QUALIFYING SERVICE UNDER THE CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM (PUBLIC LAW 88-643)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP78-03092A000200120005-9
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 6
• Document Creation Date: December 9, 2016
• Document Release Date: May 14, 2001
• Sequence Number: 5
• Publication Date: November 12, 1965
• Content Type: MFR

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MEMORANDUM FOR. THE RECORD:
SUB,TECT:
Qualifying Service under the Central
Intelligence Agency Retirement and
Disability System (Public Law 88..3)
ki9b
I. This memorandum is prepared at the direction a the
Chief, Counter Intelligence Staff, and in reference to the memo-
randum of the Acting Deputy Director for Plane, dated 8 October
1965, which solicited the views of Chiefs of Operating Divisions
and Special Staffs, Clandestine Services, as to what types of
domestic service might properly be credited as "qualifying ser-
vice" under Public Law 88.643.
Z. Section 203, P. L. 88.643 enables the Director of CIA
gnate Agency officers and employees whose duties are:
A. in support of Agency activities abroad
hazardous to life or health
B. so specialized because of security re-
quirements as to be clearly distinguishable
from normal Government employment
Such individuals are regarded as participants and entitled to the bene-
fits of the system.
3. House Report No. 763 states that in the hearings on the
bill witnesses proposed that the system encompass only a portion
of Agency employees (not to exceed 30%), such as those engaged in
the conduct and support of intelligence activities, whose conditions
of employment were in many way. substantially similar to those of
Foreign Service Officers. However, P. L. 88-643 specifically pro-
vides in Section 236 that the participants of the Act shall Aot exceed
, 1
Er:head ficn autematIc
dcwzre,'?ilag ad
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4. Section 201, P. L. 88-643 permits the Director of CIA
to prescribe rules and regulations for the establishment and main..
tenance of the system, and requires that such rules and regulations
become effective only after approval by the chairman and ranking
minority members of the Armed Services Committees of the House
and Senate. Also, that the system shall be administered in accord-
ance with such rules and regulations, and with the principles es-
tabliehed13 the Act. It is assumed that the rules and regulation
contained in have received the prescribed approvals.
5. Section 201 (c), P. L. 88-643 provides that any deter-
tions by the Director authorized by the provisions of the Act
shall be deemed to be final and conclusive and not subject to re-
view by any court.
6. Headquarters Aegula tOricontains the prescribed
Ages and policies governing the administration of the system. This
regulation defines "qualifying service" as performance of duty:
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experience cannot be described in sufficient
detail to demonstrate Ms qualifications adequately
to a prospective employer.
7. Under kritan employee must complete 60 months of
qualifying service, as defined above, in order to become a participant
in the system.
8. From the memoranda dated 13 and 16 October 1965 pre-
pared by Legislative Counsel, OGC, it is evident that the Congress
fully contemplated that the geographic location of the Agency em-
ployee would not serve as a bar to his performance of qualifying
duty. Hence the failure of the Act and regulations to contain any
such limitation is no accident.
9. COMMENT: Since the enactment of P. L.. 88-643 and the
25X1A promulgation of HR the Agency has conducted a review of
employment histories, and, as a result thereof, has declared some
employees eligible and some employees ineligible for participation
in the system. Although nothing has been issued in writing, it is
widely discussed in the Agency that the only basis for eligibility
is whether the employee has served abroad for a period of five years.
More specifically it may be that the review to date has involved
only those employees 50 years of age or older, who come within
25X1A the provisions of Paragraph 50e (1) of HR Unless, however,
the employee has served abroad for & period of five or more years,
he is declared ineligible for participation in the system. The
ineligible employee receives a notice from the Director of Personnel
stating that his case has been reviewed by his Career Service and
that he has been declared not eligible. The letter of notification
gives no basis for the decision.
10. It can be regarded as common knowledge among Agency
employees that an individual's employment history does contain his
place of assignment and his job title but that the job title is not
Indicative of duties performed, and that an accurate description of
duties performed is not a part of the file. Thus it is not possible
for a Career Service representative to determine upon the basis of
a file review whether conditions of employment were:
A, hazardous to life or health; or
B. in the conduct or support of intelligence
activities abroad; or
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C. such as to require stringent security and
covert tradecraft procedure*, etc.; or
D. such as would place the individual at a
distinct disadvantage ix: seeking other
employment, etc.
It. An action by the Career Service to declare an employee
ineligible for participation in the system upon the basis that he ham
not served abroad for five or more years. and without an affirmative
determination that the duties performed do not bring the employee
within the terms of the above cited conditions, is clearly an arbi-
trary action in circumvention of the terms of the Act and the pro-
mulgated regulations. There ie nothing in the Act or in the regu-
lations permitting a decision on the question of eligibility to be
made on the basis of service abroad.
12. As stated in Paragraph 51 of the Headquarters Em-
ployee Bulletin dated 30 July 1965, the Agency clearly has been
given the broadest possible latitude for defining "qualifying
service", but only in accordance with the rules and regulations
and with the principles established by the Act. Determinations
by the Director NOT authorized by the provisions of the Act (which
encompass the approved rules and regulations). open the way to
litigation on the finality and conclusiveness of those determinations.
13. With reference to the limitation of 800 participants
in the system, it would appear that the Congress expected the
Agency to be able, within the terms of Section 203 of the Act and
of Paragraph 50b (11) of HR to limit the application of
the Act through a meaningful decision regarding the qualifying
nature of actual duties performed by the employee in each individual
case. It appears that prima facie any employee who has signed the
application for membership and been accepted into the Career Staff
of the Agency is eligible for participation in the system. However,
final determination would depend upon the actual conditions of
employment of each individual. Only through development of
valid criteria, within the terms of the act and regulations, can
the Congress be assured that it has enacted legislation covering
all eligible persons and that it will not be confronted later with
allegations of discriminatory legislation.
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14. The compiled views of the Chiefs of Operating Divisions
and Special Staffs, Clandestine Services, regarding type. of domes-
tic service which might qualify an employee for participation in the
system are informative but useful to the Career Staff, Office of
Personnel and Retirement Board only insofar as those views might
assist in the development of criteria and in a decision as to the
qualifying nature of the duties performed by each individual employee.
15. Unless the Agency determines the duties actually per-
formed by each employee, and develops valid criteria. for the es-
tabliehment of the qualifying nature of those duties under the pro-
visions of the Act and the regulations (which apply no restriction
as to the geographic location of the performance), the way is left
open for litigation by employees who decide to adopt an adversary
role. Furthermore, appropriate representatives of the interested
Senate and House Committees should be kept informed of progress
on thekle_velopmentILvqf ualifying service cajtjgArirom individual
cases in anticipation of an ultimate justification of the Agency's
administration of the Act.
16. As a corollary to the administration of the Act It
cern that, if an employee is serving on a career basisin
-
latch normally requires the performance of MinittlUM
f qualifying service, the Agency would be obligated for
of equity to establish procedures which would assure that
?
ployee be permitted to qualify for the system. Even at the
present time there is an apparent need for a. policy as to the status
of employees, who have been available for qualifying duty by reason
of membership in the Career Staff, but have not been permitted to
acquire such because they have been assigned to supposedly non-
qualifying duties for the convenience of the Government.
17. Other related problems might appropriately be men-
ed at this time as follows:
A. Policy decisions are necessary regarding cases
in which an employee, who has qualified for
participat,on in the system, resigns before he
reaches the age of 50 years. Having qualified
for the system, it would appear that such per.
son might properly apply for retirement bene-
fits under the system upon reaching age 50.
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B. The SECRET classification of the rules
and regulations invites wholesale and
unavoidable violation of employee secrecy
agreements. A person of necessity is
required to discuss and disclose the
facts of his retirement plans and pro-
gram with such as, insurance representa-
tives, medical and legal advisors, wife
and family, and the Bureau of Internal
Revenue.
C. The implementation of the Agency Retire-
ment System may become a moot subject
as of 1 December 1965 when a Cabinet
Committee headed by Budget Director,
Charles L. SCHULTZE publishes a new
program of retirement and fringe bene-
fits for the 5.5 million civilian and
military personnel.
Special Assistant
Counter Intelligence Staff
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