B-62591, MARCH 12, 1947, 26 COMP. GEN. 669

B-62591: Mar 12, 1947

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APPOINTMENTS - FOREIGN SERVICE OFFICERS - AFFIDAVITS FOREIGN SERVICE RESERVE OFFICERS APPOINTED OR ASSIGNED BY THE SECRETARY OF STATE UNDER THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946 WHO ARE TO OCCUPY POSITIONS OF EQUAL RESPONSIBILITY AND IMPORTANCE AS ARE OCCUPIED BY FOREIGN SERVICE OFFICERS AND WHO ARE INVESTED WITH AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY. ARE REQUIRED TO FILE. ARE TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY. ARE REQUIRED TO FILE. SUCH AFFIDAVIT IS NOT REQUIRED OF FOREIGN SERVICE STAFF OFFICERS WHO AID OR ASSIST IN THE PERFORMANCE OF DUTIES OF AN OFFICE WHERE THE TITLE IS IN ANOTHER.

B-62591, MARCH 12, 1947, 26 COMP. GEN. 669

APPOINTMENTS - FOREIGN SERVICE OFFICERS - AFFIDAVITS FOREIGN SERVICE RESERVE OFFICERS APPOINTED OR ASSIGNED BY THE SECRETARY OF STATE UNDER THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946 WHO ARE TO OCCUPY POSITIONS OF EQUAL RESPONSIBILITY AND IMPORTANCE AS ARE OCCUPIED BY FOREIGN SERVICE OFFICERS AND WHO ARE INVESTED WITH AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY, ARE REQUIRED TO FILE, AT TIME OF THEIR APPOINTMENT, AND ALSO WHEN COMMISSIONED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AS DIPLOMATIC OR CONSULAR OFFICERS, THE AFFIDAVIT PRESCRIBED IN 5 U.S.C. 21A TO THE EFFECT THAT NO CONSIDERATION HAS BEEN PAID FOR SUCH APPOINTMENT. GENERALLY, FOREIGN SERVICE STAFF OFFICERS OR EMPLOYEES WHO, BY VIRTUE OF THEIR APPOINTMENT BY THE SECRETARY OF STATE PURSUANT TO THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, ARE TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY, ARE REQUIRED TO FILE, AT THE TIME OF THEIR APPOINTMENT, THE AFFIDAVIT PRESCRIBED IN 5 U.S.C. 21A TO THE EFFECT THAT NO CONSIDERATION HAS BEEN PAID FOR SUCH APPOINTMENT; HOWEVER, SUCH AFFIDAVIT IS NOT REQUIRED OF FOREIGN SERVICE STAFF OFFICERS WHO AID OR ASSIST IN THE PERFORMANCE OF DUTIES OF AN OFFICE WHERE THE TITLE IS IN ANOTHER. FOREIGN SERVICE RESERVE OFFICERS AND FOREIGN SERVICE STAFF OFFICERS, WHEN COMMISSIONED PURSUANT TO THE FOREIGN SERVICE ACT OF 1946 AS DIPLOMATIC OR CONSULAR OFFICERS BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ARE REQUIRED TO FILE THE AFFIDAVIT PRESCRIBED IN 5 U.S.C. 21A TO THE EFFECT THAT NO CONSIDERATION HAS BEEN PAID FOR SUCH APPOINTMENT. PROMOTIONS OF FOREIGN SERVICE OFFICERS TO HIGHER CLASSES BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN ACCORDANCE WITH THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, CONSTITUTE NEW APPOINTMENTS, SO THAT SUCH OFFICERS ARE REQUIRED TO FILE THE AFFIDAVIT PRESCRIBED IN 5 U.S.C. 21A TO THE EFFECT THAT NO CONSIDERATION HAS BEEN PAID FOR SUCH AN APPOINTMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, MARCH 12, 1947:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1946 DF/X, AS FOLLOWS:

REFERENCE IS MADE TO SECTIONS 512, 524 AND 533 OF PUBLIC LAW 724, 79TH CONGRESS, APPROVED AUGUST 13, 1946, RELATING TO COMMISSIONS OF DIPLOMATIC AND CONSULAR OFFICERS, AND TO SECTIONS 21A AND 21B OF TITLE 5 OF THE U.S.C. RELATING TO AFFIDAVITS ON STANDARD FORM 1041 WHICH ARE REQUIRED TO BE FILED BY CIVIL OFFICERS OF THE UNITED STATES. REFERENCE IS ALSO MADE TO SECTION 621 OF PUBLIC LAW 724, 79TH CONGRESS, RELATING TO PROMOTIONS OF FOREIGN SERVICE OFFICERS.

IN CONNECTION WITH THE DRAFTING OF REGULATIONS UNDER THE FOREIGN SERVICE ACT OF 1946, PUBLIC LAW 724, 79TH CONGRESS, APPROVED AUGUST 13, 1946, IT IS NECESSARY TO DETERMINE WHICH OF THE OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE ARE "CIVIL OFFICERS OF THE UNITED STATES" TO THE EXTENT THAT THEY WILL BE REQUIRED TO FILE FORM 1041 AFFIDAVITS.

THE PROVISIONS OF LAW IN 5 U.S.C. 21A AND 21B APPEAR TO BE CONCLUSIVE THAT AMBASSADORS AND MINISTERS, FOREIGN SERVICE OFFICERS, AND CONSULAR AGENTS MUST FILE THOSE AFFIDAVITS AT THE TIME OF ORIGINAL APPOINTMENT BUT THIS DEPARTMENT IS UNABLE TO DETERMINE THEREFROM WHETHER THESE AFFIDAVITS MUST BE FILED BY FOREIGN SERVICE RESERVE OFFICERS WHO, UNDER SECTION 523 OF THE FOREIGN SERVICE ACT OF 1946, ARE APPOINTED OR ASSIGNED TO ACTIVE DUTY BY ORDER OF THE SECRETARY OF STATE AND WHO, AT THE TIME OF APPOINTMENT OR AT ANY FUTURE DATE, MAY BE COMMISSIONED BY THE PRESIDENT, BY AND WITH THE CONSENT OF THE SENATE, AS DIPLOMATIC OR CONSULAR OFFICERS. SIMILARLY, THE DEPARTMENT IS UNABLE TO DETERMINE WHETHER THOSE AFFIDAVITS MUST BE FILLED BY FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES WHO ARE APPOINTED BY THE SECRETARY OF STATE AND AND WHO, AT THE TIME OF APPOINTMENT OR AT ANY LATER DATE, MAY BE COMMISSIONED BY THE PRESIDENT AS CONSULS, OR BY THE SECRETARY OF STATE AS VICE CONSULS.

FROM THE NATURE OF THE APPOINTMENTS OF FOREIGN SERVICE RESERVE AND FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES IT DOES NOT APPEAR THAT THEY ARE "CIVIL OFFICERS OF THE UNITED STATES" AUTHORIZED TO ACT IN THEIR OWN NAMES FOR OR ON BEHALF OF THE UNITED STATES UNTIL AND UNLESS THEY ARE COMMISSIONED AS CONSULAR OR DIPLOMATIC OFFICERS AS PROVIDED BY THE ACT. IT WILL BE NOTED FROM THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946 THAT RESERVE AND STAFF OFFICERS RECEIVE COMPENSATION UNDER THEIR APPOINTMENTS AS RESERVE OR STAFF OFFICERS OR EMPLOYEES AND THAT THEY DO NOT RECEIVE ANY COMPENSATION AS CONSULAR OR DIPLOMATIC OFFICERS UNDER THEIR COMMISSIONS. THUS IT IS POSSIBLE THAT THEY ARE NOT "CIVIL OFFICERS OF THE UNITED STATES" UNTIL THEY RECEIVE COMMISSIONS AS DIPLOMATIC OR CONSULAR OFFICERS.

WITH RESPECT TO THE PROMOTION OF CIVIL OFFICERS IT IS NOTED THAT 5 U.S.C. 21A RELATES SOLELY TO OFFICERS APPOINTED AS CIVIL OFFICERS OF THE UNITED STATES AND IS SILENT ON THE PROMOTION OF SUCH OFFICERS TO HIGHER CLASSES, BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

YOUR DECISION IS, THEREFORE, REQUESTED ON THE FOLLOWING SPECIFIC QUESTIONS:

1. ARE FOREIGN SERVICE RESERVE OFFICERS AND FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES SUBJECT TO THE PROVISIONS OF 5 U.S.C. 21A AND 21B AT THE TIME OF APPOINTMENT, NECESSITATING THAT THEY FILE FORM 1041 AFFIDAVITS?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, DO THOSE OFFICERS AND EMPLOYEES BECOME SUBJECT TO HE PROVISIONS OF 5 U.S.C. 21A AND 21B WHEN THEY ARE COMMISSIONED AS DIPLOMATIC OR CONSULAR OFFICERS?

3. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WILL IT BE NECESSARY FOR THOSE PERSONS TO FILE ADDITIONAL FORM 1041 AFFIDAVITS WHEN THEY RECEIVE COMMISSIONS AS DIPLOMATIC OR CONSULAR OFFICERS?

4. ARE FOREIGN SERVICE OFFICERS PROMOTED TO HIGHER CLASSES BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN ACCORDANCE WITH THE PROVISION OF THE FOREIGN SERVICE ACT OF 1946 REQUIRED TO SUBMIT NEW AFFIDAVITS ON FORMS 1041 AT THE TIME OF EACH SUCH PROMOTION?

YOUR EARLY DECISION ON THESE QUESTIONS WILL BE APPRECIATED SO THAT THE INFORMATION MAY BE COMMUNICATED TO THE OFFICERS OF THE FOREIGN SERVICE AS SOON AS POSSIBLE.

SECTIONS 21A AND 21B TITLE 5, U.S.C. (ACT OF DECEMBER 11, 1926, AS AMENDED), REFERRED TO IN YOUR LETTER, PROVIDE:

EACH INDIVIDUAL APPOINTED AFTER DEC. 11, 1926, AS A CIVIL OFFICER OF THE UNITED STATES BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, OR BY A COURT OF LAW, OR BY THE HEAD OF A DEPARTMENT, SHALL, WITHIN THIRTY DAYS AFTER THE EFFECTIVE DATE OF HIS APPOINTMENT, FILE WITH THE COMPTROLLER GENERAL OF THE UNITED STATES AN AFFIDAVIT STATING THAT NEITHER HE NOR ANYONE ACTING IN HIS BEHALF HAS GIVEN, TRANSFERRED, PROMISED, OR PAID ANY CONSIDERATION FOR OR IN THE EXPECTATION OR HOPE OF RECEIVING ASSISTANCE IN SECURING SUCH APPOINTMENT.

NO SALARY SHALL BE PAID TO ANY INDIVIDUAL REQUIRED UNDER SECTION 21A OF THIS TITLE TO FILE AN AFFIDAVIT UNTIL SUCH AFFIDAVIT HAS BEEN FILED.

GENERAL REGULATIONS NO. 62 OF THE GENERAL ACCOUNTING OFFICE, 6 COMP. GEN. 890, RELATING TO THE ABOVE-QUOTED PROVISIONS IS, IN PART, AS FOLLOWS:

THE PROVISIONS OF THIS ENACTMENT APPLY TO ALL APPOINTMENTS BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, BY THE PRESIDENT ALONE, BY A COURT OF LAW, OR BY THE HEAD OF ANY OF THE TEN EXECUTIVE DEPARTMENTS, BUT THE TERM "OFFICER" AS USED THEREIN, EMBRACES ONLY OFFICERS IN THE STRICT OR CONSTITUTIONAL SENSE, THAT IS TO SAY, PERSONS APPOINTED IN THE MANNER PROVIDED UNDER THE CONSTITUTION AND INVESTED BY LAW WITH AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY, AS DISTINGUISHED FROM PERSONS EMPLOYED OR APPOINTED TO AID OR ASSIST IN THE PERFORMANCE OF THE DUTIES OF AN OFFICE THE TITLE TO WHICH IS VESTED IN ANOTHER. ALL POSTMASTERS OF WHATEVER CLASS ARE OFFICERS WITHIN THE MEANING OF THE ENACTMENT.

WITH RESPECT TO THE FIRST QUESTION PRESENTED IN YOUR LETTER, SECTIONS 401 (3) AND 522 OF THE FOREIGN SERVICE ACT OF 1946, PUBLIC LAW 724, APPROVED AUGUST 13, 1946, 60 STAT. 1002, 1009, PROVIDE THAT FOREIGN SERVICE RESERVE OFFICERS SHALL BE ASSIGNED BY THE SECRETARY OF STATE TO THE FOREIGN SERVICE ON A TEMPORARY BASIS FROM GOVERNMENT AGENCIES OR APPOINTED BY THE SECRETARY ON A TEMPORARY BASIS FROM OUTSIDE THE GOVERNMENT IN ORDER TO MAKE AVAILABLE TO THE SERVICE SUCH SPECIALIZED SKILLS AS MAY FROM TIME TO TIME BE REQUIRED. SECTIONS 523, 524 AND 526 OF THE ACT, 60 STAT. 1009, 1010, PROVIDE AS FOLLOWS:

SEC. 523. A RESERVE OFFICER, APPOINTED OR ASSIGNED TO ACTIVE DUTY, SHALL BE APPOINTED OR ASSIGNED TO A CLASS AND NOT TO A PARTICULAR POST, AND SUCH AN OFFICER MAY BE ASSIGNED TO POSTS AND MAY BE TRANSFERRED FROM ONE POST TO ANOTHER BY ORDER OF THE SECRETARY AS THE INTEREST OF THE SERVICE MAY REQUIRE. THE CLASS TO WHICH HE SHALL BE APPOINTED OR ASSIGNED SHALL DEPEND ON HIS AGE, QUALIFICATIONS, AND EXPERIENCE.

SEC. 524. WHENEVER THE SECRETARY SHALL DEEM IT IN THE INTERESTS OF THE SERVICE THAT A RESERVE OFFICER SHALL SERVE IN A DIPLOMATIC OR CONSULAR CAPACITY, HE MAY RECOMMEND TO THE PRESIDENT THAT SUCH OFFICER BE COMMISSIONED AS A DIPLOMATIC OR CONSULAR OFFICER OR BOTH. THE PRESIDENT MAY, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, COMMISSION SUCH OFFICER AS A DIPLOMATIC OR CONSULAR OFFICER OR BOTH, AND ALL OFFICIAL ACTS OF SUCH AN OFFICER WHILE SERVING UNDER A DIPLOMATIC OR CONSULAR COMMISSION SHALL BE PERFORMED UNDER HIS COMMISSION AS A DIPLOMATIC OR CONSULAR OFFICER. IN ALL OTHER CASES, APPROPRIATE RANK AND STATUS, ANALOGOUS TO THAT OF FOREIGN SERVICE OFFICERS ENGAGED IN WORK OF COMPARABLE IMPORTANCE SHALL BE PROVIDED TO PERMIT RESERVE OFFICERS TO CARRY OUT THEIR DUTIES EFFECTIVELY.

SEC. 526. A RESERVE OFFICER SHALL, EXCEPT AS OTHERWISE PROVIDED IN REGULATIONS WHICH THE SECRETARY MAY PRESCRIBE, RECEIVE ALL THE ALLOWANCES, PRIVILEGES, AND BENEFITS WHICH FOREIGN SERVICE OFFICERS ARE ENTITLED TO RECEIVE IN ACCORDANCE WITH THE PROVISIONS OF TITLE IX.

ALSO, SECTION 414 (A) OF THE ACT, 60 STAT. 1003, PROVIDES THAT THERE SHALL BE SIX CLASSES OF FOREIGN SERVICE RESERVE OFFICERS, WHICH CLASSES SHALL CORRESPOND TO CLASSES 1 TO 6 OF FOREIGN SERVICE OFFICERS, AND THAT A RESERVE OFFICER SHALL RECEIVE SALARY AT ANY ONE OF THE RATES PROVIDED FOR THE CLASS TO WHICH HE IS APPOINTED OR ASSIGNED.

THUS, IT IS SEEN THAT THE AFORESAID LAW CONTEMPLATES THAT FOREIGN SERVICE RESERVE OFFICERS ARE TO BE APPOINTED OR ASSIGNED TO CLASSES CORRESPONDING TO THOSE SET UP FOR FOREIGN SERVICE OFFICERS AND ARE TO RECEIVE THE SALARY PROVIDED FOR SAID CLASSES; THAT THE RESERVE OFFICERS ARE TO BE PROVIDED WITH APPROPRIATE RANK AND STATUS ANALOGOUS TO THAT OF FOREIGN SERVICE OFFICERS ENGAGED IN WORK OF COMPARABLE IMPORTANCE AND THAT, EXCEPT AS OTHERWISE PROVIDED IN REGULATIONS PRESCRIBED BY THE SECRETARY OF STATE, THE RESERVE OFFICERS ARE TO RECEIVE ALL ALLOWANCES, PRIVILEGES AND BENEFITS WHICH FOREIGN SERVICE OFFICERS ARE ENTITLED TO RECEIVE. FURTHERMORE, PERTINENT TO THE MATTER, IT IS STATED IN HOUSE REPORT NO. 2508, 279TH CONGRESS ( REPORT OF THE COMMITTEE ON FOREIGN AFFAIRS, HOUSE OF REPRESENTATIVES, ACCOMPANYING H.R. 6967, WHICH, WHEN ENACTED, BECAME PUBLIC LAW 724), AT PAGE 6, AS FOLLOWS:

TO PROVIDE AN EFFICIENT AND FLEXIBLE MEANS OF GAINING THE TEMPORARY SERVICES OF SPECIALISTS IN ALL FIELDS, THE NEW BILL ESTABLISHES THE CATEGORY OF FOREIGN SERVICE RESERVE OFFICERS, WHO WILL BE CLOSELY ASSIMILATED TO FOREIGN SERVICE OFFICES IN SALARY, RANK, TITLE, AND STATUS (414, 523, 524). * * *

ACCORDINGLY, SINCE THE FOREIGN SERVICE RESERVE OFFICERS ARE TO BE APPOINTED OR ASSIGNED BY THE HEAD OF A DEPARTMENT AND ARE TO OCCUPY POSITIONS OF EQUAL RESPONSIBILITY AND IMPORTANCE AS ARE OCCUPIED BY FOREIGN SERVICE OFFICE--- THE LATTER OFFICERS BEING APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE--- AND AS SAID RESERVE OFFICERS APPARENTLY ARE TO BE INVESTED WITH AUTHORITY TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY, THEY SHOULD BE REQUIRED TO FILE THE AFFIDAVIT PRESCRIBED IN 5 U.S.C. 21A, AT THE TIME OF THEIR APPOINTMENT.

AS TO FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES, SECTION 401 (4) OF THE FOREIGN SERVICE ACT, 60 STAT. 1002, DEFINES SUCH PERSONS AS THOSE WHO ARE APPOINTED BY THE SECRETARY OF STATE UNDER AUTHORITY OF SECTION 531 THEREOF, 60 STAT. 1010, AND WHO SHALL OCCUPY POSITIONS WITH TECHNICAL, ADMINISTRATIVE, FISCAL, CLERICAL, OR CUSTODIAL RESPONSIBILITIES. SECTION 415 OF THE ACT, 60 STAT. 1003, SETS UP TWENTY-TWO CLASSES OF STAFF OFFICERS AND EMPLOYEES. A FURTHER EXPLANATION OF THE DUTIES OF THE PERSONNEL WHO ARE TO COMPRISE THE FOREIGN SERVICE STAFF IS FOUND IN HOUSE REPORT SUPRA, PAGE 6, AS FOLLOWS:

THE SECOND MAJOR ARM OF THE SERVICE WILL BE THE STAFF BRANCH, WHICH WILL INCLUDE THE PRESENT FISCAL AND ADMINISTRATIVE SERVICE, AUXILIARY PERSONNEL, AND THE AMERICANS IN THE MISCELLANEOUS EMPLOYEES GROUP (415). IT WILL THUS CONSIST OF ALL AMERICANS IN THE SERVICE WHO ARE NOT FOREIGN SERVICE OFFICERS OR RESERVE OFFICERS. THE SALARY RANGE WILL BE UP TO $10,000. AS IN THE CASE OF THE RESERVE OFFICERS, AN OFFICER OR EMPLOYEE OF THE STAFF BRANCH MAY BE TRANSFERRED TO THE FOREIGN SERVICE OFFICER BRANCH AFTER 4 YEARS (3 YEARS IF HE IS OVER 31) PROVIDED HE IS QUALIFIED AND PASSES AN EXAMINATION.

IN ITS UPPER AND MIDDLE RANKS THE STAFF BRANCH WILL COMPRISE CHIEFLY FUNCTIONAL AND ADMINISTRATIVE SPECIALISTS (FOR EXAMPLE, A PETROLEUM EXPERT OR THE CHIEF ADMINISTRATIVE OFFICER AT LONDON, OR A CIVIL AIR ATTACHE, OR THE DISBURSING OFFICER AT PARIS), AND LOWER DOWN THE JUNIOR ADMINISTRATIVE PERSONNEL, COURIERS, RADIO OPERATORS, CLERKS, COMMUNICATIONS PERSONNEL, COMMISSARY OFFICERS, DISPATCH AGENTS, CODE TECHNICIANS, ET CETERA.

APPOINTMENT TO THE STAFF BRANCH (531) WILL DEPEND PRIMARILY UPON TECHNICAL QUALIFICATIONS ALONG THE LINES OF THE CIVIL-SERVICE SYSTEM RATHER THAN THE SYSTEM PREVAILING FOR FOREIGN SERVICE OFFICERS. PROMOTION WILL BE MADE UPON A BASIS SIMILAR TO THAT EMPLOYED IN THE CIVIL SERVICE, WHICH IS TO SAY IT WILL DEPEND MORE UPON THE ACQUISITION OF ADDITIONAL TECHNICAL ABILITIES THAN UPON THE FACTORS GOVERNING THE PROMOTION OF FOREIGN SERVICE OFFICERS (641).

IT WILL BE SEEN FROM THE FOREGOING THAT THE OFFICERS AND EMPLOYEES COMPRISING THE FOREIGN SERVICE STAFF ARE TO OCCUPY POSITIONS OF VARIED DUTIES AND RESPONSIBILITIES. CONSEQUENTLY, IN THE ABSENCE OF A DETAILED SHOWING OF THE EXACT DUTIES TO BE PERFORMED BY EACH CLASS OF OFFICERS AND EMPLOYEES, IT IS NOT POSSIBLE TO RENDER A DECISION AS TO WHAT CLASSES ARE REQUIRED TO FILE THE AFFIDAVIT PROVIDED FOR IN 5 U.S.C. 21A. HOWEVER, IT MAY BE SAID GENERALLY THAT, IN THOSE CASES WHERE FOREIGN SERVICE STAFF OFFICERS OR EMPLOYEES BY VIRTUE OF THEIR APPOINTMENTS BY THE SECRETARY OF STATE ARE TO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND ON THEIR OWN RESPONSIBILITY WITHIN THE MEANING OF GENERAL REGULATIONS NO. 62, QUOTED ABOVE, THE AFFIDAVIT REQUIRED BY 5 U.S.C. 21A MUST BE FILED AT THE TIME OF APPOINTMENT OR BEFORE ANY SALARY PAYMENTS ARE MADE. ON THE OTHER HAND, THE AFFIDAVIT IS NOT REQUIRED OF OFFICERS OR EMPLOYEES OF THE FOREIGN SERVICE STAFF WHO ARE TO AID OR ASSIST IN THE PERFORMANCE OF THE DUTIES OF AN OFFICE THE TITLE TO WHICH IS VESTED IN ANOTHER. CF. 6 COMP. GEN. 657, 7ID. 447, 582. THE FIRST QUESTION PRESENTED IN YOUR LETTER IS ANSWERED ACCORDINGLY.

QUESTIONS 2,3 AND 4 OF YOUR LETTER ARE ANSWERED AS FOLLOWS: 2. ANY EMPLOYEE BECOMES SUBJECT TO THE SAID PROVISIONS IF AND WHEN COMMISSIONED AS A DIPLOMATIC OR CONSULAR OFFICER.

3. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, INASMUCH AS THE COMMISSIONING AS A DIPLOMATIC OR CONSULAR OFFICER CONSTITUTES A NEW APPOINTMENT. SEE 6 COMP. GEN. 726.

4. THIS QUESTION, ALSO, IS ANSWERED IN THE AFFIRMATIVE, SUCH PROMOTION CONSTITUTING A NEW APPOINTMENT. SEE 6 COMP. GEN. 726, SUPRA. ..END :