B-155536, FEB. 8, 1965

B-155536, FEB. 8, 1965

TO HONORABLE HAROLD F. LINDER, PRESIDENT AND CHAIRMAN, EXPORT-IMPORT BANK OF WASHINGTON:

REFERENCE IS MADE TO OUR DECISION OF NOVEMBER 24, 1965, B-155536, TO YOU, CONCERNING THE COMPUTATION OF SERVICE CREDIT AND SALARY RATES OF MRS. DIANA E. BARRY, AN EMPLOYEE OF YOUR AGENCY. THAT DECISION HELD THAT MRS. BARRY'S SERVICE WITH THE INTER-AMERICAN DEVELOPMENT COMMISSION DID NOT CONSTITUTE FEDERAL EMPLOYMENT FOR THE PURPOSE OF COMPUTING SALARY INCREASES, ETC.

MRS. BARRY HAS REQUESTED RECONSIDERATION OF OUR DECISION AND HAS FURNISHED ADDITIONAL EVIDENCE TO SUPPORT HER CONTENTION THAT THE SERVICE WITH THE INTER-AMERICAN DEVELOPMENT COMMISSION WAS FEDERAL SERVICE. ARE RENDERING OUR FURTHER DECISION TO YOU UPON THE ASSUMPTION THAT HAD SUCH INFORMATION BEEN FURNISHED TO YOU IT WOULD HAVE BEEN TRANSMITTED WITH A SIMILAR REQUEST FOR RECONSIDERATION.

THE RECORD SHOWS THAT ON AND PRIOR TO APRIL 6, 1943, MRS. BARRY WAS AN EMPLOYEE OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS. THAT DATE SHE RESIGNED FROM HER POSITION IN GRADE CAF-5, $2,000 PER ANNUM, AND WAS EMPLOYED BY THE INTER-AMERICAN DEVELOPMENT COMMISSION FROM APRIL 7, 1943, THROUGH FEBRUARY 15, 1946. AT THE TIME OF HER RESIGNATION FROM THE LATTER EMPLOYMENT HER SALARY WAS $2,980 PER ANNUM.

MRS. BARRY CONTENDS THAT HER RESIGNATION OF APRIL 6, 1943, WAS NOT A RESIGNATION BUT ONLY A FORMALITY WHICH THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS PERSONNEL OFFICE ADVISED WAS NECESSARY IN ORDER TO PROTECT HER ACCUMULATION OF SICK AND ANNUAL LEAVE. WE DO NOT UNDERSTAND THIS STATEMENT SINCE THERE IS A MEMORANDUM ON FILE DATED APRIL 6, 1943, FROM MRS. BARRY TO MR. BUSH WHICH READS AS FOLLOWS:

"IN VIEW OF THE ASSUMPTION BY THE UNITED STATES COMMISSION OF INTER AMERICAN DEVELOPMENT OF MY ACCUMULATED ANNUAL AND SICK LEAVE IN ACCORDANCE WITH THE ATTACHED RESOLUTION OF THE EXECUTIVE FINANCE COMMITTEE, I HEREBY AGREE TO FORFEIT MY RIGHTS TO SICK AND ANNUAL LEAVE INSOFAR AS THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS IS CONCERNED.'

THE ADVICE OF PERSONNEL ACTION DATED APRIL 26, 1943, WHICH MRS. BARRY FURNISHED SHOWS THAT SHE RESIGNED EFFECTIVE "APRIL 6, 1943 C.O.B., " FOR PERSONAL REASONS FROM THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS. ALSO, THE OTHER DOCUMENTS FURNISHED, FORM X, INTER-AMERICAN PERSONNEL BRANCH, OFFICE FOR EMERGENCY MANAGEMENT ACTION NO. 18073, AND NOTICE OF RESIGNATION, SIGNED BY MRS. BARRY, SHOW HER RESIGNATION TO BE EFFECTIVE APRIL 6, 1943.

THE APPOINTMENT OF MRS. BARRY AS AN EMPLOYEE OF THE COMMISSION OF INTER- AMERICAN DEVELOPMENT WAS EFFECTIVE 8:45 A.M., APRIL 7, 1943. THE APPOINTMENT PAPER ALSO STATES THAT:

"* * * ANY ANNUAL AND SICK LEAVE ACCRUED TO HER ON ACCOUNT OF HER EMPLOYMENT BY THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS IS HEREBY ASSUMED BY THE U.S. COMMISSION, AND THAT DURING HER EMPLOYMENT BY THE U.S. COMMISSION SHE SHALL BE ENTITLED TO THE PRIVILEGES AS TO ANNUAL LEAVE, SICK LEAVE AND OVERTIME COMPENSATION, SIMILAR TO THOSE OF U.S. GOVERNMENT EMPLOYEES.'

THE STATEMENTS FURNISHED BY MRS. BARRY FROM FORMER OFFICIALS OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS ARE TO THE EFFECT THAT EMPLOYEES WHO WERE ASSIGNED TO THE UNITED STATES COMMISSION OF INTER- AMERICAN DEVELOPMENT REMAINED EMPLOYEES OF THE UNITED STATES GOVERNMENT AND FOR ALL INTENTS AND PURPOSES THE COMMISSION WAS CONSIDERED A BRANCH OF THE U.S. GOVERNMENT. THE INTER-AMERICAN DEVELOPMENT COMMISSION WAS CREATED ON JANUARY 15, 1940, BY RESOLUTION OF THE INTER-AMERICAN FINANCIAL AND ECONOMIC ADVISORY COMMITTEE, AN INTERNATIONAL ORGANIZATION, AND WAS APPARENTLY FINANCED FROM FUNDS OF THAT ORGANIZATION. SEE DEPARTMENT OF STATE PAMPHLETS, ,INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES PARTICIPATES 1949," PAGE 318; ,PARTICIPATION OF THE UNITED STATES GOVERNMENT IN INTERNATIONAL CONFERENCES JULY 1, 1941-JUNE 30, 1945," PAGE 211; AND "UNITED STATES GOVERNMENT MANUAL" FALL 1942, PAGE 70. WE FIND NO APPROPRIATION MADE FOR THE INTER-AMERICAN DEVELOPMENT COMMISSION DURING THE YEARS IN QUESTION ALTHOUGH APPROPRIATIONS WERE MADE FOR CONTRIBUTION TO THE SUPPORT OF THE INTER-AMERICAN FINANCIAL AND ECONOMIC ADVISORY COMMITTEE. SEE THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1944, APPROVED DECEMBER 23, 1943, CHAPTER 380, 57 STAT. 611, 629; DEPARTMENT OF STATE APPROPRIATION ACT, 1946, APPROVED MAY 21, 1945, CHAPTER 129, 59 STAT. 169, 176. THERE APPEARS TO BE NO QUESTION, THEREFORE, THAT THE INTER-AMERICAN DEVELOPMENT COMMISSION WAS AN INTERNATIONAL ORGANIZATION AND NOT AN AGENCY OF THE FEDERAL GOVERNMENT.

IN THE AFFIDAVIT FROM MR. LESTER C. FRANK IT IS STATED IN PART THAT:

"THE RECORDS OF THE INTER-AMERICAN DEVELOPMENT COMMISSION WHICH ARE STORED IN THE PAN AMERICAN UNION INDICATE THAT MRS. DIANA E. BARRY WAS EMPLOYED BY SUCH COMMISSION FOR THE PERIOD APRIL 7, 1943 TO FEBRUARY 15, 1946.

"THE RECORDS FURTHER INDICATE THAT MRS. BARRY WAS AN EMPLOYEE ASSIGNED BY THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS TO WORK FOR THE COMMISSION AND WAS PAID FROM FUNDS MADE AVAILABLE TO SUCH COMMISSION BY THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS. * * *"

REPRESENTATIVES OF OUR OFFICE VISITED THE PAN AMERICAN UNION BUILDING TO INSPECT THE AVAILABLE RECORDS OF THE INTER-AMERICAN DEVELOPMENT COMMISSION. EVERYTHING IN THAT FILE SHOWS THAT MRS. BARRY RESIGNED FROM THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS EFFECTIVE APRIL 6, 1943, THERE BEING NO INDICATION THAT SHE WAS DETAILED OR STILL BEING CARRIED ON THE ROLLS OF THAT AGENCY DURING THE PERIOD IN QUESTION. IN THE FILE THERE IS A COPY OF AN APPLICATION MADE BY MRS. BARRY TO THE CIVIL SERVICE COMMISSION FOR REFUND OF RETIREMENT DEDUCTIONS. THERE IS ALSO A LETTER FROM MRS. BARRY TO MR. THEEMAN, DATED JUNE 11, 1943, SAYING THAT ON APRIL 7, 1943, SHE HAD MADE APPLICATION FOR REFUND OF RETIREMENT ON FORM 3005 OF THE UNITED STATES CIVIL SERVICE COMMISSION AND HAD RECEIVED NO REMITTANCE FOR THE AMOUNT DUE. SHE ASKED THAT MR. THEEMAN CHECK INTO THIS MATTER. PRESUMABLY, THE CLAIM FOR REFUND OF RETIREMENT DEDUCTIONS WAS PREDICATED ON THE FACT THAT MRS. BARRY HAD BEEN SEPARATED FROM SERVICE WITH THE UNITED STATES. WE INFORMALLY CONTACTED THE CIVIL SERVICE COMMISSION AND WERE ADVISED THAT THEIR RECORDS SHOW THAT ON APRIL 7, 1943, MRS. BARRY APPLIED FOR REFUND OF AMOUNTS TO HER CREDIT IN THE CIVIL SERVICE RETIREMENT FUND. REFUND WAS AUTHORIZED AUGUST 16, 1943. ON MAY 19, 1964, SHE FILLED IN A CIVIL SERVICE FORM TO MAKE A REDEPOSIT INTO THE CIVIL SERVICE RETIREMENT FUND. ON THAT FORM SHE SHOWED THAT FOR THE PERIOD APRIL 6, 1943 TO JULY 13, 1955, SHE WAS OUT OF THE FEDERAL SERVICE. ON JULY 13, 1955, SHE WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY, FORT MCPHERSON, GEORGIA.

BY LETTER OF JANUARY 12, 1964, MRS. BARRY SAYS THAT SUBSEQUENT TO APRIL 6, 1943, AND IN THE ABSENCE OF ANY PAPERS REHIRING HER, THE OCIAA FURTHER ASSIGNED HER TO WORK FOR THE MEXICAN-AMERICAN COMMISSION FOR ECONOMIC COOPERATION, A GOVERNMENT COMMISSION, AND THAT SUCH ASSIGNMENT IS INDICATIVE OF THE FACT THAT SHE REMAINED A BONA FIDE EMPLOYEE OF THE OCIAA SUBSEQUENT TO APRIL 6, 1943. THAT CONTENTION IS CORROBORATED BY A STATEMENT FROM MR. WILLIAM F. MACHOLD FORWARDED WITH HER LETTER OF JANUARY 12. WHILE MRS. BARRY MAY HAVE BEEN ASSIGNED TO THE SECOND COMMISSION FOR A PERIOD OF TIME THERE IS NOTHING IN THE OFFICIAL RECORDS TO INDICATE THAT SHE WAS SO ASSIGNED OR THAT THE ASSIGNMENT WAS MADE BY THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS OR THE INTER-AMERICAN DEVELOPMENT COMMISSION. IF THE ASSIGNMENT WAS MADE BY OCIAA, IT APPEARS TO US THAT IT WAS ERRONEOUS IF BASED ON THE ASSUMPTION THAT MRS. BARRY WAS STILL AN EMPLOYEE OF THAT AGENCY.

IT MAY BE THAT A NUMBER OF EMPLOYEES OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS WERE DETAILED TO WORK FOR THE INTER-AMERICAN DEVELOPMENT COMMISSION WHILE REMAINING ON THE ROLLS OF THE FORMER, HOWEVER, IT DOES NOT APPEAR THAT MRS. BARRY WAS ONE OF THEM. ON THE CONTRARY, THE OFFICIAL RECORDS SHOW THAT SHE SEVERED HER CONNECTION WITH THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS EFFECTIVE APRIL 6, 1943, THE DAY PRIOR TO HER ENTRY ON DUTY WITH THE COMMISSION.

THEREFORE, WE MUST AGAIN CONCLUDE THAT MRS. BARRY WAS NOT AN EMPLOYEE OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS BUT AN EMPLOYEE OF THE INTER-AMERICAN DEVELOPMENT COMMISSION, AN INTERNATIONAL ORGANIZATION, DURING THE PERIOD APRIL 7, 1943 TO FEBRUARY 15, 1946, AND THAT SUCH EMPLOYMENT MAY NOT BE CONSIDERED AS FEDERAL SERVICE IN COMPUTING HER SALARY INCREASES, HIGHEST PREVIOUS RATE, ETC. ..END :