION FROM THEIR SALARY DURING THE SAME PERIOD OF TIME, BUT AS THE SERVICE FOR WHICH THE BENEFIT IS CLAIMED IN THE PRESENT CASE DID NOT OCCUR DURING THE PERIOD WHEN THE 5 PERCENT REDUCTION IN COMPENSATION WAS REQUIRED, SECTION 26 (O) IS NOT APPLICABLE THERETO. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.