B-164928, SEPTEMBER 4, 1968, 48 COMP. GEN. 131

B-164928, SEPTEMBER 4, 1968, 48 COMP. GEN. 131

FOREIGN SERVICE - RETIREMENT - MILITARY DUTY - ANNUITY EFFECT THE ANNUITY PAYMENTS TO A RETIRED FOREIGN SERVICE OFFICER WHO IS RECALLED TO ACTIVE DUTY AS AN OFFICER IN THE UNITED STATES NAVAL RESERVE ARE NOT AFFECTED BY THE RECALL ABSENT PROVISION IN 22 U.S.C. 1112 THAT THE LIMITATION ON THE CONCURRENT RECEIPT OF AN ANNUITY AND CIVILIAN COMPENSATION BY A REEMPLOYED FOREIGN SERVICE OFFICER IN THE FEDERAL GOVERNMENT SERVICE IS INTENDED TO APPLY WHEN A RETIRED FOREIGN OFFICER IS RECALLED TO ACTIVE MILITARY DUTY AND, THEREFORE, THE ANNUITANT MAY CONTINUE TO RECEIVE HIS FOREIGN SERVICE ANNUITY WHILE SERVING IN THE NAVAL RESERVE.

TO EDWARD G. BOEHM, DEPARTMENT OF STATE, SEPTEMBER 4, 1968:

WE REFER TO YOUR LETTER OF JULY 23, 1968, REQUESTING OUR DECISION CONCERNING THE APPLICATION OF SECTION 872 OF THE FOREIGN SERVICE ACT, AS AMENDED, 22 U.S.C. 1112, TO THE CASE OF A RETIRED FOREIGN SERVICE OFFICER WHO RETURNS TO ACTIVE DUTY AS AN OFFICER IN THE UNITED STATES NAVAL RESERVE. IN SUCH CONNECTION YOU PRESENT THE FOLLOWING QUESTIONS FOR OUR CONSIDERATION:

1. ARE THE PROVISIONS OF SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, FOR APPLICATION IN THE PRESENT CIRCUMSTANCES, I.E., IS A NAVAL RESERVE OFFICER WHO RETURNS TO ACTIVE DUTY "REEMPLOYED IN THE FEDERAL GOVERNMENT SERVICE IN ANY APPOINTIVE POSITION" WITHIN THE MEANING OF THE STATUTE?

2. IF YOUR ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, MAY THE DEPARTMENT CONTINUE TO PAY THE ANNUITY WHILE THE ANNUITANT IS IN AN MILITARY DUTY STATUS? SECTION 872 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, SEPTEMBER 8, 1960, 22 U.S.C. 1112, IS IN PART AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY OFFICER OR EMPLOYEE OF THE SERVICE, WHO HAS RETIRED UNDER THIS CHAPTER AND IS RECEIVING AN ANNUITY PURSUANT THERETO, AND WHO IS REEMPLOYED IN THE FEDERAL GOVERNMENT SERVICE IN ANY APPOINTIVE POSITION EITHER ON A PART-TIME OR FULL-TIME BASIS, SHALL BE ENTITLED TO RECEIVE THE SALARY OF THE POSITION IN WHICH HE SERVING PLUS SO MUCH OF HIS ANNUITY PAYABLE UNDER THIS CHAPTER WHICH WHEN COMBINED WITH SUCH SALARY DOES NOT EXCEED DURING ANY CALENDAR YEAR THE BASIC SALARY SUCH OFFICER OR EMPLOYEE WAS ENTITLED TO RECEIVE UNDER SECTIONS 867 OR 870 OF THIS TITLE, ON THE DATE OF HIS RETIREMENT FROM THE SERVICE. ANY SUCH REEMPLOYED OFFICER OR EMPLOYEE WHO RECEIVES SALARY DURING ANY CALENDAR YEAR IN EXCESS OF THE MAXIMUM AMOUNT WHICH HE MAY BE ENTITLED TO RECEIVE UNDER THIS SUBSECTION SHALL BE ENTITLED TO SUCH SALARY IN LIEU OF BENEFITS HEREUNDER.

IN OUR DECISION OF NOVEMBER 30, 1934, 14 COMP. GEN. 425, CONSTRUING >SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, 5 U.S.C. 2255 NOTE, WHICH RELATED TO RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT AND WHICH PROVIDED FOR THE STOPPING OF AN ANNUITY UPON REEMPLOYMENT IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES, WE HELD THAT:

* * * THERE IS NO PROVISION OF LAW WHICH PROHIBITS EITHER EXPRESSLY OR BY REASONABLE IMPLICATION, THE RECEIPT OF CIVILIAN RETIREMENT ANNUITY AND ACTIVE MILITARY PAY AS A MEMBER OF THE OFFICERS RESERVE CORPS WHEN CALLED TO ACTIVE DUTY.

IN THE ABSENCE OF AN EXPRESS PROVISION IN SECTION 872 OF THE FOREIGN SERVICE ACT OR ANY CLEAR INDICATION IN THE LEGISLATIVE HISTORY THEREOF THAT THE CONGRESS INTENDED THE LIMITATION IN THAT SECTION TO APPLY TO A RETIRED FOREIGN SERVICE OFFICER WHEN HE IS RECALLED TO ACTIVE MILITARY DUTY AS A MEMBER OF THE NAVAL RESERVE, WE FIND IT LEGALLY PROPER TO APPLY THE RATIONALE OF THE DECISION OF NOVEMBER 30, 1934, IN THE PRESENT CASE. WE, THEREFORE, HOLD THAT THE ANNUITY ENTITLEMENT OF THE RETIRED FOREIGN SERVICE OFFICER IN QUESTION IS NOT AFFECTED BY HIS RECALL TO ACTIVE DUTY AS AN OFFICER IN THE UNITED STATES NAVAL RESERVE. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.