B-117039, NOVEMBER 5, 1953, 33 COMP. GEN. 205

B-117039, NOVEMBER 5, 1953, 33 COMP. GEN. 205

RETIREMENT - FOREIGN SERVICE - ANNUITY OR FEDERAL EMPLOYEES' COMPENSATION ACT BENEFITS WHILE THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, REQUIRES AN ELECTION BETWEEN COMPENSATION BENEFITS THEREUNDER AND "OTHER PAYMENTS OR BENEFITS" BY REASON OF THE DEATH OF AN EMPLOYEE, THE REFUND OF CONTRIBUTIONS MADE TO THE FOREIGN SERVICE RETIREMENT FUND DOES NOT CONSTITUTE PAYMENT OF A "BENEFIT" WITHIN THE CONTEMPLATION OF THE ACT, AND THEREFORE THE WIDOW OF A FOREIGN SERVICE OFFICER WHO ELECTS TO RECEIVE COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, IN LIEU OF AN ANNUITY UNDER THE FOREIGN SERVICE ACT MAY BE PAID CONTRIBUTIONS MADE BY DECEASED HUSBAND TO THE FOREIGN SERVICE RETIREMENT FUND.

ACTING COMPTROLLER GENERAL WEITZEL TO VIOLET R. ALLEN, DEPARTMENT OF STATE, NOVEMBER 5, 1953:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1953, OF/P-JAG, REQUESTING A DECISION AS TO WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT A VOUCHER THEREWITH TRANSMITTED, IN FAVOR OF MRS. MARIQUITA ATCHESON, WIDOW OF FOREIGN SERVICE OFFICER GEORGE ATCHESON, JR., COVERING REFUND OF THE BALANCE NOW REMAINING OF THE CONTRIBUTIONS MADE BY THE DECEASED EMPLOYEE TO THE FOREIGN SERVICE RETIREMENT FUND.

YOUR LETTER STATES IN PART:

MRS. MARIQUITA ATCHESON RECEIVED ANNUITY PAYMENTS FROM AUGUST 17, 1948 TO APRIL 30, 1951 PURSUANT TO SECTION 832 OF THE FOREIGN SERVICE ACT, FOLLOWING THE DEATH OF HER HUSBAND. SUBSEQUENTLY, SHE ELECTED TO RECEIVE COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED (5 U.S.C. 751 ET SEQ.) IN LIEU OF AN ANNUITY UNDER SECTION 832 OF THE FOREIGN SERVICE ACT. AN ELECTION IS REQUIRED UNDER THE FEDERAL EMPLOYEE'S COMPENSATION ACT (5 U.S.C. 757) AS A CONDITION PREREQUISITE TO ELIGIBILITY FOR BENEFITS THEREUNDER. MRS. ATCHESON CONTENDED INITIALLY THAT SHE WAS ENTITLED TO BENEFITS FROM BOTH SYSTEMS, CONCURRENTLY, AND HERE ELECTION (COPY OF WHICH IS ATTACHED) MADE PURSUANT TO 5 U.S.C. 757 WAS PHRASED WITH THIS IN MIND. SHE NOW HAS ABANDONED THAT CONTENTION AND MERELY REQUESTS A REFUND OF ACCUMULATED CONTRIBUTIONS OVER ANNUITY PAYMENTS. * * *

YOU HAVE ADVISED THIS OFFICE INFORMALLY THAT THE TOTAL AMOUNT OF CONTRIBUTIONS AND INTEREST TO THE DECEASED EMPLOYEE'S CREDIT IN THE RETIREMENT FUND IS $10,020.53, AND THAT HIS WIDOW RECEIVED ANNUITY PAYMENTS TOTALING $3,109.26 FROM THE FUND FOR THE PERIOD AUGUST 17, 1948, THROUGH OCTOBER 31, 1949. THE WIDOW RECEIVED ADDITIONAL PAYMENTS FROM THE FUND TOTALING $3,868.74 FOR THE PERIOD NOVEMBER 1, 1949, THROUGH APRIL 30, 1951, BUT THE FUND WAS REIMBURSED IN THAT AMOUNT BY THE BUREAU OF EMPLOYEES' COMPENSATION, WHICH IN TURN DEDUCTED SUCH AMOUNT FROM ITS COMPENSATION AWARD TO THE WIDOW. SINCE, IN EFFECT, THE WIDOW HAS REFUNDED THE $3,868.74 COVERING THE PERIOD NOVEMBER 1949 THROUGH APRIL 1951, THERE REMAINS IN HERE DECEASED HUSBAND'S FOREIGN SERVICE RETIREMENT FUND ACCOUNT THE SUM OF $6,911.27 AND THE SUBMITTED VOUCHER IS STATED IN THAT AMOUNT.

THERE IS NO EXPRESS PROVISION IN THE FOREIGN SERVICER ACT OF 1946, THAT AUTHORIZES A REFUND OF RETIREMENT DEDUCTION IN A CASE LIKE THIS. HOWEVER, SECTIONS 832 AND 841 OF THE ACT, 22 U.S.C. 1082, AND 1086, WHILE NOT PRECISELY APPLICABLE HERE, ARE, AS YOU STATE, INDICATIVE OF AN INTENT ON THE PART OF THE CONGRESS THAT THERE SHOULD BE RETURNED TO EACH CONTRIBUTOR OR HIS REPRESENTATIVE, BY ANNUITY PAYMENTS OR REFUND, AT LEAST THE AMOUNT CONTRIBUTED BY HIM TO THE RETIREMENT FUND. THERE IS FOR CONSIDERATION HERE, ALSO, THE FOLLOWING PROVISION OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS CONTAINED IN SECTION 7, AS AMENDED, 5 U.S.C. 757 (A):

THAT WHENEVER ANY PERSON IS ENTITLED TO RECEIVE ANY BENEFITS UNDER SECTIONS 751-756, 757-791, AND 793 OF THIS TITLE BY REASON OF HIS INJURY, OR BY REASON OF THE DEATH OF AN EMPLOYEE, AS DEFINED IN SECTION 790 OF THIS TITLE, AND IS ALSO ENTITLED TO RECEIVE FROM THE UNITED STATES ANY PAYMENTS OR BENEFITS (OTHER THAN THE PROCEEDS OF ANY INSURANCE POLICY), BY REASON OF SUCH INJURY OR DEATH UNDER ANY OTHER ACT OF CONGRESS, BECAUSE OF SERVICE BY HIM (OR IN THE CASE OF DEATH, BY THE DECEASED) AS AN EMPLOYEE, AS SO DEFINED, SUCH PERSON SHALL ELECT WHICH BENEFITS HE SHALL RECEIVE.

ALTHOUGH THE PROVISION JUST QUOTED REQUIRES AN ELECTION BETWEEN COMPENSATION BENEFITS AND OTHER ,PAYMENTS OR BENEFITS" BY REASON OF THE DEATH OF AN EMPLOYEE, IT IS NOT BELIEVED THAT THE REFUND OF CONTRIBUTIONS PROPOSED TO BE MADE IN THE PRESENT CASE CONSTITUTES A "PAYMENT OR BENEFIT" IN THE SENSE IN WHICH THAT TERM IS USED IN THE STATUTE. CF. 17 COMP. GEN. 644. HOWEVER, IT SHOULD BE NOTED THAT A MATERIALLY DIFFERENT SITUATION WOULD EXIST WERE IT PROPOSED TO CONTINUE ANNUITY PAYMENTS INSTEAD OF TO REFUND CONTRIBUTIONS. THIS IS SO BECAUSE FREQUENTLY THE TOTAL AMOUNT RECEIVED IN ANNUITY PAYMENTS WILL EXCEED THE TOTAL AMOUNT CONTRIBUTED, IN WHICH CASE "BENEFITS" WOULD BE RECEIVED IN CONTEMPLATION OF THE STATUTE.

THEREFORE, INASMUCH AS THE REFUND OF CONTRIBUTIONS MADE TO THE RETIREMENT FUND DOES NOT APPEAR TO CONSTITUTE PAYMENT OF A "BENEFIT" WITHIN THE CONTEMPLATION OF 5 U.S.C. 757, AND AS NO PROVISION OTHERWISE APPEARS PROHIBITING SUCH REFUND UNDER THE FACTS AND CIRCUMSTANCES HERE RELATED, THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.