A-4888, OCTOBER 14, 1924, 4 COMP. GEN. 376

A-4888: Oct 14, 1924

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WHO WAS NOT RETAINED ON ACTIVE DUTY BY THE PRESIDENT. WAS AUTOMATICALLY RETIRED JULY 1. ON AND SUBSEQUENT TO THAT DATE IS ONLY ENTITLED TO HIS RETIRED PAY. 1924: THERE IS FOR CONSIDERATION OF THIS OFFICE THE MATTER OF THE PAY TO WHICH MASON MITCHELL. IS ENTITLED FOR THE PERIOD FROM JULY 6 TO AUGUST 2. - THE SECRETARY OF STATE IS AUTHORIZED TO ESTABLISH. WITH THE EXCEPTION OF CASES IN WHICH SPECIFIC ORDERS TO THE CONTRARY ARE ISSUED IN WRITING BY THE DEPARTMENT OF STATE. THE TRANSIT PERIOD WITHIN THE MEANING OF THE STATUTE WILL BE CONSTRUED TO BE THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN MAKING DIRECT TRANSIT BETWEEN THE OFFICER'S PLACE OF RESIDENCE AND HIS POST OF DUTY. ARE ENTITLED TO COMPENSATION AT THE RATE OF THEIR RESPECTIVE SALARIES.

A-4888, OCTOBER 14, 1924, 4 COMP. GEN. 376

FOREIGN SERVICE OFFICERS - TRANSIT-TIME PAY A FOREIGN SERVICE OFFICER WHO REACHED THE AGE OF 65 YEARS PRIOR TO JULY 1, 1924, THE EFFECTIVE DATE OF THE ACT OF MAY 24, 1924, 43 STAT. 144, WHICH PROVIDED FOR THE RETIREMENT OF FOREIGN SERVICE OFFICERS, AND WHO WAS NOT RETAINED ON ACTIVE DUTY BY THE PRESIDENT, WAS AUTOMATICALLY RETIRED JULY 1, 1924, AND ON AND SUBSEQUENT TO THAT DATE IS ONLY ENTITLED TO HIS RETIRED PAY, WITH NO RIGHT TO TRANSIT-TIME PAY UNDER THE PROVISIONS OF SECTION 1740, REVISED STATUTES, DURING THE TIME SPENT IN TRAVELING TO HIS HOME.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 14, 1924:

THERE IS FOR CONSIDERATION OF THIS OFFICE THE MATTER OF THE PAY TO WHICH MASON MITCHELL, CONSUL OF CLASS 5, IS ENTITLED FOR THE PERIOD FROM JULY 6 TO AUGUST 2, 1924, WHILE IN TRANSIT FROM MALTA TO WASHINGTON, D.C., THE SAID CONSUL HAVING REACHED THE AGE OF 65 PRIOR TO JULY 1, 1924, AND SECTION 17 (D) OF THE ACT OF MAY 24, 1924, 43 STAT. 144, IN "EFFECT ON JULY 1, 1924," PROVIDING:

WHEN ANY FOREIGN SERVICE OFFICER HAS REACHED THE AGE OF SIXTY-FIVE YEARS AND RENDERED AT LEAST FIFTEEN YEARS OF SERVICE, HE SHALL BE RETIRED: PROVIDED, THAT THE PRESIDENT MAY IN HIS DISCRETION RETAIN ANY SUCH OFFICER ON ACTIVE DUTY FOR SUCH PERIOD NOT EXCEEDING FIVE YEARS AS HE MAY DEEM FOR THE INTEREST OF THE UNITED STATES.

PARAGRAPH 477 OF THE "CONSULAR REGULATIONS" PROVIDES:

TIME IN TRANSIT.--- THE SECRETARY OF STATE IS AUTHORIZED TO ESTABLISH, DETERMINE, AND MAKE PUBLIC THE MAXIMUM AMOUNT OF TIME ACTUALLY NECESSARY TO MAKE THE TRANSIT BETWEEN EACH CONSULAR POST AND THE CITY OF WASHINGTON, AND VICE VERSA, AND FROM TIME TO TIME REVISE HIS DECISION IN THIS RESPECT; AND THE ALLOWANCE FOR TIME ACTUALLY AND NECESSARILY OCCUPIED BY EACH CONSULAR OFFICER WHO MAY BE ENTITLED TO SUCH ALLOWANCE SHALL IN NO CASE EXCEED THAT FOR THE TIME THUS ESTABLISHED AND DETERMINED, WITH THE ADDITION OF THE TIME USUALLY OCCUPIED BY THE SHORTEST AND MOST DIRECT MODE OF CONVEYANCE FROM WASHINGTON TO THE PLACE OF RESIDENCE IN THE UNITED STATES OF SUCH OFFICER.--- 18 STAT.L. 70, SEC. 4.

WITH THE EXCEPTION OF CASES IN WHICH SPECIFIC ORDERS TO THE CONTRARY ARE ISSUED IN WRITING BY THE DEPARTMENT OF STATE, THE TRANSIT PERIOD WITHIN THE MEANING OF THE STATUTE WILL BE CONSTRUED TO BE THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN MAKING DIRECT TRANSIT BETWEEN THE OFFICER'S PLACE OF RESIDENCE AND HIS POST OF DUTY, OR VICE VERSA.--- E.O. SEPT. 11, 1923.

PARAGRAPH 492 OF THE "CONSULAR REGULATIONS" PROVIDES THAT CONSULS GENERAL, CONSULS, ETC., ARE ENTITLED TO COMPENSATION AT THE RATE OF THEIR RESPECTIVE SALARIES, AS FOLLOWS:

(1) BEGINNING NOT PRIOR TO THE DATE OF THE OATH OF OFFICE, FOR TIME OCCUPIED IN RECEIVING INSTRUCTIONS IN THE UNITED STATES, OR, BY SPECIAL DIRECTION OF THE DEPARTMENT OF STATE, AT CONSULATES GENERAL OR CONSULATES OTHER THAN THOSE TO WHICH THEY SHALL HAVE BEEN APPOINTED, NOT EXCEEDING IN ALL THIRTY DAYS.--- R.S.SEC. 1740.

(2) FOR THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN TRANSIT, BY THE MOST DIRECT ROUTE, BETWEEN THE PLACES OF THEIR RESIDENCE AND THEIR POSTS, AND VICE VERSA. (PARAGRAPH 477.) THIS APPLIES TO TRANSIT FROM THE UNITED STATES, TO TRANSIT BETWEEN POSTS WHEN A TRANSFER TAKES PLACE, AND TO TRANSIT TO THE UNITED STATES AT THE TERMINATION OF SERVICE, UNLESS THE OFFICER DIES, OR IS RECALLED FOR MALFEASANCE, OR RESIGNS IN ANTICIPATION OF SUCH RECALL. THE TIME DURING WHICH A CONSUL MAY BE UNAVOIDABLY DETAINED AT HIS POST WHILE WAITING FOR A CONVEYANCE TO THE UNITED STATES, OR TO ANOTHER POST AFTER DELIVERING UP THE OFFICE, MAY BE INCLUDED IN HIS TRANSIT PERIOD PROVIDED HE TAKES THE FIRST AVAILABLE MEANS OF TRANSPORTATION. * * *

SECTION 1740, REVISED STATUTES, PROVIDES:

NO AMBASSADOR, ENVOY EXTRAORDINARY, MINISTER PLENIPOTENTIARY, MINISTER RESIDENT, COMMISSIONER, CHARGE D-AFFAIRES, SECRETARY OF LEGATION, ASSISTANT SECRETARY OF LEGATION, INTERPRETER TO ANY LEGATION OR CONSULATE, OR CONSUL-GENERAL, CONSUL, OR COMMERCIAL AGENT, MENTIONED IN SCHEDULES B AND C, SHALL BE ENTITLED TO COMPENSATION FOR HIS SERVICES, EXCEPT FROM THE TIME WHEN HE REACHES HIS POST AND ENTERS UPON HIS OFFICIAL DUTIES TO THE TIME WHEN HE CEASES TO HOLD SUCH OFFICE, AND FOR SUCH TIME AS IS ACTUALLY AND NECESSARILY OCCUPIED IN RECEIVING HIS INSTRUCTIONS, NOT TO EXCEED THIRTY DAYS, AND IN MAKING THE DIRECT TRANSIT BETWEEN THE PLACE OF HIS RESIDENCE, WHEN APPOINTED, AND HIS POST OF DUTY, AT THE COMMENCEMENT AND TERMINATION OF THE PERIOD OF HIS OFFICIAL SERVICE, FOR WHICH HE SHALL IN ALL CASES BE ALLOWED AND PAID, EXCEPT AS HEREINAFTER MENTIONED. AND NO PERSON SHALL BE DEEMED TO HOLD ANY SUCH OFFICE AFTER HIS SUCCESSOR IS APPOINTED AND ACTUALLY ENTERS UPON THE DUTIES OF HIS OFFICE AT HIS POST OF DUTY, NOR AFTER HIS OFFICIAL RESIDENCE AT SUCH POST HAS TERMINATED IF NOT SO RELIEVED. BUT NO SUCH ALLOWANCE OR PAYMENT SHALL BE MADE TO ANY CONSUL -GENERAL, CONSUL, OR COMMERCIAL AGENT, NOT EMBRACED IN SCHEDULES B AND C, OR TO ANY VICE-CONSUL, VICE-COMMERCIAL AGENT, DEPUTY CONSUL, OR CONSULAR AGENT, FOR THE TIME SO OCCUPIED IN RECEIVING INSTRUCTIONS, OR IN SUCH TRANSIT AS AFORESAID; NOR SHALL ANY SUCH OFFICER AS IS REFERRED TO IN THIS SECTION BE ALLOWED COMPENSATION FOR THE TIME SO OCCUPIED IN SUCH TRANSIT, AT THE TERMINATION OF THE PERIOD OF HIS OFFICIAL SERVICE, IF HE HAS RESIGNED OR BEEN RECALLED THEREFROM FOR ANY MALFEASANCE IN HIS OFFICE.

IT DOES NOT APPEAR THAT CONSUL MITCHELL WAS RETAINED BY PROPER AUTHORITY ON ACTIVE DUTY AFTER JUNE 30, 1924; THEREFORE, HE WAS AUTOMATICALLY RETIRED JULY 1, 1924, THE EFFECTIVE DATE OF THE RETIREMENT ACT, HE HAVING PREVIOUSLY REACHED THE AGE OF 65 YEARS. THE QUESTION IS, THEREFORE, WHETHER HE IS ENTITLED ON AND AFTER JULY 1, 1924, TO RETIRED PAY ONLY, UNDER THE ACT OF MAY 24, 1924, SUPRA, OR WHETHER HE IS ENTITLED TO TRANSIT TIME PAY UNDER SECTION 1740, REVISED STATUTES, FOR THE PERIOD SUBSEQUENT TO JULY 1, 1924, AFTER AUTOMATIC RETIREMENT, WHILE IN TRANSIT TO HIS HOME.

THE UNIFORM CONSTRUCTION OF RETIREMENT ACTS, NOTABLY FOR THE ARMY, THE NAVY, AND THE CIVILIAN BRANCH OF THE GOVERNMENT, HAS BEEN THAT UPON REACHING THE PRESCRIBED AGE RETIREMENT AUTOMATICALLY BECOMES EFFECTIVE AND ACTIVE DUTY PAY CEASES, UNLESS UNDER AUTHORITY OF CONTROLLING STATUTES, THE INDIVIDUAL IS RETAINED ON ACTIVE DUTY. THE SAME IS TRUE HERE. AS THE EXECUTIVE AUTHORITY DID NOT RETAIN CONSUL MITCHELL ON THE ACTIVE LIST THE GOING INTO EFFECT OF THE RETIREMENT ACT OPERATED TO DISCONTINUE HIS ACTIVE DUTY PAY, AND TO ENTITLE HIM ONLY TO PAY BASED ON HIS RETIRED STATUS. TRANSIT TIME PAY IS NOTHING MORE THAN ACTIVE DUTY PAY CONTINUED AFTER A CONSULAR OFFICER HAS VACATED HIS OFFICE DURING SUFFICIENT TIME FOR HIM TO REACH HIS HOME. SECTION 1740, REVISED STATUTES, WAS, OF COURSE, ENACTED BEFORE ANY PROVISION WAS MADE FOR RETIREMENT WITH PAY AND CAN NOT GIVE A RETIRED OFFICER ANY RIGHT TO HIS FULL ACTIVE DUTY PAY WHILE IN A RETIRED STATUS.

ACCORDINGLY, IT MUST BE HELD THAT CONSUL MITCHELL IS ENTITLED ON AND AFTER JULY 1, 1924, ONLY TO HIS PAY AS A RETIRED CONSULAR OFFICER UNDER THE ACT OF MAY 24, 1924, SUPRA, AND NOT TO TRANSIT TIME PAY FOR ANY PERIOD.