A-8714, MAY 2, 1925, 4 COMP. GEN. 912

A-8714: May 2, 1925

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EXTENDING THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT ACT TO THOSE HOLDING POSITIONS AS AMBASSADORS OR MINISTERS OR POSITIONS IN THE DEPARTMENT OF STATE BY PROMOTION FROM THE CLASSIFIED SERVICE IS APPLICABLE TO THOSE PROMOTED TO SUCH POSITIONS FROM THE CLASSIFIED DIPLOMATIC SERVICE SUBSEQUENT TO FEBRUARY 5. IS NOT APPLICABLE TO PERSONS HOLDING SUCH POSITIONS BY APPOINTMENT AFTER HAVING BEEN SEPARATED FROM THEIR CLASSIFIED POSITIONS. HAVE NO OPTION BUT TO ACCEPT THE RETIREMENT PROVISIONS INCLUDING THE DEDUCTION FROM THEIR SALARIES OF THE 5 PERCENT FOR THE FOREIGN-SERVICE RETIREMENT FUND. 1925: I HAVE YOUR LETTER WITHOUT DATE RECEIVED IN THIS OFFICE MARCH 26. YOU STATE THAT THERE ARE AT PRESENT SEVERAL PERSONS WHO HAVE BEEN PROMOTED FROM THE CLASSIFIED DIPLOMATIC SERVICE TO THE POSITION OF MINISTER OR TO A POSITION IN THE DEPARTMENT OF STATE WHO THE DEPARTMENT BELIEVES COME WITHIN THE PROVISIONS OF SECTION 18 (O) SUPRA.

A-8714, MAY 2, 1925, 4 COMP. GEN. 912

FOREIGN SERVICE RETIREMENT THE PROVISION IN SECTION 18 (O) OF THE ACT OF MAY 24, 1924, 43 STAT. 140, EXTENDING THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT ACT TO THOSE HOLDING POSITIONS AS AMBASSADORS OR MINISTERS OR POSITIONS IN THE DEPARTMENT OF STATE BY PROMOTION FROM THE CLASSIFIED SERVICE IS APPLICABLE TO THOSE PROMOTED TO SUCH POSITIONS FROM THE CLASSIFIED DIPLOMATIC SERVICE SUBSEQUENT TO FEBRUARY 5, 1915, BUT IS NOT APPLICABLE TO PERSONS HOLDING SUCH POSITIONS BY APPOINTMENT AFTER HAVING BEEN SEPARATED FROM THEIR CLASSIFIED POSITIONS. THOSE FOREIGN-SERVICE OFFICERS ENTITLED TO THE BENEFITS OF SECTION 18 (O) OF THE ACT OF MAY 24, 1924, 43 STAT. 140, BY REASON OF PROMOTION FROM CLASSIFIED SERVICE, HAVE NO OPTION BUT TO ACCEPT THE RETIREMENT PROVISIONS INCLUDING THE DEDUCTION FROM THEIR SALARIES OF THE 5 PERCENT FOR THE FOREIGN-SERVICE RETIREMENT FUND.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 2, 1925:

I HAVE YOUR LETTER WITHOUT DATE RECEIVED IN THIS OFFICE MARCH 26, 1925, WHEREIN YOU REQUEST DECISION RELATIVE TO SEVERAL QUESTIONS ARISING UNDER THE ACT OF MAY 24, 1924, 43 STAT. 140, IN CONNECTION WITH THE RETIREMENT SYSTEM OF FOREIGN-SERVICE OFFICERS, AND MORE PARTICULARLY WITH REGARD TO THE PROVISIONS OF SECTION 18 (O) OF SAID ACT WHICH PROVIDES AS FOLLOWS:

ANY DIPLOMATIC SECRETARY OR CONSULAR OFFICER WHO HAS BEEN OR ANY FOREIGN SERVICE OFFICER WHO MAY HEREAFTER BE PROMOTED FROM THE CLASSIFIED SERVICE TO THE GRADE OF AMBASSADOR OR MINISTER, OR APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE SHALL BE ENTITLED TO ALL THE BENEFITS OF THIS SECTION IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN SERVICE OFFICERS.

YOU STATE THAT THERE ARE AT PRESENT SEVERAL PERSONS WHO HAVE BEEN PROMOTED FROM THE CLASSIFIED DIPLOMATIC SERVICE TO THE POSITION OF MINISTER OR TO A POSITION IN THE DEPARTMENT OF STATE WHO THE DEPARTMENT BELIEVES COME WITHIN THE PROVISIONS OF SECTION 18 (O) SUPRA, AND YOU REQUEST TO BE ADVISED WHETHER THIS CONCLUSION IS CORRECT (1) WITH REGARD TO THOSE PERSONS NOW HOLDING THE POSITION OF AMBASSADOR OR MINISTER OR POSITION IN THE DEPARTMENT OF STATE WHO HAVE BEEN PROMOTED TO SUCH POSITIONS FROM THE CLASSIFIED DIPLOMATIC SERVICE SUBSEQUENT TO FEBRUARY 5, 1915, THE DATE OF THE ACT CLASSIFYING SECRETARIES IN THE DIPLOMATIC SERVICE; AND (2) WITH REGARD TO THOSE PERSONS WHO WERE IN THE CLASSIFIED DIPLOMATIC SERVICE SUBSEQUENT TO FEBRUARY 5, 1915, BUT WHO RESIGNED AND WERE, AFTER AN INTERIM, APPOINTED AS AMBASSADOR OR MINISTER OR TO A POSITION IN THE DEPARTMENT OF STATE.

THE PURPORT OF SECTION 18 (O) IS TO EXTEND THE BENEFITS OF THE FOREIGN- SERVICE RETIREMENT ACT TO DIPLOMATIC SECRETARIES, CONSULAR OFFICERS, AND FOREIGN-SERVICE OFFICERS, PROMOTED FROM THE ,CLASSIFIED SERVICE" TO THE GRADE OF AMBASSADOR OR MINISTER OR TO A POSITION IN THE DEPARTMENT OF STATE. ONE OF THE PREREQUISITES AS HELD IN 4 COMP. GEN. 317 IS THAT THE OFFICER PROMOTED MUST HAVE BEEN, AT THE TIME OF SUCH PROMOTION, IN THE "CLASSIFIED SERVICE" IN ORDER TO COME WITHIN THE PURVIEW OF THIS SECTION. YOUR FIRST QUESTION IS, THEREFORE, ANSWERED IN THE AFFIRMATIVE, PROVIDED THE PERSONS REFERRED TO WERE MEMBERS OF THE CLASSIFIED DIPLOMATIC SERVICE AT THE TIME OF THEIR PROMOTION.

THE WORDS "PROMOTED FROM THE CLASSIFIED SERVICE" MUST BE TAKEN TO INCLUDE ONLY THOSE PERSONS WHO ARE ACTUALLY MEMBERS OF THE CLASSIFIED FOREIGN SERVICE AT THE TIME OF THEIR PROMOTION IN ORDER TO BE ENTITLED TO THE BENEFITS OF THE RETIREMENT PROVISION UNDER SECTION 18 (O). SEPARATION FROM THE SERVICE BY RESIGNATION SEVERS THE OFFICER'S CONNECTION WITH THE CLASSIFIED FOREIGN SERVICE, AND HIS SUBSEQUENT APPOINTMENT TO A POSITION OUTSIDE OF THE CLASSIFIED SERVICE CAN NOT OPERATE TO REINSTATE HIM IN HIS CLASSIFIED FOREIGN SERVICE STATUS, HIS POSITION BEING SPECIFICALLY EXCLUDED FROM THE DEFINITION OF A CLASSIFIED FOREIGN-SERVICE OFFICER AS CONTAINED IN SECTION 2 OF THE ACT OF MAY 24, 1924. FURTHERMORE, THE TERMS OF THE PROVISION INDICATE THAT THE RETIREMENT BENEFITS WERE INTENDED TO BE EXTENDED TO THE OFFICERS MENTIONED ONLY WHILE SERVING UNDER THE PROMOTION FROM THE CLASSIFIED SERVICE. YOU ARE ACCORDINGLY ADVISED THAT PERSONS WHO RESIGN WHILE MEMBERS OF THE CLASSIFIED FOREIGN SERVICE OR AFTER BEING PROMOTED FROM SAID SERVICE AND ARE SUBSEQUENTLY APPOINTED AS AMBASSADORS OR MINISTERS OR TO A POSITION IN THE DEPARTMENT OF STATE ARE NOT ENTITLED TO THE BENEFITS OF THE RETIREMENT PROVISIONS OF THIS ACT.

YOU ALSO REQUEST TO BE ADVISED AS TO WHETHER THE SALARIES OF OFFICERS ENTITLED TO THE BENEFITS OF THE RETIREMENT PROVISIONS OF THE ACT OF MAY 24, 1924, UNDER SECTION 18 (C) ARE SUBJECT TO THE RETIREMENT DEDUCTION OF 5 PERCENT AS PROVIDED FOR IN SECTION 18 (C) OF SAID ACT. THE LAST PART OF SECTION 18 (C) PROVIDES THAT OFFICERS PROMOTED AS SPECIFIED THEREIN "SHALL BE ENTITLED TO ALL THE BENEFITS OF THIS SECTION IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN-SERVICE OFFICERS.' THIS CLAUSE PLACES THOSE OFFICERS SO PROMOTED IN THE SAME STATUS AS FOREIGN-SERVICE OFFICERS FOR THE PURPOSE OF RETIRMENT BENEFITS, AND THEY ARE THEREFORE SUBJECT TO THE RETIREMENT DEDUCTIONS PROVIDED IN SECTION 18 (C).

RELATIVE TO THE QUESTION AS TO WHETHER IT IS OPTIONAL WITH THE OFFICER PROMOTED TO THE GRADE OF AMBASSADOR OR MINISTER OR TO A POSITION IN THE DEPARTMENT OF STATE TO EITHER ACCEPT OR REFUSE THE RETIREMENT BENEFITS OF THE ACT OF MAY 24, 1924, YOU ARE ADVISED THAT WHILE, AS YOU SUGGEST, IT MAY HAVE BEEN THE INTENTION OF THE CONGRESS TO LET THE OFFICER EXERCISE HIS OPTION IN THIS RESPECT, THERE IS NOTHING IN THE STATUTE TO INDICATE SUCH INTENT OR FROM WHICH SUCH INTENT REASONABLY CAN BE IMPLIED. IT IS EVIDENT THROUGHOUT THE ACT, AND IN THE REPORTS AND HEARINGS OF COMMITTEES IN CONNECTION THEREWITH, THAT THE PRIMARY PURPOSE FOR INSERTING SUBSECTION (C) UNDER SECTION 18 WAS TO AFFORD THE SAME RETIREMENT PRIVILEGES TO PERSONS THUS PROMOTED AS THOSE GRANTED THE FOREIGN-SERVICE OFFICERS, OR IN OTHER WORDS, TO PREVENT THE PROMOTION FROM DEPRIVING THEM OF THE RETIREMENT BENEFITS TO WHICH THEY WERE ENTITLED WHILE MEMBERS OF THE CLASSIFIED FOREIGN SERVICE. AS IT IS NOT OPTIONAL WITH FOREIGN-SERVICE OFFICERS TO ACCEPT OR REJECT THE BENEFITS AND OBLIGATIONS OF THE RETIREMENT ACT NEITHER CAN IT BE HELD THAT THE OFFICERS ENTITLED TO SAID BENEFITS UNDER SECTION 18 (C) HAVE ANY OPTION IN THE MATTER.