A-61967, AUGUST 6, 1936, 16 COMP. GEN. 121

A-61967: Aug 6, 1936

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RETIREMENT - FOREIGN SERVICE OFFICERS - REEMPLOYMENT OF DISABLED ANNUITANTS THERE IS NO PROHIBITION OF LAW AGAINST THE REEMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE OF A FORMER FOREIGN SERVICE OFFICER. IN ASSEMBLING HIS RECORD IT WAS DISCLOSED THAT MR. BRUNSWICK WAS EMPLOYED AS A CORRESPONDENCE DICTATOR. A TELEPHONIC INQUIRY OF THE RESETTLEMENT ADMINISTRATION ELICITS THE INFORMATION THAT HE WAS APPOINTED AS A CORRESPONDENCE CLERK. IS STILL SERVING. BRUNSWICK WAS BORN OCTOBER 17. WHICH IS 65 YEARS. BRUNSWICK WAS RETIRED FROM THE FOREIGN SERVICE FOR PERMANENT DISABILITY FOR DUTY IN THE FOREIGN SERVICE. THERE IS NO SPECIFIC PROVISION IN THE RETIREMENT LAW FOR FOREIGN SERVICE (46 STAT. 1211) WHICH PROHIBITS A RETIRED OFFICER FROM ENGAGING IN OTHER GOVERNMENT WORK.

A-61967, AUGUST 6, 1936, 16 COMP. GEN. 121

RETIREMENT - FOREIGN SERVICE OFFICERS - REEMPLOYMENT OF DISABLED ANNUITANTS THERE IS NO PROHIBITION OF LAW AGAINST THE REEMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE OF A FORMER FOREIGN SERVICE OFFICER, NOT OF AUTOMATIC RETIREMENT AGE, RETIRED FOR DISABILITY, BUT RETIREMENT ANNUITY MAY NOT BE PAID CONCURRENTLY FOR THE PERIOD OF SUCH EMPLOYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 6, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 22, 1936, AS FOLLOWS:

UNDER DATE OF MARCH 6, 1936, THE CHIEF OF THE APPOINTMENT SECTION, RESETTLEMENT ADMINISTRATION, BY DIRECTION OF THE ADMINISTRATOR, REQUESTED THAT CLEARANCE OF RECORD BE GIVEN, IN ACCORDANCE WITH THE PRESIDENT'S REQUEST OF OCTOBER 2, 1934, TO PERMIT THE APPOINTMENT OF WILLIAM WASHINGTON BRUNSWICK, WHO CLAIMED PRIOR SERVICE IN THE STATE DEPARTMENT AND THE NATIONAL EMERGENCY COUNCIL. IN ASSEMBLING HIS RECORD IT WAS DISCLOSED THAT MR. BRUNSWICK HAD BEEN EMPLOYED IN THE CONSULAR SERVICE AS FOLLOWS:

CHART

4-24-07 APPOINTED VICE AND DEPUTY CONSUL AND CLERK, $750 PER ANNUM,

BARMEN, GERMANY.

2-19-18 CONSUL, CLASS VIII, $2,500 PER ANNUM, FOREIGN SERVICE.

9- 5-19 APPOINTED CONSUL, CLASS VII, $3,000 PER ANNUM, FOREIGN

SERVICE.

7- 1-24 FOREIGN SERVICE OFFICER, $3,500 PER ANNUM.

8-31-32 RETIRED FOR PHYSICAL DISABILITY WHILE SERVING AS CONSUL AT

LISBON AND FOREIGN SERVICE OFFICER OF CLASS VIII, $3,500

PER ANNUM. RETIRED FOR PHYSICAL DISABILITY UNDER THE

PROVISIONS OF SECTION 26 (J) OF THE ACT OF FEBRUARY 23,

1931.

THE REPORT FROM THE NATIONAL EMERGENCY COUNCIL SHOWS THAT MR. BRUNSWICK WAS EMPLOYED AS A CORRESPONDENCE DICTATOR, $7.00 PER DIEM, FROM MAY 9, 1935 TO JUNE 30, 1935. A TELEPHONIC INQUIRY OF THE RESETTLEMENT ADMINISTRATION ELICITS THE INFORMATION THAT HE WAS APPOINTED AS A CORRESPONDENCE CLERK, $1,620 PER ANNUM, IN THAT AGENCY, ON FEBRUARY 17, 1936, AND IS STILL SERVING.

THE RECORDS OF THIS COMMISSION SHOW MR. BRUNSWICK WAS BORN OCTOBER 17, 1882. HE, THEREFORE, HAS NOT YET REACHED THE AUTOMATIC RETIREMENT AGE FOR FOREIGN SERVICE OFFICERS, WHICH IS 65 YEARS.

THE DEPARTMENT OF STATE ADVISES THAT MR. BRUNSWICK WAS RETIRED FROM THE FOREIGN SERVICE FOR PERMANENT DISABILITY FOR DUTY IN THE FOREIGN SERVICE.

THERE IS NO SPECIFIC PROVISION IN THE RETIREMENT LAW FOR FOREIGN SERVICE (46 STAT. 1211) WHICH PROHIBITS A RETIRED OFFICER FROM ENGAGING IN OTHER GOVERNMENT WORK.

HOWEVER, IN YOUR DECISION OF OCTOBER 6, 1934 (14 COMP. GEN. 285), YOU STATED THAT THE PURPOSE AND INTENT OF CIVIL RETIREMENT LEGISLATION IS ENTIRELY INCONSISTENT WITH THE DUAL PAYMENT OF ACTIVE SERVICE PAY AND CIVILIAN RETIREMENT ANNUITY TO THE SAME PERSON FOR THE SAME PERIOD OF TIME, AND SET FORTH THE GENERAL PRINCIPLE THAT: "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME.' THIS PRINCIPLE WAS MADE APPLICABLE TO ANY REEMPLOYMENT IN ANY CAPACITY IN THE GOVERNMENT CIVIL SERVICE WHICH MAY BE COUNTED TOWARD LONGEVITY IN COMPUTING RETIREMENT ANNUITY. THE SERVICE OF MR. BRUNSWICK IN THE POSITION HE IS NOW HOLDING MAY NOT BE COUNTED TOWARD LONGEVITY UNDER THE TERMS OF THE RETIREMENT LAW FOR FOREIGN SERVICE.

IN ORDER THAT THIS COMMISSION MAY BE IN A POSITION TO TAKE PROPER ACTION WHEN AN ANNUITANT UNDER THE RETIREMENT LAW IS PROPOSED FOR APPOINTMENT TO A POSITION IN THE CLASSIFIED SERVICE, YOUR DECISION ON THE FOLLOWING QUESTIONS IS REQUESTED:

1. MAY A FOREIGN SERVICE OFFICER OF THE STATE DEPARTMENT, RETIRED FOR REASONS OTHER THAN HAVING REACHED AUTOMATIC RETIREMENT AGE, BE REEMPLOYED IN THE EXECUTIVE CIVIL SERVICE?

2. IF YOUR ANSWER TO THE FOREGOING QUESTION IS IN THE AFFIRMATIVE, MAY BOTH CIVILIAN COMPENSATION AND RETIREMENT ANNUITY BE PAID OVER THE SAME PERIOD OF TIME?

WHILE THERE IS FOUND NO PROHIBITION IN THE FOREIGN SERVICE RETIREMENT ACT AGAINST REEMPLOYMENT OF FOREIGN SERVICE OFFICERS RETIRED FOR DISABILITY, IT WAS HELD IN A SIMILAR CASE INVOLVING A RETIRED LIGHTHOUSE EMPLOYEE, 10 COMP. GEN. 309, QUOTING FROM THE SYLLABUS:

AN EMPLOYEE OF THE LIGHTHOUSE SERVICE WHO WAS RETIRED UNDER THE ACT OF JUNE 20, 1918, 40 STAT. 608, UPON HIS OWN REQUEST, HAVING REACHED THE OPTIONAL AGE OF RETIREMENT OF 65 YEARS AND HAVING HAD 30 YEARS' SERVICE, MAY BE REINSTATED OR REEMPLOYED ON THE ACTIVE LIST AT ANY TIME PRIOR TO REACHING THE COMPULSORY RETIREMENT AGE OF 70 YEARS, ONLY UPON THE RELINQUISHMENT OF HIS RETIRED STATUS AND DISCONTINUANCE OF THE RETIRED PAY INCIDENT THERETO.

SEE ALSO 14 COMP. GEN. 586, INVOLVING A RETIRED EMPLOYEE OF THE PANAMA CANAL, IN WHICH IT WAS HELD AT PAGES 588, 589:

THERE IS NO PROVISION OF LAW EITHER IN THE PANAMA CANAL RETIREMENT ACT OR IN ANY OTHER STATUTE WHICH AUTHORIZES THE RECEIPT OF RETIREMENT ANNUITY AND ACTIVE CIVILIAN COMPENSATION BY THE SAME PERSON FOR THE SAME PERIOD OF TIME.

INDEPENDENTLY OF THE TERMS OF THE PANAMA CANAL RETIREMENT ACT CITED BY YOU AND NOTWITHSTANDING THAT THE PROVISIONS OF THE CIVIL RETIREMENT ACT MORE SPECIFICALLY SAFEGUARD AGAINST SUCH DUAL PAYMENTS BY THE GOVERNMENT-- - PAYMENT OF RETIREMENT ANNUITY AT THE SAME TIME THE ANNUITANT IS DRAWING PAY FOR ACTIVE SERVICE--- SUCH DUAL PAYMENTS WOULD BE WHOLLY INCONSISTENT WITH THE BASIC PURPOSE UNDERLYING CIVIL RETIREMENT LEGISLATION AND WOULD VIOLATE A BROAD PRINCIPLE LONG RECOGNIZED IN GOVERNMENTAL AFFAIRS. COMP. GEN. 309; 13 ID. 54; 14 ID. 285, 288; ID. 425, 426.

COMPARE, ALSO, 14 COMP. GEN. 791.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THERE IS NO PROHIBITION OF LAW AGAINST THE REEMPLOYMENT IN THE EXECUTIVE CIVIL SERVICE OF A FORMER FOREIGN SERVICE OFFICER--- WHO HAS NOT ATTAINED THE AGE FOR AUTOMATIC RETIREMENT--- RETIRED FOR DISABILITY, BUT HIS RETIREMENT ANNUITY MAY NOT BE PAID CONCURRENTLY FOR THE PERIOD OF SUCH EMPLOYMENT. SEE COPY OF LETTER OF THIS DATE TO THE SECRETARY OF STATE.