A-91850, JANUARY 27, 1938, 17 COMP. GEN. 609

A-91850: Jan 27, 1938

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PROVIDING THAT "NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES. " WAS ENACTED FOR THE PROTECTION OF THE UNITED STATES. AS THE WITHHOLDING OF COMPENSATION WHEN NOT NECESSARY FOR THE PROTECTION OF THE GOVERNMENT IS NOT REQUIRED THEREUNDER. THERE IS NO OBJECTION TO PAYMENT TO THE LEGAL REPRESENTATIVES OF A DECEASED OFFICER OR ANNUITANT OF SO MUCH OF THE AMOUNT TO HIS CREDIT IN THE FOREIGN SERVICE RETIREMENT FUND AS EXCEEDS THE OUTSTANDING SUSPENSIONS OR DISALLOWANCES IN HIS ACCOUNTS. 4 COMP. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION A-4924 OF SEPTEMBER 19. REGARDING REFUND OF AMOUNTS DEDUCTED FROM THE SALARIES OF FOREIGN SERVICE OFFICERS AND THE WITHHOLDING OF THE AMOUNT TO THE CREDIT OF THE OFFICER IN THE RETIREMENT FUND UNTIL THE OFFICER'S ACCOUNTS HAVE BEEN FINALLY SETTLED OR THE AMOUNT APPLIED IN SATISFACTION OF ANY DISALLOWANCE.

A-91850, JANUARY 27, 1938, 17 COMP. GEN. 609

RETIREMENT DEDUCTIONS - DECEASED FOREIGN SERVICE OFFICERS - WITHHOLDING CREDITS IN EXCESS OF SUSPENSIONS AND DISALLOWANCES IN OFFICER'S ACCOUNT SECTION 1766, REVISED STATUTES, PROVIDING THAT "NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE," WAS ENACTED FOR THE PROTECTION OF THE UNITED STATES, AND, AS THE WITHHOLDING OF COMPENSATION WHEN NOT NECESSARY FOR THE PROTECTION OF THE GOVERNMENT IS NOT REQUIRED THEREUNDER, THERE IS NO OBJECTION TO PAYMENT TO THE LEGAL REPRESENTATIVES OF A DECEASED OFFICER OR ANNUITANT OF SO MUCH OF THE AMOUNT TO HIS CREDIT IN THE FOREIGN SERVICE RETIREMENT FUND AS EXCEEDS THE OUTSTANDING SUSPENSIONS OR DISALLOWANCES IN HIS ACCOUNTS. 4 COMP. GEN. 312, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, JANUARY 27, 1938:

YOUR LETTER OF JANUARY 14, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION A-4924 OF SEPTEMBER 19, 1924, 4 C.G. 312, REGARDING REFUND OF AMOUNTS DEDUCTED FROM THE SALARIES OF FOREIGN SERVICE OFFICERS AND THE WITHHOLDING OF THE AMOUNT TO THE CREDIT OF THE OFFICER IN THE RETIREMENT FUND UNTIL THE OFFICER'S ACCOUNTS HAVE BEEN FINALLY SETTLED OR THE AMOUNT APPLIED IN SATISFACTION OF ANY DISALLOWANCE, WHICH DECISION WAS RENDERED IN INTERPRETING THE PROVISIONS OF SECTION 18 OF THE ACT OF MAY 24, 1924, THE PROVISIONS OF WHICH WERE CONTINUED AND AMPLIFIED AS SECTION 26 OF THE ACT OF FEBRUARY 23, 1931, U.S. CODE, TITLE 22, SECTION 21. FOR YOUR CONVENIENCE SECTIONS 26 (I) AND 26 (1) OF THE LATTER ACT ARE HEREUNDER QUOTED.

"/SECTION 26-I)

"IN CASE AN ANNUITANT DIES WITHOUT HAVING RECEIVED IN ANNUITIES AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF HIS CONTRIBUTIONS FROM SALARY WITH INTEREST THEREON AT 4 PERCENTUM PER ANNUM COMPOUNDED ANNUALLY UP TO THE TIME OF HIS DEATH, THE EXCESS OF SAID ACCUMULATED CONTRIBUTIONS OVER THE SAID ANNUITY PAYMENTS SHALL BE PAID TO HIS OR HER LEGAL REPRESENTATIVES; AND IN CASE A FOREIGN SERVICE OFFICER SHALL DIE WITHOUT HAVING REACHED THE RETIREMENT AGE THE TOTAL AMOUNT OF HIS CONTRIBUTION WITH ACCRUED INTEREST SHALL BE PAID TO HIS LEGAL REPRESENTATIVES.

"/SECTION 26-1)

"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.'

INQUIRY IS MADE PARTICULARLY IN CASES FALLING WITHIN THE PURVIEW OF THESE SECTIONS WHETHER A PROCEDURE MIGHT BE APPROVED WHICH WOULD ENABLE, WITH THE CONSENT OF THE CLAIMANT, A TEMPORARY RETENTION OF THE AMOUNT REPRESENTING OUTSTANDING DIFFERENCES WITHOUT PREJUDICE TO THE CLAIM OF THE LEGAL REPRESENTATIVES OF A DECEASED OFFICER OR ANNUITANT FOR THE PORTION OF THE REFUNDABLE CONTRIBUTION WITHHELD, AND PERMIT THE MORE SEASONABLE REFUNDING TO SUCH LEGAL REPRESENTATIVES OF THE BALANCE OF THE CONTRIBUTIONS OF THE DECEASED OFFICER OR ANNUITANT. THIS WILL AVOID ANY EMBARRASSMENT OR HARDSHIP WHICH THE DELAY IN EFFECTING REFUND IS KNOWN TO HAVE OCCASIONED IN SOME CASES IN THE PAST.

THE ADOPTION OF A PROCEDURE TO PERMIT THE TEMPORARY WITHHOLDING OF SUCH PORTION OF THE CONTRIBUTIONS AS WOULD PROTECT THE INTERESTS OF THE UNITED STATES WITHOUT PREJUDICING THE RIGHT OF THE CLAIMANTS TO RECEIVE THE ADDITIONAL AMOUNTS UPON SATISFACTION OF THE ACCOUNTING REQUIREMENTS AND TO PERMIT IMMEDIATE PAYMENT OF THE REMAINDER SEEMS A MATTER OF SIMPLE JUSTICE AND YOUR FAVORABLE CONSIDERATION IS RESPECTFULLY RECOMMENDED.

SECTION 1766, REVISED STATUTES, PROVIDES:

NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE. * * *

IN 4 COMP. GEN. 312, IT WAS HELD:

UNDER THE PROVISIONS OF SECTION 18 OF THE ACT OF MAY 24, 1924, 43 STAT. 144, AUTHORIZING THE ESTABLISHMENT OF A FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM AND PROVIDING THAT NONE OF THE MONEYS PERTAINING TO THE RETIREMENT AND DISABILITY FUND SHALL BE ASSIGNABLE, EITHER IN LAW OR EQUITY, OR BE SUBJECT TO EXECUTION, LEVY, OR ATTACHMENT, GARNISHMENT, OR OTHER LEGAL PROCESS, NO REFUND OF AMOUNTS DEDUCTED FROM THE SALARY OF AN OFFICER SEPARATED FROM THE SERVICE SHOULD BE MADE UNTIL THE OFFICER'S ACCOUNTS HAVE BEEN FINALLY SETTLED AND THE AMOUNT TO HIS CREDIT HAS BEEN APPLIED IN SATISFACTION OF ANY DISALLOWANCE.

SECTION 1766, REVISED STATUTES, SUPRA, WAS ENACTED FOR THE PROTECTION OF THE UNITED STATES AND IS SO TO BE CONSTRUED. ACCORDINGLY, THE WITHHOLDING OF COMPENSATION WHEN NOT NECESSARY FOR THE PROTECTION OF THE GOVERNMENT IS NOT REQUIRED. THEREFORE, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT TO THE LEGAL REPRESENTATIVES OF A DECEASED OFFICER OR ANNUITANT OF SO MUCH OF THE AMOUNT TO THE CREDIT OF THE DECEASED IN THE FOREIGN SERVICE RETIREMENT FUND AS EXCEEDS THE OUTSTANDING SUSPENSIONS OR DISALLOWANCES IN THE ACCOUNTS OF THE DECEASED.