B-32127, FEBRUARY 18, 1943, 22 COMP. GEN. 818

B-32127: Feb 18, 1943

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- IS REQUIRED. WHO IS RECALLED TO ACTIVE SERVICE. COUNT SAID PERIOD OF ACTIVE SERVICE IN COMPUTING THE AMOUNT OF ANNUITY TO WHICH HE IS ENTITLED UPON RESUMING A RETIRED STATUS. THAT THE OFFICER'S RIGHTS UPON RELEASE FROM ACTIVE SERVICE WILL BE FOR DETERMINATION UNDER THE STATUTES WHICH MAY THEN BE IN FORCE AND BY THE OFFICIAL WHO MAY THEN HAVE JURISDICTION UNDER THE LAW TO MAKE SUCH DETERMINATION. 1943: I HAVE YOUR LETTER OF JANUARY 29. WAS RECALLED TO ACTIVE SERVICE BY HIS APPOINTMENT AS THE PERSONAL REPRESENTATIVE OF THE PRESIDENT NEAR THE GOVERNMENT OF INDIA WITH RANK OF AMBASSADOR. PHILLIPS' RECALL TO ACTIVE DUTY WAS EFFECTED UNDER THE PROVISIONS OF SECTION 27 OF THE ACT OF FEBRUARY 23.

B-32127, FEBRUARY 18, 1943, 22 COMP. GEN. 818

RETIRED FOREIGN SERVICE OFFICERS RETURNED TO ACTIVE SERVICE - RETIREMENT DEDUCTIONS AND CREDIT FOR TIME SO SERVED IN COMPUTING RETIREMENT ANNUITIES A FOREIGN SERVICE OFFICER RETIRED WITH MAXIMUM ANNUITY--- AFTER MORE THAN 30 YEARS OF SERVICE--- IS REQUIRED, ON RETURN TO ACTIVE SERVICE, TO CONTRIBUTE FIVE PERCENT OF HIS BASIC SALARY TO THE FOREIGN SERVICE RETIREMENT FUND SO LONG AS HE CONTINUES IN THE ACTIVE SERVICE OF THE STATE DEPARTMENT, AND SUCH CONTRIBUTIONS MAY NOT BE REFUNDED TO HIM UPON RESUMPTION OF HIS RETIRED STATUS. A FOREIGN SERVICE OFFICER, RETIRED FOR REASONS OTHER THAN AGE AFTER SERVING LESS THAN 30 YEARS, WHO IS RECALLED TO ACTIVE SERVICE, MAY, UNDER THE FOREIGN SERVICE RETIREMENT ACT OF FEBRUARY 23, 1931, AS AMENDED, COUNT SAID PERIOD OF ACTIVE SERVICE IN COMPUTING THE AMOUNT OF ANNUITY TO WHICH HE IS ENTITLED UPON RESUMING A RETIRED STATUS, SUBJECT, HOWEVER, TO THE RULE ANNOUNCED IN 18 COMP. GEN. 741, THAT THE OFFICER'S RIGHTS UPON RELEASE FROM ACTIVE SERVICE WILL BE FOR DETERMINATION UNDER THE STATUTES WHICH MAY THEN BE IN FORCE AND BY THE OFFICIAL WHO MAY THEN HAVE JURISDICTION UNDER THE LAW TO MAKE SUCH DETERMINATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, FEBRUARY 18, 1943:

I HAVE YOUR LETTER OF JANUARY 29, 1943, REFERENCE FA, AS FOLLOWS:

THE HONORABLE WILLIAM PHILLIPS, RETIRED AMERICAN AMBASSADOR, WAS RECALLED TO ACTIVE SERVICE BY HIS APPOINTMENT AS THE PERSONAL REPRESENTATIVE OF THE PRESIDENT NEAR THE GOVERNMENT OF INDIA WITH RANK OF AMBASSADOR. MR. PHILLIPS' RECALL TO ACTIVE DUTY WAS EFFECTED UNDER THE PROVISIONS OF SECTION 27 OF THE ACT OF FEBRUARY 23, 1931 (46 STAT. 1213), AS AMENDED (22 U.S.C. SEC. 22) AS FOLLOWS:

"IN THE EVENT OF PUBLIC EMERGENCY ANY RETIRED FOREIGN SERVICE OFFICER MAY BE RECALLED TEMPORARILY TO ACTIVE SERVICE BY THE PRESIDENT, AND WHILE SO SERVING HE SHALL BE ENTITLED IN LIEU OF HIS RETIREMENT ALLOWANCE TO THE FULL PAY OF THE CLASS IN WHICH HE IS TEMPORARILY SERVING.'

MR. PHILLIPS WAS SERVING AS AMERICAN AMBASSADOR TO ITALY AT THE TIME IN 1940 WHEN HE APPLIES FOR REINSTATEMENT TO ELIGIBILITY TO RETIREMENT BENEFITS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM IN PURSUANCE OF THE PROVISIONS OF SECTION 26 (N) OF THE ACT OF FEBRUARY 23, 1931 AS AMENDED BY THE ACT OF JULY 19, 1939 (53 STAT. 1067). MR. PHILLIPS' ELIGIBILITY FOR INCLUSION UNDER THE FOREIGN SERVICE RETIREMENT ACT WAS ESTABLISHED (1) ON THE BASIS OF THIRTY YEARS OF SERVICE IN VARIOUS CAPACITIES RECOGNIZED BY THE ACT AS ANNUITABLE SERVICE AND (2) ON HIS PAYMENT INTO THE RETIREMENT FUND OF THE SPECIAL CONTRIBUTION FOR PAST SERVICE DATING FROM JULY 1, 1924 THROUGH SEPTEMBER 30, 1940. THE MANDATORY RETIREMENT DEDUCTION OF FIVE PERCENTUM OF BASIC SALARY OF $10,000 COMMENCED OCTOBER 1, 1940 AND CONTINUED THROUGH FEBRUARY 28, 1942, THE DATE OF MR. PHILLIPS' RETIREMENT. MR. PHILLIPS HAD SERVED MORE THAN THIRTY-TWO YEARS AND HE RECEIVED THE MAXIMUM ANNUITY PAYABLE AT THE RATE OF $6,000 BEGINNING MARCH 1, 1942.

THE RETIREMENT ALLOWANCE OF MR. PHILLIPS WAS SUSPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 27 OF THE FOREIGN SERVICE RETIREMENT ACT FOR THE PERIOD OF HIS RETURN TO ACTIVE SERVICE. THE SUSPENSION BECAME EFFECTIVE ON DECEMBER 18, 1942, THE DATE OF MR. PHILLIPS OATH OF OFFICE AS PERSONAL REPRESENTATIVE OF THE PRESIDENT IN INDIA.

THE RETURN OF MR. PHILLIPS TO ACTIVE DUTY HAS RAISED THE FOLLOWING QUESTIONS WHICH ARE PRESENTED TO YOU FOR DETERMINATION:

(1) SINCE MR. PHILLIPS HAD BEEN RECEIVING THE MAXIMUM ANNUITY UNDER LAW PRIOR TO HIS RETURN TO ACTIVE SERVICE, IS IT NOW NECESSARY TO CONSIDER HIM A PARTICIPANT IN THE FOREIGN SERVICE RETIREMENT SYSTEM AND SO TO DEDUCT FIVE PERCENTUM OF HIS BASIC SALARY OF $10,000 FOR CREDIT TO THE RETIREMENT FUND?

(2) IF QUESTION NUMBERED ONE IS AFFIRMATIVELY ANSWERED, IS THERE AUTHORITY TO REFUND TO MR. PHILLIPS, UPON RESUMPTION OF HIS RETIRED STATUS, THE TOTAL MANDATORY CONTRIBUTIONS WITH INTEREST AT FOUR PERCENTUM WITHHELD FROM DECEMBER 18, 1942 THROUGH THE DATE ON WHICH HIS ACTIVE DUTY STATUS CEASES?

IN ADDITION TO THE QUESTIONS RELATING SPECIFICALLY TO MR. PHILLIPS A THIRD QUESTION IS SUBMITTED FOR DETERMINATION, FOR FUTURE ADMINISTRATIVE USE:

(3) IF AN OFFICER WHO RETIRED FOR REASONS OTHER THAN AGE AFTER SERVING LESS THAN THIRTY YEARS WERE RECALLED TO ACTIVE SERVICE WOULD IT BE POSSIBLE FOR HIM TO RECEIVE CREDIT FOR THE PERIOD OF HIS RETURN TO ACTIVE DUTY AND THEREBY INCREASE THE AMOUNT OF HIS ANNUITY UPON RESUMING HIS RETIREMENT STATUS?

YOUR PROMPT CONSIDERATION OF THESE QUESTIONS WILL BE APPRECIATED.

SECTION 21 (C), TITLE 22, U.S. CODE, PROVIDES IN PERTINENT PART THAT:

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, * * *

SECTION 21 (D), TITLE 22, U.S. CODE, READS AS FOLLOWS:

WHEN ANY FOREIGN SERVICE OFFICER HAS REACHED THE AGE OF SIXTY-FIVE YEARS AND RENDERED AT LEAST FIFTEEN YEARS OF SERVICE HE SHALL BE RETIRED ON AN ANNUITY COMPUTED AS PRESCRIBED IN PARAGRAPH (E) OF THIS SECTION: PROVIDED, THAT ANY FOREIGN SERVICE OFFICER WHO HAS REACHED THE AGE OF FIFTY YEARS AND RENDERED AT LEAST THIRTY YEARS OF SERVICE MAY, IN THE DISCRETION OF THE SECRETARY OF STATE, BE RETIRED ON AN ANNUITY COMPUTED AS PRESCRIBED UNDER PARAGRAPH (E) OF THIS SECTION; OR IF ANY FOREIGN SERVICE OFFICER HAS REACHED THE AGE OF FIFTY YEARS AND HAS RENDERED AT LEAST FIFTEEN BUT LESS THAN THIRTY YEARS OF ACTUAL SERVICE, EXCLUSIVE OF EXTRA SERVICE CREDIT AS PROVIDED IN PARAGRAPH (K) OF THIS SECTION, HE MAY, AT THE INSTANCE OF THE SECRETARY OF STATE, BE RETIRED ON AN ANNUITY BASED ON SUCH ACTUAL PERIOD OF SERVICE: AND PROVIDED FURTHER, THAT THE PRESIDENT MAY IN HIS DISCRETION RETAIN ANY FOREIGN SERVICE OFFICER ON ACTIVE DUTY FOR SUCH PERIOD PRIOR TO HIS REACHING SEVENTY YEARS OF AGE AS HE MAY DEEM FOR THE INTERESTS OF THE UNITED STATES.

SECTION 21 (E), TITLE 22, U.S. CODE, PROVIDES IN PERTINENT PART, AS FOLLOWS:

THE ANNUITY OF A RETIRED FOREIGN SERVICE OFFICER SHALL BE EQUAL TO 2 PERCENTUM OF HIS AVERAGE ANNUAL BASIC SALARY FOR THE TEN YEARS NEXT PRECEDING THE DATE OF RETIREMENT, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE NOT EXCEEDING THIRTY YEARS AND IN DETERMINING THE AGGREGATE PERIOD OF SERVICE UPON WHICH THE ANNUITY IS TO BE BASED, THE FRACTIONAL PART OF A MONTH, IF ANY, IN THE TOTAL SERVICE SHALL BE ELIMINATED * * *.

THE FOREIGN SERVICE RETIREMENT ACT, AS AMENDED, CONTAINS NO EXPRESS PROVISION WITH RESPECT TO THE RESUMPTION OF CONTRIBUTIONS TO THE RETIREMENT FUND BY RETIRED FOREIGN SERVICE OFFICERS AFTER THEY ARE RECALLED TO ACTIVE DUTY, BUT SINCE THE RETIRED FOREIGN SERVICE OFFICER HERE INVOLVED IS NOW IN THE ACTIVE SERVICE AND IS NOW IN RECEIPT OF A SALARY--- AS DISTINGUISHED FROM AN ANNUITY--- AND SINCE SECTION 21 (C) OF THE CODE, SUPRA, REQUIRES A CONTRIBUTION TO THE RETIREMENT FUND OF FIVE PERCENTUM OF THE BASIC SALARY OF ALL FOREIGN SERVICE OFFICERS ELIGIBLE TO RETIREMENT (AND THE OFFICER'S ELIGIBILITY TO RETIREMENT NOT APPEARING AFFECTED BY HIS REENTRY INTO THE SERVICE) IT WOULD APPEAR THAT MR. PHILLIPS IS REQUIRED BY VIRTUE OF SAID PROVISIONS OF THE STATUTE, TO CONTRIBUTE FIVE PERCENTUM OF HIS BASIC SALARY SO LONG AS HE CONTINUES IN THE ACTIVE SERVICE OF THE STATE DEPARTMENT. HENCE QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

WHILE THE FOREIGN SERVICE RETIREMENT ACT PROVIDES SPECIFICALLY FOR REFUND IN CERTAIN CASES, IT MAKES NO PROVISION FOR REFUND TO AN OFFICER RETIRED (AFTER MORE THAN THIRTY YEARS OF SERVICE) OF THE DEDUCTIONS MADE FROM HIS SALARY FOR YEARS IN EXCESS OF THIRTY. THE FACT THAT THE EXCESS YEARS OF SERVICE WERE RENDERED UPON RECALL TO ACTIVE DUTY AFTER RETIREMENT WOULD NOT APPEAR TO BE MATERIAL, AND HIS RIGHTS WOULD BE THE SAME AS THOUGH THE PERIODS OF HIS ACTIVE SERVICE HAD BEEN CONTINUOUS. QUESTION 2 IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO QUESTION 3, SECTION 21 (O), TITLE 22, U.S. CODE, PROVIDES:

FOR THE PURPOSES OF SECTIONS 1-21, 22, 23, 23A-23L OF THIS TITLE, SECTIONS 152A, 154, AND 297 OF TITLE 5, AND SECTION 334 OF TITLE 28 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 * * *. ( ITALICS SUPPLIED.) THE STATUTE AUTHORIZES, IN THE COMPUTATION OF RETIREMENT BENEFITS, THE COUNTING OF "PERIODS OF SERVICE AT DIFFERENT TIMES AS EITHER A DIPLOMATIC OR CONSULAR OFFICER.' ACCORDINGLY, UNDER THE FOREIGN SERVICE RETIREMENT ACT AS NOW WORDED, A FOREIGN SERVICE OFFICER RETIRED FOR REASONS OTHER THAN AGE WHEN RECALLED TO ACTIVE DUTY AS A FOREIGN SERVICE OFFICER WOULD APPEAR TO BE ENTITLED TO ANNUITABLE CREDIT FOR THE ACTIVE SERVICE SO RENDERED; AND, UPON TERMINATION OF DUTY UNDER SUCH RECALL, IT WOULD APPEAR PROPER TO HAVE HIS RETIREMENT ANNUITY RECOMPUTED TO INCLUDE THE ADDITIONAL TIME SO SERVED. BUT SEE 18 COMP. GEN. 741, PARTICULARLY THE LAST PARAGRAPH THEREOF. COMPARE, FOR INSTANCE, SECTION 2 (B) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACT OF JANUARY 24, 1942, 56 STAT. 15, WHICH PROVIDES:

NO PERSON SEPARATED FROM THE SERVICE WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNLESS THE APPOINTING AUTHORITY DETERMINES THAT HE IS POSSESSED OF SPECIAL QUALIFICATIONS, IN WHICH EVENT PAYMENT OF HIS ANNUITY SHALL BE TERMINATED DURING THE PERIOD OF HIS APPOINTMENT. ANY SUCH PERSON WHOSE ANNUITY IS TERMINATED SHALL, UPON THE TERMINATION OF HIS APPOINTMENT, HAVE HIS SUBSEQUENT ANNUITY RIGHTS DETERMINED UNDER THE PROVISIONS OF LAW IN EFFECT AT THE TIME OF SUCH TERMINATION.