ability annuitant in the class in which he was serving at time of retirement, or the Secretary may, taking into consideration the age, qualifications, and experience of such annuitant, and the present class of his contemporaries in the Service, appoint him or in the case of an annuitant who is a former Foreign Service officer, recommend that the President appoint him, by and with the advice and consent of the Senate, to a class higher than the one in which he was serving prior to retirement. Payment of the annuity shall continue until a date six months after the date of the examination showing recovery or until the date of reinstatement or reappointment in the Service, whichever is earlier. Fees for examinations under this provision, together with reasonable traveling and other expenses incurred in order to submit to examination, shall be paid out of the Fund. If the annuitant fails to submit to examination as required under this section, payment of the annuity shall be suspended until continuance of the disability is satisfactorily established.

(c) 152 If a recovered disability annuitant whose annuity is discontinued is for any reason not reinstated or reappointed in the Service, he shall be considered to have been separated within the meaning of section 834 as of the date he was retired for disability and he shall, after the discontinuance of the disability annuity, be entitled to the benefit of that section or of section 841 154 except that he may elect voluntary retirement in accordance with the provisions of section 636 if he can qualify under its provisions.

(d) 155 No participant shall be entitled to receive an annuity under this Act and compensation for injury or disability to himself or herself under subchapter I of chapter 81, title 5, United States Code, covering the same period of time except that a participant may simultaneously receive both an annuity under this section and scheduled disability payments under section 8107 of title 5, United States Code. This provision shall not bar the right of any claimant to the greater benefit conferred by either this Act or such subchapter for any part of the same period of time. Neither this provision nor any provision of such subchapter shall be so construed as to deny the right of any participant to receive an annuity under this Act and to receive concurrently any payment under such subchapter by reason of the death of any other person.

(e) 156 Notwithstanding any provision of law to the contrary, the right of any person entitled to an annuity under this Act shall not be affected because such person has received an award of compensation in a lump sum under section 8135 of title 5, United States Code 157 except that where such annuity is payable on account of the same disability for which compensation under such section has been paid, so much of such compensation as has been paid for any period extended beyond the date such annuity becomes effective, as determined by the Secretary of Labor, shall be refunded to the Department of

154 Sec. 507 (2) of the Foreign Relations Authorization Act, Fiscal Year 1977 struck out "(a)" which formerly appeared at this point. 155 Subsection (d), which was originally added by Public Law 86-723, was amended and restated by Sec. 507 (a) of the Foreign Relations Authorization Act, Fiscal Year

1977.

158 Added by Public Law 86-723 (74 Stat. 841; 22 U.S.C. 1081)

157 Sec. 507 (4) of the Foreign Relations Authorization Act, Fiscal year 1977 substituted the words "section 8133 of title 5, United States Code" in lieu of "section 14 of the Act September 16, 1916, as amended".

Labor, to be paid into the Federal Employees' Compensation Fund. Before such person shall receive such annuity he shall (1) refund to the Department of Labor the amount representing such computed payments for such extended period, or (2) authorize the deduction of such amount from the annuity payable to him under this Act, which amount shall be transmitted to such Department for reimbursement to such Fund. Deductions from such annuity may be made from accrued and accruing payments, or may be prorated against and paid from accruing payments in such manner as the Secretary of Labor shall determine, whenever he finds that the financial circumstances of the annuitant are such as to warrant such deferred refunding.

DEATH IN SERVICE

SEC. 832. (a) 158 If a participant dies and no claim for annuity is payable under the provisions of this Act, the lump-sum credit shall be paid in accordance with section 841.

(b) If a participant who has at least eighteen months of civilian service credit toward retirement under the system dies before separation or retirement from the Service and is survived by a spouse, such surviving spouse shall be entitled to an annuity equal to 55 per centum of the annuity computed in accordance with the provisions of subsection (e) of this section and of section 821 (a) and if the participant had less than three years creditable civilian service at the time of death, the survivor annuity shall be computed on the basis of the average salary for the entire period of such service.

(c) If a participant who has at least eighteen months of civilian service credit toward retirement under the system dies before separation or retirement from the Service and is survived by a wife or a husband and a child or children, each surviving child shall be entitled to an annuity computed in accordance with subsections (c) (1) and (d) of section 821.

(d) If a participant who has at least eighteen months of civilian service credit toward retirement under the system dies before separation or retirement from the Service and is not survived by a wife or husband, but by a child or children, each surviving child shall be entitled to an annuity computed in accordance with subsections (c) (2) and (d) of section 821.

(e) If, at the time of his or her death, the participant had less than twenty years of service credit toward retirement under the System, the annuities payable in accordance with paragraph (b) of this section shall be computed in accordance with the provisions of section 821 on the assumption he or she has had twenty years of service, but the additional service credit that may accrue to a deceased participant

158 As amended and restated by Public Law 86-723 (74 Stat. 842; 22 U.S.C. 1082). Section 203 (a) of Public Law 91-201 (84 Stat. 18, 22 U.S.C. 1082 (b)) further amended Section 832(b) providing that "eighteen months" be inserted in lieu of "five years"; and further providing that "by inserting immediately before the semicolon following 'section 821(a)' the following: 'and if the participant had less than three years creditable civilian service at the time of death, the survivor annuity shall be computed on the basis of the average salary for the entire period of such service'"; further providing under Section 203(b), that subsections (c) and (d) of section 832 be each amended by striking out "five years" and inserting in lieu thereof "eighteen months". This amendment became effective October 20, 1969. Subsections (a), (b), (c), and (d) were further amended and restated by Sec. 508 (a) of the Foreign Relations Authorization Act, Fiscal Year 1977.

under this provision shall in no case exceed the difference between his or her age on the date of death and the mandatory retirement age applicable to his or her class in the Service. In all cases arising under paragraphs (b), (c), (d), or (e) of this section, it shall be assumed that the deceased participant was qualified for retirement on the date of his death.

(f) 15 159 If an annuitant who elected a reduced annuity dies in service after being recalled under section 520 (b) and is survived by a spouse entitled to a survivor annuity based on such an election, such survivor annuity shall be computed as if the recall service had otherwise terminated on the day of death and the deceased's annuity had been resumed in accordance with section 871. If such a death occurs after the annuitant had completed sufficient recall service to attain eligibility for a supplemental annuity, a surviving spouse, in addition to any other benefits, shall be entitled to elect, in lieu of a refund of retirement contributions made during the recall service, a supplemental survivor annuity computed and paid under section 821 (i) as if the recall service had otherwise terminated.160 If the annuitant had completed sufficient recall service to attain eligibility to have his or her annuity determined anew, a surviving spouse may elect, in lieu of any other benefit under this title, to have the annuitant's rights redetermined and to receive a survivor annuity computed under subsection (b) of this section on the basis of the annuitant's total service.

(g) 159 Annuities that become payable under this section shall commence, terminate, and be resumed in accordance with subsection (b) (2), (e), or (h) of section 821, as appropriate.

SEC. 833 *** [Repealed-1976] 101

SEC. 834.163 Any participant who voluntarily separates from the Service after obtaining at least five years of service credit toward re

150 Subsections (f) and (g) were added by Sec. 508 (b) of the Foreign Relations Authorization Act, Fiscal Year 1977.

100 Sec. 524(g) of the Foreign Relations Authorization Act, Fiscal Year 1977 provides that the restrictions on payment of survivor annuities contained in Subsection (b) (2) (A) and Subsection (h) of Sec. 821 shall not apply to a supplemental survivor annuity as provided under this Subsection if the restrictions do not apply to a basic survivor annuity elected prior to commencement of the recall service.

NOTE: Section 206 (b) and (d) of Public Law 91-201 (84 Stat. 20) provide that—

(b) Any lump sum payment of contributions and interest made pursuant to section 832(a) of such Act because of the death of a participant shall be repaid to the Fund, or arrangements satisfactory to the Secretary of State made for such repayment, before any annuity authorized by the amendments made by section 203 shall be paid to any survivor of such participant.

"(d) The annuity of each child entitled to receive an annuity under sections 821 (c) and 832 (c) and (d) of such Act, as amended by this Act, shall be recomputed, effective as of November 1, 1969, in accordance with section 821 of such Act as amended by this Act. No increase allowed and in force prior to November 1, 1969, shall be included in the recomputation of any such annuity, and this subsection shall not operate to reduce any annuity."

181 Sec. 833, which related to retirement of persons who are participants under section 803 (a)(3) of this Act, was repealed by Sec. 516 of the Foreign Relations Authorization Act, Fiscal Year 1977.

182 As added by Public Law 86–723.

183 Sec. 509 of the Foreign Relations Authorization Act, Fiscal Year 1977 amended Sec. 834 by striking out "(a)" immediately following "Sec. 834" and by eliminating Subsection (b). Subsection (b) formerly read as follows:

"(b) If a participant who has qualified in accordance with the provisions of paragraph (a) of this section to receive a deferred annuity commencing at the age of sixty dies before reaching the age of sixty his contributions to the Fund, with interest, shall be paid in accordance with the provisions of sections 841 and 881."

tirement, under the System, excluding military or naval service 164 may, upon separation from the Service or at any time prior to becoming eligible for an annuity, elect to have his contributions to the Fund returned to him in accordance with the provisions of section 841, or to leave his contributions in the Fund and receive an annuity, computed as prescribed in section 821, commencing at the age of sixty years.

PART E-LUMP-SUM PAYMENTS 165

SEC. 841. (a) 166 "Lump-sum credit" as used in this title means the compulsory and special contributions to a participant's or former participant's credit in the Fund plus interest thereon compounded at 4 per centum per annum to the date of separation or December 31, 1976, whichever is earlier, and after such date for a participant who separates from the Service after completing at least one year of civilian service and before completing five years of such service, at the rate of 3 per centum per annum to the date of separation. Interest shall not be paid for a fractional part of a month in the total service or on compulsory and special contributions from an annuitant for recall service or other service performed after the date of separation which forms the basis for annuity.

(b) Whenever a participant becomes separated from the Service without becoming eligible for an annuity or a deferred annuity in accordance with the provisions of this Act, the lump-sum credit shall be paid to the participant.

(c) Whenever an annuitant becomes separated from the Service following a period of recall service without becoming eligible for a supplemental or recomputed annuity under section 871, the annuitant's compulsory contributions to the Fund for such service together with any special contributions the annuitant may have made for other service performed after the date of separation from the Service which forms the basis for annuity, shall be returned.

(d) If all annuity rights under this title based on the service of a deceased participant or annuitant terminate before the total annuity paid equals the lump-sum credit, the difference shall be paid in the order of precedence shown in subsection (g) of this section.

(e) If a participant or former participant dies and is not survived by a person eligible for an annuity under this title or by such a person or persons all of whose annuity rights terminate before a claim for survivor annuity is filed, the lump-sum credit shall be paid in accordance with subsection (g) of this section.

(f) If an annuitant who was a former participant dies, annuity accrued and unpaid, shall be paid in accordance with subsection (g) of this section.

(g) Payments authorized in subsections (d) through (f) of this section shall be paid in the following order of precedence to such person or persons surviving the participant and alive on the date en

164 Sec. 509 of the Foreign Relations Anthorization Act, Fiscal Year 1977 struck out the words "that is credited in accordance with the provisions of section 851 or 852 (a) (2)" which formerly appeared at this point. 185 As amended and restated by Public Law 86-723; further amended and restated by Sec. 510 of the Foreign Relations Authorization Act, Fiscal Year 1977 (Public Law 94350).

168 Sec. 524 (1) of the Foreign Relations Authorization Act. Fiscal Year 1977 provides that Subsection (a) shall not apply to participants separated from the Foreign Service prior to October 1, 1976 nor to their survivors. Payments from the Foreign Service Retrement Fund that become due on or after October 1, 1976 shall be paid in the order of precedence specified in Subsection (g) irrespective of the date of separation.

titlement to the payment arises, upon the establishment of a valid claim therefor, and such payment shall be a bar to recovery by any other

person:

(1) to the beneficiary or beneficiaries last designated by the participant before or after retirement in a signed and witnessed writing received by the Secretary prior to the participant's death, for which purpose a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed shall have no force or effect;

(2) if there be no such beneficiary, to the surviving wife or husband of such participant;

(3) if none of the above, to the child or children of such participant (including adopted and natural children but not stepchildren) and descendants of deceased children by representation; (4) if none of the above, to the parents of such participant or the survivor of them;

(5) if none of the above, to the duly appointed executor or administrator of the estate of such participant; and

(6) if none of the above, to other next of kin of such participant as may be determined in the judgment of the Secretary to be legally entitled thereto, except that no payment shall be made pursuant to this paragraph (6) until after the expiration of thirty days from the death of the participant or annuitant. (h) Annuity accrued and unpaid on the death of a survivor annuitant shall be paid in the following order of precedence, and the payment bars recovery by any other person: First, to the duly appointed executor or administrator of the estate of the survivor annuitant; second, if there is no such executor or administrator, payment may be made, after the expiration of thirty days from the date of death of such survivor annuitant, to such person as may be determined by the Secretary to be entitled under the laws of the survivor annuitant's domicile at the time of death.

(i) Amounts deducted and withheld from basic salary of a participant under section 811 from the beginning of the first pay period after the participant has completed thirty-five years of service computed under sections 851 and 853, but excluding service credit for unused sick leave under subsection (b) of section 851, together with interest on the amounts at the rate of 3 per centum a year compounded annually from the date of the deduction to the date of retirement or death, shall be applied toward any special contribution due under subsection (d) of section 811, and any balance not so required shall be refunded in a lump sum to the participant after separation or, in the event of a death in service, to a beneficiary in the order of precedence specified in subsection (g) of this section.

PART F-PERIOD FOR SERVICE FOR ANNUITIES

CREDITABLE SERVICE

167

SEC. 851.168 (a) Except as otherwise specified by law, all periods of civilian and military and naval service and periods of absence and sep

167 Sec. 511(a) of the Foreign Relations Authorization Act, Fiscal Year 1977 substituted "CREDITABLE SERVICE" in lieu of "COMPUTATION OF LENGTH OF SERVICE". 168 As amended and restated by Public Law 86-723. Further amended by Public Law 91201 which added Subsection (b). Subsection (a) was further amended and restated by Sec. 511(b) of the Foreign Relations Authorization Act, Fiscal Year 1977 (Public Law 94-350).