B-5426, AUGUST 19, 1939, 19 COMP. GEN. 234

B-5426: Aug 19, 1939

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THE 20 YEARS OF SERVICE SHOULD BE CONSIDERED A CONDITION PRECEDENT AND REQUIRED ACTUALLY TO BE PERFORMED BEFORE ELIGIBILITY IS ATTAINED OR CONTRIBUTION AUTHORIZED. 1939: I HAVE YOUR LETTER OF AUGUST 5. WHEN THE PERSON MAKING IT SHALL HAVE SERVED THE ACTUAL PERIOD OF TWENTY YEARS OR MORE AND THUS BECOMES ELIGIBLE UNDER THE TERMS OF THE LEGISLATION TO SHARE IN THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM. THERE ARE CERTAIN AMBASSADORS. OFFICERS OF THE DEPARTMENT WHO DO NOT AS YET HAVE TWENTY YEARS OF SERVICE BUT MAY EVENTUALLY SERVE THE REQUISITE PERIOD OF TIME TO QUALIFY UNDER THE ACT OF JULY 19. COPY OF WHICH IS ENCLOSED. OR IF A MINIMUM OF TWENTY YEARS OF SERVICE SHOULD BE CONSIDERED A CONDITION PRECEDENT AND REQUIRED ACTUALLY TO BE PERFORMED BEFORE ELIGIBILITY IS ATTAINED AND CONTRIBUTIONS MAY BE MADE.

B-5426, AUGUST 19, 1939, 19 COMP. GEN. 234

RETIREMENT - FOREIGN SERVICE - AMBASSADORS, MINISTERS, ETC., INCLUSION - VOLUNTARY CONTRIBUTIONS PRIOR TO REQUIRED PERIOD OF SERVICE UNDER THE ACT OF JULY 19, 1939, PUBLIC, NO. 197, 53 STAT. 1067, PERMITTING AMBASSADORS, MINISTERS, AND OTHERS TO BECOME ENTITLED, AFTER 20 YEARS OF SERVICE, TO THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY YEAR OF SUCH EMPLOYMENT SUBSEQUENT TO JULY 1, 1924, WITH INTEREST AS THEREIN SPECIFIED, THE 20 YEARS OF SERVICE SHOULD BE CONSIDERED A CONDITION PRECEDENT AND REQUIRED ACTUALLY TO BE PERFORMED BEFORE ELIGIBILITY IS ATTAINED OR CONTRIBUTION AUTHORIZED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF STATE, AUGUST 19, 1939:

I HAVE YOUR LETTER OF AUGUST 5, 1939, AS FOLLOWS:

THE ACT OF JULY 19, 1939, AMENDING THE ACT OF FEBRUARY 23, 1931, CONTAINS IN PARAGRAPH (1) THE FOLLOWING PROVISION:

"/1) ANY PERSON WHO HAS SERVED AS AMBASSADOR OR MINISTER, OR A PERSON APPOINTED TO A POSITION IN THE DEPARTMENT OF STATE AFTER SERVING AS AMBASSADOR MINISTER, OR FOREIGN SERVICE OFFICER, CONTINUOUSLY OR AT DIFFERENT TIMES FOR AN AGGREGATE PERIOD OF TWENTY YEARS OR MORE, IN WHICH PERIOD MAY BE INCLUDED ANY PERIODS OF SERVICE IN ANY OF THE CAPACITIES AND AS PROVIDED IN PARAGRAPH (O) OF THIS SECTION, MAY BECOME ENTITLED TO THE BENEFITS OF THIS SECTION AS HEREINAFTER PROVIDED BY PAYING INTO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND A SPECIAL CONTRIBUTION EQUAL TO 5 PERCENTUM OF HIS ANNUAL SALARY FOR EACH YEAR OF SUCH EMPLOYMENT SUBSEQUENT TO JULY 1, 1924, WITH INTEREST THEREON TO DATE OF PAYMENT COMPOUNDED ANNUALLY AT 4 PERCENTUM.'

THIS PROVISION APPEARS TO CONTEMPLATE THE PAYMENT OF THE SPECIAL CONTRIBUTION EQUAL TO 5 PERCENTUM OF ANNUAL SALARY FOR EACH YEAR OF SERVICE RENDERED SUBSEQUENT TO JULY 1, 1924, WITH INTEREST TO DATE OF PAYMENT, WHEN THE PERSON MAKING IT SHALL HAVE SERVED THE ACTUAL PERIOD OF TWENTY YEARS OR MORE AND THUS BECOMES ELIGIBLE UNDER THE TERMS OF THE LEGISLATION TO SHARE IN THE BENEFITS OF THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM.

THERE ARE CERTAIN AMBASSADORS, MINISTERS, AND OFFICERS OF THE DEPARTMENT WHO DO NOT AS YET HAVE TWENTY YEARS OF SERVICE BUT MAY EVENTUALLY SERVE THE REQUISITE PERIOD OF TIME TO QUALIFY UNDER THE ACT OF JULY 19, 1939, COPY OF WHICH IS ENCLOSED, AND THE QUESTION ARISES WHETHER SUCH OFFICERS MAY VOLUNTARILY BEGIN TO CONTRIBUTE 5 PERCENTUM OF THEIR SALARY BEFORE COMPLETION OF THE TWENTY-YEAR SERVICE PERIOD PRESCRIBED; OR IF A MINIMUM OF TWENTY YEARS OF SERVICE SHOULD BE CONSIDERED A CONDITION PRECEDENT AND REQUIRED ACTUALLY TO BE PERFORMED BEFORE ELIGIBILITY IS ATTAINED AND CONTRIBUTIONS MAY BE MADE.

YOUR PROMPT DECISION WITH RESPECT TO THIS MATTER WILL BE MUCH APPRECIATED.

THE STATUTE QUOTED IN YOUR LETTER ( PUBLIC, NO. 197) 53 STAT. 1067, PROVIDES FOR AN ADDITIONAL CLASS OF BENEFICIARIES BUT SUCH PERSONS ARE NOT ENTITLED TO THE BENEFITS PROVIDED THEREUNDER UNTIL THEY SHALL HAVE RENDERED SERVICE FOR AT LEAST 20 YEARS. UNLIKE SECTION 9 OF THE CIVIL SERVICE RETIREMENT ACT, 46 STAT. 475, PROVIDING THAT " ALL EMPLOYEES WHO MAY HEREAFTER BE BROUGHT WITHIN THE PURVIEW OF THIS ACT MAY ELECT TO MAKE SUCH DEPOSITS IN INSTALLMENTS DURING THE CONTINUANCE OF THEIR SERVICE IN SUCH AMOUNTS AND UNDER SUCH CONDITIONS AS MAY BE DETERMINED IN EACH INSTANCE * * " THE STATUTE HERE INVOLVED MAKES NO PROVISION FOR DEPOSITS IN INSTALLMENTS OR OTHERWISE DURING THE CONTINUANCE OF THEIR SERVICE. HAD THE CONGRESS INTENDED TO AUTHORIZE DEPOSITS BEFORE COMPLETION OF THE 20- YEAR PERIOD, IT MUST BE PRESUMED THAT THE CONGRESS WOULD HAVE SO PROVIDED AS IT DID IN THE CIVIL SERVICE RETIREMENT ACT CONCERNING CASES IN PARI MATERIA. ALSO, ADVANCE DEPOSITS IN THE CLASS OF CASES HERE INVOLVED WOULD INVOLVE CERTAIN ACCOUNTING DIFFICULTIES RESPECTING INTEREST ON SUCH DEPOSITS, WITHDRAWALS, ETC., AS TO WHICH THE STATUTE HAS MADE NO EXPRESS PROVISION.

IT IS CONCLUDED, THEREFORE, THAT A MINIMUM OF 20 YEARS OF SERVICE SHOULD BE CONSIDERED A CONDITION PRECEDENT AND REQUIRED ACTUALLY TO BE PERFORMED BEFORE ELIGIBILITY IS ATTAINED OR CONTRIBUTION AUTHORIZED.