B-87468, MAR. 27, 1958

B-87468, MAR. 27, 1958

TO MRS. VIOLET R. ALLEN, AUTHORIZED CERTIFYING OFFICER, OFFICE OF FINANCE, DEPARTMENT OF STATE:

YOUR LETTER OF DECEMBER 19, 1957, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF PAUL S. GUINN, FOR $6,814.63, REPRESENTING THE UNREFUNDED CREDIT (CONTRIBUTIONS PLUS INTEREST) OF MR. GUINN IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND.

THE PERTINENT FACTS DISCLOSED BY YOUR LETTER ARE AS FOLLOWS: MR. GUINN, AFTER HAVING SERVED IN SEVERAL POSITIONS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT WAS TRANSFERRED ON JULY 1, 1939, TO A POSITION UNDER THE FOREIGN SERVICE. AT THE TIME OF SUCH TRANSFER THE AMOUNT TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT FUND WAS REFUNDED TO HIM AND, SUBSEQUENTLY, HE PURCHASED CREDIT FOR FOREIGN SERVICE RETIREMENT PURPOSES, FOR THE PERIOD JULY 1, 1924 (THE DATE DEDUCTIONS WERE FIRST REQUIRED TO BE MADE TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND), TO JUNE 30, 1939. MR. GUINN REMAINED IN THE FOREIGN SERVICE UNTIL SEPTEMBER 30, 1948, WHEN HE VOLUNTARILY RETIRED UNDER SECTION 636 OF THE FOREIGN SERVICE ACT, 60 STAT. 1016, 22 U.S.C. 1006.

EFFECTIVE FEBRUARY 3, 1949, HIS FOREIGN SERVICE RETIREMENT ANNUITY WAS SUSPENDED BECAUSE HE ACCEPTED A POSITION WITH THE ECONOMIC COOPERATION ADMINISTRATION ON FEBRUARY 4 OF THAT YEAR. THEREAFTER, HE CONTINUED TO BE EMPLOYED IN POSITIONS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT THROUGH FEBRUARY 28, 1957. ON FEBRUARY 28, 1956, MR. GUINN DEPOSITED $7,553 TO THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND TO PURCHASE CREDIT FOR SERVICE FROM AUGUST 1, 1920, TO SEPTEMBER 30, 1948, AND, BY LETTER OF OCTOBER 17, 1955, TO THE SECRETARY OF STATE, HE EXECUTED A WAIVER OF ALL BENEFITS UNDER THE FOREIGN SERVICE RETIREMENT SYSTEM CONDITIONED UPON THE CIVIL SERVICE COMMISSION'S ACCEPTANCE OF HIS APPLICATION FOR RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT SYSTEM. THE CIVIL SERVICE COMMISSION ACCEPTED HIS APPLICATION AND HE WAS RETIRED ON MARCH 1, 1957, AND PRESENTLY IS AN ANNUITANT UNDER THE CIVIL SERVICE RETIREMENT SYSTEM.

MR. GUINN'S CONTRIBUTIONS TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND PLUS INTEREST THROUGH SEPTEMBER 30, 1948, THE DATE OF HIS RETIREMENT FROM THE FOREIGN SERVICE, REPORTEDLY TOTALED $7,681.16. RECEIVED ANNUITIES FROM SUCH FUND PRIOR TO HIS EMPLOYMENT WITH THE ECONOMIC COOPERATION ADMINISTRATION TOTALING $866.53. THE DIFFERENCE, $6,814.63, IS THE AMOUNT CLAIMED ON THE VOUCHER IN QUESTION.

WHILE THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, AS AMENDED, CONTAINS NO EXPRESS PROVISION FOR REFUND OF CONTRIBUTIONS PLUS INTEREST WHEN A RETIRED FOREIGN SERVICE OFFICER WAIVES HIS RIGHT TO A FOREIGN SERVICE RETIREMENT ANNUITY FOR THE PURPOSE OF OBTAINING CREDIT UNDER ANOTHER RETIREMENT SYSTEM FOR THE PERIOD OF TIME UPON WHICH SUCH FOREIGN SERVICE RETIREMENT ANNUITY WAS BASED, WE ARE OF THE OPINION THAT A REFUND IN SUCH A CASE WOULD BE IN ACCORDANCE WITH THE SPIRIT, IF NOT THE LETTER, OF THE FOREIGN SERVICE ACT. AS YOU INDICATE IN YOUR LETTER, SECTIONS 634 (A) (2), 832, AND 841 OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 1004; ID. 1082; ID. 1086, RESPECTIVELY, STRONGLY INDICATE A CONGRESSIONAL INTENT THAT A FOREIGN SERVICE OFFICER SHOULD RECEIVE FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND AN AMOUNT AT LEAST EQUAL TO HIS CONTRIBUTIONS TO THAT FUND PLUS INTEREST EXCEPT WHEN HE IS SEPARATED FOR UNSATISFACTORY PERFORMANCE UNDER SECTION 637 OF THE ACT (22 U.S.C. 1007) OR FOR MISCONDUCT OR MALFEASANCE UNDER SECTION 638 OF THE ACT (22 U.S.C. 1008), IN WHICH EVENT HE COULD RECEIVE A REFUND OF CONTRIBUTIONS WITHOUT INTEREST. CF. THE CONCLUSION REACHED IN OUR DECISION OF NOVEMBER 5, 1953, B 117039, 33 COMP. GEN. 205, CITED IN YOUR LETTER. THEREFORE, WE CONCLUDE THAT A REFUND TO MR. GUINN UNDER THE CIRCUMSTANCES RELATED WOULD BE CONSISTENT WITH THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.