A-50089, AUGUST 4, 1933, 13 COMP. GEN. 40

A-50089: Aug 4, 1933

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RETIREMENT - FOREIGN SERVICE - UNHEALTHFUL POSTS A FOREIGN SERVICE OFFICER WHO HAS BEEN ASSIGNED TO VARIOUS POSTS DESIGNATED AS UNHEALTHFUL IS ENTITLED UNDER SECTION 33 OF THE ACT OF FEBRUARY 23. HE IS NOT ENTITLED TO COUNT EACH FRACTIONAL MONTH SERVED AT EACH UNHEALTHFUL POST AS A FULL MONTH WHEN THERE WAS NO SEPARATION OF THE PERIODS OF SERVICE AT UNHEALTHFUL POSTS BEYOND THE TIME NECESSARY TO TRAVEL FROM ONE TO THE OTHER. WHO WERE RETIRED JUNE 30. PROVIDES: * * * THE PRESIDENT IS HEREBY AUTHORIZED TO ESTABLISH BY EXECUTIVE ORDER. WHENEVER IT IS DETERMINED THAT THE EFFICIENCY RATING OF AN OFFICER IS UNSATISFACTORY. THE RATING OF SUCH OFFICER CONTINUES TO BE FOUND UNSATISFACTORY AND SUCH FINDING IS CONFIRMED BY THE SECRETARY OF STATE AFTER A HEARING ACCORDED THE OFFICER.

A-50089, AUGUST 4, 1933, 13 COMP. GEN. 40

RETIREMENT - FOREIGN SERVICE - UNHEALTHFUL POSTS A FOREIGN SERVICE OFFICER WHO HAS BEEN ASSIGNED TO VARIOUS POSTS DESIGNATED AS UNHEALTHFUL IS ENTITLED UNDER SECTION 33 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1215, TO COUNT FOR RETIREMENT PURPOSES, 50 PERCENT ADDITIONAL FOR THE TIME SO SERVED, A FRACTIONAL MONTH TO COUNT AS A FULL MONTH, BUT HE IS NOT ENTITLED TO COUNT EACH FRACTIONAL MONTH SERVED AT EACH UNHEALTHFUL POST AS A FULL MONTH WHEN THERE WAS NO SEPARATION OF THE PERIODS OF SERVICE AT UNHEALTHFUL POSTS BEYOND THE TIME NECESSARY TO TRAVEL FROM ONE TO THE OTHER, THE ENTIRE PERIOD OF SERVICE AT SUCH POSTS BEING SUBSTANTIALLY CONTINUOUS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, AUGUST 4, 1933:

YOUR LETTER OF JULY 15, 1933, ENCLOSING COPIES OF THE SERVICE RECORDS OF RICHARD R. WILLEY AND EDWARD B. THOMAS, WHO WERE RETIRED JUNE 30, 1933, REQUESTED THAT "THE BONUS FOUND PAYABLE IN THESE CASES BE CERTIFIED AS CORRECT AT AN EARLY DATE IN ORDER THAT PAYMENT MAY BE MADE" OF THE BONUS OF 1 YEAR'S SALARY UNDER SECTION 33 OF THE ACT OF FEBRUARY 22, 1931. YOUR SUBMISSION DOES NOT INDICATE WHEREIN THERE MAY BE DOUBT AS TO THE CORRECTNESS OF THE PROPOSED PAYMENT.

SECTION 33 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1215, SO FAR AS HERE MATERIAL, PROVIDES:

* * * THE PRESIDENT IS HEREBY AUTHORIZED TO ESTABLISH BY EXECUTIVE ORDER, REGULATIONS PROVIDING FOR THE SEPARATION OF FOREIGN SERVICE OFFICERS FROM THE FOREIGN SERVICE, IN ACCORDANCE WITH THE CONDITIONS HEREINAFTER PRESCRIBED. FOREIGN SERVICE OFFICERS SO SEPARATED FROM THE FOREIGN SERVICE SHALL BE RETIRED FROM THE SERVICE, AFTER A HEARING BY THE SECRETARY OF STATE, UPON AN ANNUITY EQUAL TO 25 PERCENTUM OF HIS SALARY, AT THE TIME OF RETIREMENT, IN THE CASE OF OFFICERS OVER FORTY FIVE YEARS OF AGE OR IN THE CASE OF OFFICERS UNDER FORTY-FIVE YEARS OF AGE WITH A BONUS OF ONE YEAR'S SALARY AT THE TIME OF HIS RETIREMENT, EITHER ANNUITY OR ONE YEAR'S SALARY TO BE PAYABLE OUT OF THE FOREIGN SERVICE OFFICER'S RETIREMENT AND DISABILITY FUND AND EXCEPT AS HEREIN PROVIDED, SUBJECT TO THE SAME PROVISIONS AND LIMITATIONS AS OTHER ANNUITIES PAYABLE OUT OF SUCH FUNDS; BUT NO RETURN OF CONTRIBUTIONS SHALL BE MADE UNDER PARAGRAPHS (I) OR (1) OF SECTION 26 OF THIS ACT IN THE CASE OF ANY FOREIGN SERVICE OFFICER RETIRED UNDER THE PROVISIONS OF THIS SECTION. WHENEVER IT IS DETERMINED THAT THE EFFICIENCY RATING OF AN OFFICER IS UNSATISFACTORY, THEREBY MEANING BELOW THE STANDARD REQUIRED FOR THE SERVICE, AND SUCH DETERMINATION HAS BEEN CONFIRMED BY THE SECRETARY OF STATE, THE OFFICER SHALL BE NOTIFIED THEREOF, AND IF, AFTER A REASONABLE PERIOD TO BE DETERMINED BY THE CIRCUMSTANCES IN EACH PARTICULAR CASE, THE RATING OF SUCH OFFICER CONTINUES TO BE FOUND UNSATISFACTORY AND SUCH FINDING IS CONFIRMED BY THE SECRETARY OF STATE AFTER A HEARING ACCORDED THE OFFICER, SUCH OFFICER SHALL BE SEPARATED FROM THE SERVICE WITH THE ANNUITY, OR BONUS PROVIDED IN THIS SECTION, BUT NO OFFICER SO SEPARATED FROM THE SERVICE SHALL RECEIVE THE SAID ANNUITY OR BONUS UNLESS AT THE TIME OF SEPARATION HE SHALL HAVE SERVED AT LEAST FIFTEEN YEARS. HE SHALL, HOWEVER, IF HE HAS NOT SERVED AT LEAST FIFTEEN YEARS HAVE RETURNED TO HIM THE FULL SUM OF HIS CONTRIBUTION TO THE ANNUITY FUND, WITH INTEREST THEREON AT 4 PERCENTUM COMPOUNDED ANNUALLY. THE BENEFITS OF THIS SECTION, EXCEPT AT THE OPTION OF THE SECRETARY OF STATE THE RETURN OF AN OFFICER'S CONTRIBUTION TO THE ANNUITY FUND, SHALL NOT BE GIVEN TO FOREIGN SERVICE OFFICERS SEPARATED FROM THE FOREIGN SERVICE ON ACCOUNT OF MALFEASANCE IN OFFICE.

THE SERVICE RECORD OF MR. THOMAS SHOWS CONTINUOUS SERVICE FROM MAY 20, 1918, TO JUNE 30, 1933, A PERIOD OF 15 YEARS, 1 MONTH, AND 11 DAYS AND IT IS STATED THEREON THAT HE IS UNDER 45 YEARS OF AGE. IN THE ABSENCE OF OBJECTION NOT APPARENT UPON THE RECORD THE PAYMENT TO THIS RETIRED OFFICER OF THE ONE YEAR'S SALARY APPEARS TO BE AUTHORIZED BY SECTION 33 OF THE STATUTE ABOVE QUOTED.

THE SERVICE RECORD OF MR. WILLEY SHOWS THAT HE ENTERED THE SERVICE NOVEMBER 12, 1921, AND SERVED CONTINUOUSLY UNTIL JUNE 30, 1933, A PERIOD OF 11 YEARS, 7 MONTHS, AND 19 DAYS TO WHICH HAVE BEEN ADDED 3 YEARS, 4 MONTH, AND 15 DAYS, APPARENTLY AS ONE HALF ADDITIONAL TIME CREDIT FOR SERVICE RENDERED AT CALCUTTA, RANGOON, MADRAS, AND ADEN, WHICH ARE LISTED IN THE CONSULAR REGULATIONS AS UNHEALTHY POSTS, IN ACCORDANCE WITH SECTION 26 (K) OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1212, WHICH PROVIDES AS FOLLOWS:

(K) THE PRESIDENT IS AUTHORIZED FROM TIME TO TIME TO ESTABLISH BY EXECUTIVE ORDER, A LIST OF PLACES WHICH BY REASON OF CLIMATIC OR OTHER EXTREME CONDITIONS ARE TO BE CLASSED AS UNHEALTHFUL POSTS, AND EACH YEAR OF DUTY SUBSEQUENT TO JANUARY 1, 1900, AT SUCH POSTS, INCLUSIVE OF REGULAR LEAVES OF ABSENCE, OF OFFICERS ALREADY RETIRED OR HEREAFTER RETIRED, SHALL BE COUNTED AS ONE YEAR AND A HALF, AND SO ON IN LIKE PROPORTION IN RECKONING THE LENGTH OF SERVICE FOR THE PURPOSE OF RETIREMENT, FRACTIONAL MONTHS BEING CONSIDERED AS FULL MONTHS IN COMPUTING SUCH SERVICE: PROVIDED, HOWEVER, THAT THE PRESIDENT MAY AT ANY TIME CANCEL THE DESIGNATION OF ANY PLACES AS UNHEALTHFUL WITHOUT AFFECTING ANY CREDIT WHICH HAS ACCRUED FOR SERVICE AT SUCH POSTS PRIOR TO THE DATE OF THE CANCELLATION.

I FIND, HOWEVER, THAT THE SERVICE AT THE DESIGNATED UNHEALTHY POSTS WAS PRACTICALLY CONTINUOUS FROM JUNE 15, 1925, TO FEBRUARY 9, 1932, BEING BROKEN ONLY BY PERIODS OF FROM 3 TO 13 DAYS BETWEEN THE RESPECTIVE POSTS WHICH PROBABLY DO NOT EXCEED THE TIME REQUIRED TO TRAVEL FROM ONE TO THE OTHER. THAT IS TO SAY, THE PERIOD OF SERVICE AT UNHEALTHY POSTS AGGREGATES, AT MOST, 6 YEARS, 7 MONTHS, AND 25 DAYS, ONE HALF OF WHICH, COUNTING THE 25 DAYS AS A WHOLE MONTH, WOULD BE 3 YEARS AND 4 MONTHS. THIS ADDED TO THE ELAPSED TIME OF ACTUAL SERVICE WOULD MAKE BUT 14 YEARS, 11 MONTHS, AND 19 DAYS. THE LARGER CREDIT STATED ON THE SERVICE RECORD WAS APPARENTLY ARRIVED AT BY COUNTING EACH TOUR OF DUTY AT AN UNHEALTHY POST SEPARATELY AND CREDITING FULL MONTHS FOR EACH FRACTIONAL MONTH SPENT AT A SINGLE POST NOTWITHSTANDING THAT THE SERVICE AT ALL OF SUCH POSTS WAS CONTINUOUS. THIS METHOD OF COMPUTATION IS NOT AUTHORIZED BY THE STATUTE. ACCORDINGLY, IT MUST BE HELD THAT MR. WILLEY IS NOT ENTITLED TO ONE YEAR'S SALARY BY REASON OF HIS RETIREMENT BUT WILL BE LIMITED TO THE REFUND OF THE FULL AMOUNT OF HIS CONTRIBUTION TO THE ANNUITY FUND WITH INTEREST THEREON AT 4 PERCENT PER ANNUM, AS PROVIDED FOR UNDER THE STATUTE, SUPRA. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.