A-56289, JULY 24, 1934, 14 COMP. GEN. 63

A-56289: Jul 24, 1934

Additional Materials:

Contact:

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

 

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

WAS APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE WHERE HE HAS SERVED CONTINUOUSLY UNTIL HIS REAPPOINTMENT AS A FOREIGN SERVICE OFFICER BY THE PRESIDENT. INQUIRY IS MADE IN THESE CIRCUMSTANCES. IT WILL BE NECESSARY FOR THE OFFICER TO PAY INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND MORE THAN THE AMOUNT REFUNDED TO HIM UPON HIS RESIGNATION UNDER THE PROVISIONS OF THE ACT OF MAY 24. COPIES OF THE TWO ACTS MENTIONED ARE ENCLOSED FOR YOUR READY REFERENCE. WILL REQUIRE NO SPECIAL CONTRIBUTION. OTHER THAN THE WITHHOLDING FROM THE ANNUITY FOUND TO BE PAYABLE UPON RETIREMENT OF SUCH PROPORTION OF FIVE PERCENTUM THEREOF AS THE NUMBER OF YEARS DURING WHICH NO CONTRIBUTION WAS MADE BEARS TO THE TOTAL SERVICE PERIOD.

A-56289, JULY 24, 1934, 14 COMP. GEN. 63

RETIREMENT - FOREIGN SERVICE OFFICERS A FOREIGN SERVICE OFFICER REGAINS RETIREMENT BENEFITS UNDER THE FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, UPON REAPPOINTMENT IN THE FOREIGN SERVICE AFTER A PERIOD OF SERVICE IN THE DEPARTMENT OF STATE, IMMEDIATELY PRECEDED BY A PERIOD OUT OF THE SERVICE, ENTITLING HIM TO COUNT PRIOR PERIODS OF SERVICE IN CAPACITIES RECOGNIZED BY THE ACT PRIOR TO HIS RESIGNATION, WHETHER CONTINUOUS OR NOT, AND INCLUDING THE SERVICE IN THE DEPARTMENT OF STATE. 11 COMP. GEN. 288 DISTINGUISHED. THERE APPEARS NOTHING IN THE FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, TO REQUIRE, IN ORDER TO OBTAIN THE BENEFITS OF PRIOR SERVICE, THAT A FOREIGN SERVICE OFFICER REFUND TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND ANY MORE THAN THE AMOUNT REFUNDED TO HIM, PLUS INTEREST THEREON TO DATE OF REFUND.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 24, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 23, 1934, IN PERTINENT PART AS FOLLOWS:

AFTER HAVING COMPLETED ALMOST SEVENTEEN YEARS OF SERVICE IN VARIOUS CAPACITIES IN THE FOREIGN SERVICE, A FOREIGN SERVICE OFFICER RESIGNED, EFFECTIVE FEBRUARY 9, 1927, AND THREE MONTHS LATER, UNDER DATE OF MAY 9, 1927, WAS APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE WHERE HE HAS SERVED CONTINUOUSLY UNTIL HIS REAPPOINTMENT AS A FOREIGN SERVICE OFFICER BY THE PRESIDENT, BY AND WITH THE ADVICE OF THE SENATE, AND UPON TAKING OATH OF OFFICE HE HAS AGAIN BECOME ELIGIBLE TO PARTICIPATE IN THE PROVISIONS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM.

INQUIRY IS MADE IN THESE CIRCUMSTANCES, REFERRING TO YOUR DECISION, A- 40207, OF JANUARY 27, 1932, IN THE CASE OF MR. JAMES C. DUNN, WHETHER THE SERVICES OF THE OFFICER IN CAPACITIES RECOGNIZED BY THE ACT OF FEBRUARY 23, 1931, PRIOR TO HIS RESIGNATION AND SUBSEQUENT REEMPLOYMENT, MAY BE CONSIDERED IN COMPUTING HIS SERVICE CREDIT, AND, IF SO, WHETHER IN PURCHASING CREDIT FOR THE PERIOD FROM JULY 1, 1924, TO FEBRUARY 9, 1927, IT WILL BE NECESSARY FOR THE OFFICER TO PAY INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND MORE THAN THE AMOUNT REFUNDED TO HIM UPON HIS RESIGNATION UNDER THE PROVISIONS OF THE ACT OF MAY 24, 1924, NAMELY, SEVENTY-FIVE PERCENT OF THE CONTRIBUTIONS MADE BY HIM TO THAT TIME, PLUS INTEREST TO DATE OF PAYMENT AS CONTEMPLATED BY SECTION 26 (O) OF THE ACT OF FEBRUARY 23, 1931. COPIES OF THE TWO ACTS MENTIONED ARE ENCLOSED FOR YOUR READY REFERENCE.

OF COURSE, IF ALLOWABLE, THE OFFICER'S SERVICE PRIOR TO JULY 1, 1924, WILL REQUIRE NO SPECIAL CONTRIBUTION, OTHER THAN THE WITHHOLDING FROM THE ANNUITY FOUND TO BE PAYABLE UPON RETIREMENT OF SUCH PROPORTION OF FIVE PERCENTUM THEREOF AS THE NUMBER OF YEARS DURING WHICH NO CONTRIBUTION WAS MADE BEARS TO THE TOTAL SERVICE PERIOD, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 26 (F) OF THE ACT OF FEBRUARY 23, 1931.

IT IS BELIEVED THIS CASE IS CONTEMPLATED BY THE STATUTE UNDER SECTION 26 (O), PROVIDING FOR THE COMPUTATION OF SERVICE FROM THE DATE OF ORIGINAL OATH IN A RECOGNIZED CAPACITY, BUT EXCLUDING LEAVES OF ABSENCE WITHOUT PAY WHICH EXCEED SIX MONTHS, AND "ALL PERIODS OF SEPARATION FROM THE SERVICE" AS INTIMATED BY YOU IN YOUR DECISION OF JANUARY 27, 1932, REFERRED TO ABOVE, PARTICULARLY AS THE PERIOD TO BE EXCLUDED OCCURRED BETWEEN TWO DUTY PERIODS AS A FOREIGN SERVICE OFFICER, BUT BEFORE ADVISING THE OFFICER CONCERNED OF THE AMOUNT IT WILL BE NECESSARY FOR HIM TO PAY INTO THE RETIREMENT FUND AN EXPRESSION OF YOUR OPINION WITH REFERENCE TO THIS MATTER WILL BE MUCH APPRECIATED.

SUBSECTIONS (C), (F), (L), AND (O) OF SECTION 26 OF THE ACT OF MAY 24, 1924, AS AMENDED BY THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, 1212, AND 1213, PROVIDE AS FOLLOWS:

(C) FIVE PERCENTUM OF THE BASIC SALARY OF ALL FOREIGN SERVICE OFFICERS ELIGIBLE TO RETIREMENT SHALL BE CONTRIBUTED TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND, AND THE SECRETARY OF THE TREASURY IS DIRECTED ON THE DATE ON WHICH THIS ACT TAKES EFFECT TO CAUSE SUCH DEDUCTIONS TO BE MADE AND THE SUMS TRANSFERRED ON THE BOOKS OF THE TREASURY DEPARTMENT TO THE CREDIT OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND FOR THE PAYMENT OF ANNUITIES, REFUNDS, AND ALLOWANCES: PROVIDED, THAT ALL BASIC SALARIES IN EXCESS OF $10,000 PER ANNUM SHALL BE TREATED AS $10,000.

(F) 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: PROVIDED, THAT NO DEDUCTIONS SHALL BE MADE FROM THE ANNUITIES OF OFFICERS WHO HAVE CONTRIBUTED THIRTY YEARS, AND NO OFFICER SHALL BE REQUIRED TO CONTRIBUTE MORE THAN THIRTY YEARS IN ANY CIRCUMSTANCES.

(L) WHENEVER A FOREIGN SERVICE OFFICER BECOMES SEPARATED FROM THE SERVICE EXCEPT FOR DISABILITY BEFORE REACHING THE AGE OF RETIREMENT, OR UNDER SECTION 33 OF THIS ACT, THE TOTAL AMOUNT OF CONTRIBUTION FROM HIS SALARY WITH INTEREST THEREON AT 4 PERCENTUM PER ANNUM COMPOUNDED ANNUALLY UP TO THE DATE OF SUCH SEPARATION, SHALL BE RETURNED TO HIM.

(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.

IN DECISION OF JANUARY 27, 1932, 11 COMP. GEN. 288, 290, IT WAS STATED AS FOLLOWS:

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.

IT IS UNDERSTOOD THAT THIS PRINCIPLE WAS APPLIED IN THE INSTANT CASE TO TERMINATE RETIREMENT BENEFITS UNDER THE FOREIGN SERVICE RETIREMENT ACT UPON APPOINTMENT OF THIS FOREIGN SERVICE OFFICER TO A POSITION IN THE DEPARTMENT OF STATE MAY 9, 1927, AFTER HAVING BEEN OUT OF THE SERVICE FOR 3 MONTHS.

HOWEVER, UNDER THE PLAIN TERMS OF THE STATUTE THIS FOREIGN SERVICE OFFICER REGAINED RETIREMENT BENEFITS UPON REAPPOINTMENT IN THE FOREIGN SERVICE ENTITLING HIM TO COUNT ALL PRIOR SERVICE IN CAPACITIES RECOGNIZED BY THE ACTS PRIOR TO HIS RESIGNATION, WHETHER CONTINUOUS OR NOT, AND ALSO, SUBJECT TO THE PROVISO OF THE ABOVE-QUOTED SUBSECTION (O), SERVICE IN THE POSITION IN THE DEPARTMENT OF STATE, WHICH IS UNDERSTOOD TO HAVE BEEN IMMEDIATELY PRIOR TO, AND CONTINUOUS WITH, HIS CURRENT SERVICE AS A FOREIGN SERVICE OFFICER. THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SUBSECTION (L) OF SECTION 26 AS IT APPEARED IN THE ACT OF MAY 24, 1924, IN FORCE ON FEBRUARY 9, 1927, WHEN THIS OFFICER RESIGNED FROM THE FOREIGN SERVICE, WAS AS FOLLOWS:

(L) WHENEVER A FOREIGN SERVICE OFFICER BECOMES SEPARATED FROM THE SERVICE EXCEPT FOR DISABILITY BEFORE REACHING THE AGE OF RETIREMENT, 75 PERCENTUM OF THE TOTAL AMOUNT OF CONTRIBUTIONS FROM HIS SALARY WITHOUT INTEREST SHALL BE RETURNED TO HIM.

IT IS PRESUMED THAT UNDER THIS STATUTE THERE WAS RETURNED IN THIS CASE ONLY 75 PERCENTUM OF THE OFFICER'S CONTRIBUTIONS, WITHOUT INTEREST, AND NOT THE TOTAL AMOUNT OF HIS CONTRIBUTIONS, PLUS INTEREST, AS AUTHORIZED UNDER THE CURRENT STATUTE. THERE APPEARS NOTHING IN THE LAW TO REQUIRE THAT, IN ORDER TO OBTAIN THE BENEFIT OF THE SERVICE FROM JULY 1, 1924, TO FEBRUARY 9, 1927, HE BE REQUIRED TO REFUND TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND ANY MORE THAN THE AMOUNT REFUNDED TO HIM PLUS INTEREST THEREON TO DATE OF SUCH REFUND. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

WITH REGARD TO THE PERIOD OF SERVICE IN THE POSITION IN THE DEPARTMENT OF STATE BETWEEN MAY 9, 1927, AND THE DATE OF REAPPOINTMENT AS A FOREIGN SERVICE OFFICER, THE OFFICER IS REQUIRED TO MAKE ,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," UNDER THE TERMS OF THE PROVISO TO SUBSECTION (O). SEE DECISION OF MARCH 20, 1933, 12 COMP. GEN. 551.