B-18169, JULY 26, 1941, 21 COMP. GEN. 77

B-18169, JULY 26, 1941, 21 COMP. GEN. 77

RETIREMENT - FOREIGN SERVICE - EFFECT OF AMENDATORY ACT ON PRIOR ANNUITIES SINCE THE LEGAL EFFECT OF THE ACT OF MAY 13, 1941, WAS TO REPEAL THE PROVISIONS OF SECTION 26 (D) OF THE ACT OF APRIL 24, 1939, WITH RESPECT TO THE DEFERRED OR REDUCED ANNUITY OF FOREIGN SERVICE OFFICERS RETIRED BELOW THE AGE OF 60 YEARS, THERE IS NO AUTHORITY TO CONTINUE TO MAKE SUCH REDUCED OR DEFERRED ANNUITY PAYMENTS AFTER AUGUST 1, 1941, THE EFFECTIVE DATE OF THE 1941 ACT, BUT, AS THERE APPEARS TO HAVE BEEN NO INTENTION TO DEPRIVE THE OFFICERS OF RETIREMENT BENEFITS, THEIR ANNUITIES MAY BE COMPUTED FROM AUGUST 1, 1941, AND NOT RETROACTIVELY TO DATE OF RETIREMENT, UNDER AND IN ACCORDANCE WITH THE AMENDED SECTION 26 (D).

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JULY 26, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 21, 1941, AS FOLLOWS:

BY THE ACT APPROVED MAY 13, 1941 ( PUBLIC, NO. 69, 77TH CONG., CH. 115, ST SESS.), AMENDING THE ACT ENTITLED "AN ACT TO AMEND THE ACT ENTITLED "AN ACT FOR THE GRADING AND CLASSIFICATION OF CLERKS IN THE FOREIGN SERVICE OF THE UNITED STATES OF AMERICA, AND PROVIDING COMPENSATION THEREFOR," APPROVED FEBRUARY 23, 1931, AS AMENDED" CERTAIN CHANGES IN THE REQUIREMENTS FOR FOREIGN SERVICE RETIREMENT ARE MADE IN SECTION 26 (D) OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED BY THE ACT OF APRIL 24, 1939. TWO COPIES OF THE ACT OF MAY 13, 1941, WHICH BECOMES OPERATIVE ON AUGUST 1, 1941, ARE ENCLOSED.

IN SECTION 26 (D) OF THE ACT OF APRIL 24, 1939 (53 STAT. 585) IT IS PROVIDED, IN PART, THAT AN OFFICER BELOW THE AGE OF 60 YEARS WHO HAS RENDERED AT LEAST 30 YEARS OF ACTUAL SERVICE, EXCLUSIVE OF EXTRA CREDIT FOR SERVICE AT UNHEALTHFUL POSTS AS PROVIDED IN PARAGRAPH (K), MAY BE RETIRED AT HIS OWN REQUEST AND ELECT TO RECEIVE EITHER

(1) A DEFERRED ANNUITY BEGINNING AT AGE 60, OR

(2) AN IMMEDIATE ANNUITY COMPUTED AS PRESCRIBED UNDER PARAGRAPH (E),

REDUCED BY ONE-FOURTH OF 1 PERCENTUM OF SUCH ANNUITY FOR EACH

MONTH OR MAJOR FRACTION THEREOF, BETWEEN THE DATE OF HIS RETIREMENT

AND THE SIXTIETH ANNIVERSARY OF HIS DATE OF BIRTH.

IN DECISION NO. B-3435 OF MAY 12, 1939 (18 COMP. GEN. 845) IT WAS HELD THAT WHEN AN OFFICER RETIRING BELOW AGE 60 ELECTS TO RECEIVE AN IMMEDIATE ANNUITY, REDUCED AS PROVIDED, SUCH OFFICER UPON ATTAINMENT OF HIS SIXTIETH BIRTHDAY SHALL CONTINUE TO RECEIVE THE REDUCED ANNUITY AND SHALL NOT BE ENTITLED THEREAFTER TO THE FULL ANNUITY TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE ORIGINALLY ELECTED A DEFERRED ANNUITY AT AGE 60.

THERE ARE CERTAIN FOREIGN SERVICE OFFICERS WHO HAVE RETIRED UNDER THIS PROVISO OF THE LAW, THAT IS, BELOW THE AGE OF 60 YEARS WITH 30 YEARS OF ACTUAL SERVICE AND WHO HAVE ELECTED TO RECEIVE IMMEDIATE ANNUITIES REDUCED AS PRESCRIBED IN SECTION 26 (D) OF THE ACT OF APRIL 24, 1939.

THE ACT APPROVED MAY 13, 1941, AMENDS SECTION 26 (D) BY REDUCING THE MINIMUM RETIREMENT AGE, UNDER CERTAIN CONDITIONS, TO 50 YEARS OF AGE AND PROVIDES IN PART THAT

"* * * ANY FOREIGN SERVICE OFFICER WHO HAS REACHED THE AGE OF 50 YEARS AND RENDERED AT LEAST 30 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; * * *.' THE ACT OF MAY 13, 1941, THUS IN EFFECT ABOLISHES THE PROVISO OF SECTION 26 (D) REQUIRING AN OFFICER WHO RETIRES ON THE BASIS OF 30 YEARS OF SERVICE BELOW AGE 60 TO CHOOSE BETWEEN A DEFERRED AND AN IMMEDIATE REDUCED ANNUITY.

THE QUESTION FOR DETERMINATION IS WHETHER THE ANNUITIES OF THE FOREIGN SERVICE OFFICERS WHO RETIRED BELOW AGE 60 AND ELECTED TO RECEIVE IMMEDIATE REDUCED ANNUITIES SHALL BE RECALCULATED IN ACCORDANCE WITH THE PRINCIPLES SET FORTH IN PARAGRAPH (D) OF THE ACT OF MAY 13, 1941. IF THE RULING IS AFFIRMATIVE WILL THE REVISED ANNUITIES BE RETROACTIVE TO THE DATE OF RETIREMENT OR WILL THEY BE CONSIDERED EFFECTIVE FROM AUGUST 1, 1941, THE EFFECTIVE DATE OF THE ACT OF MAY 13, 1941?

AN EARLY RESPONSE WILL BE APPRECIATED.

SINCE THE ACT OF MAY 13, 1941, PUBLIC NO. 69, 77TH CONGRESS, 55 STAT. 189, AMENDED AND REENACTED SECTION 26 (D) OF THE "ACT FOR THE GRADING AND CLASSIFICATION OF CLERKS IN THE FOREIGN SERVICE OF THE UNITED STATES OF AMERICA, AND PROVIDING COMPENSATION THEREFOR," APPROVED FEBRUARY 23, 1931, AS AMENDED APRIL 24, 1939, 53 STAT. 585, THE LEGAL EFFECT THEREOF APPEARS TO HAVE BEEN, IN PART, TO REPEAL THE PRIOR INCONSISTENT PROVISIONS WITH RESPECT TO THE DEFERRED ANNUITY OR REDUCED ANNUITY OF "ANY OFFICER BELOW THE AGE OF 60 YEARS WHO HAS RENDERED AT LEAST 30 YEARS OF ACTUAL SERVICE, EXCLUSIVE OF EXTRA SERVICE CREDITS.' IN THAT VIEW THERE WOULD BE NO AUTHORITY TO CONTINUE TO MAKE SUCH REDUCED OR DEFERRED ANNUITY PAYMENTS AFTER THE EFFECTIVE DATE OF THE ACT OF MAY 13, 1941. HOWEVER, THERE APPEARS TO HAVE BEEN NO INTENTION ON THE PART OF CONGRESS TO WITHDRAW RETIREMENT BENEFITS FROM THOSE FOREIGN SERVICE OFFICERS AND, CONSEQUENTLY, IT REASONABLY MAY BE PRESUMED THAT THE INTENTION WAS TO EXTEND THE PRINCIPLES OF THE AMENDED SECTION 26 (D) TO THOSE OFFICERS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE ACT OF MAY 13, 1941, SPECIFICALLY STATES THAT IT IS TO TAKE EFFECT "ON THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE EXPIRATION OF SIXTY DAYS FROM THE DATE OF ITS APPROVAL BY THE PRESIDENT," WHICH IS AUGUST 1, 1941. ACCORDINGLY, THE REVISED ANNUITIES ARE TO BE CONSIDERED AS EFFECTIVE FROM THAT DATE, THERE BEING NOTHING CONTAINED IN THE SAID ACT INDICATING AN INTENTION THAT SUCH ANNUITIES BE COMPUTED RETROACTIVELY EFFECTIVE.