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B-114329, B-124299, MAR. 6, 1956

B-114329,B-124299 Mar 06, 1956
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ESQ.: REFERENCE IS MADE TO YOUR LETTER OF JULY 5. THE PRIMARY CONTENTION ADVANCED ON BEHALF OF RTTA IS THAT THE REGULATION OF THE VETERANS ADMINISTRATION. IS INVALID. IN SUPPORT OF THIS CONTENTION IT IS URGED THAT THE REGULATION DOES NOT COMPLY WITH THE PROVISIONS OF THE STATUTE AND IS NOT WITHIN THE FRAMEWORK OF THE POLICY WHICH THE CONGRESS SUFFICIENTLY DEFINED IN PUBLIC LAW 550. IT IS ALSO URGED THAT. THIS REGULATION IS NOT LOGICAL OR REASONABLE IN THAT IT IS BASED ALMOST ENTIRELY ON THE TECHNICAL THEORY THAT THE WORD "ATTENDING" AS USED IN THE PHRASE "ENROLLED IN AND ATTENDING" APPEARING IN THE STATUTORY PROVISION INVOLVED IS RESTRICTED TO A VERY NARROW MEANING THAT THE STUDENT MUST BE ACTUALLY PHYSICALLY PRESENT AT THE INSTITUTION.

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B-114329, B-124299, MAR. 6, 1956

TO MR. PAUL W. WALTER, ESQ.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1955, AND RELATED CORRESPONDENCE, CONCERNING A CLAIM SUBMITTED BY RADIO TELEVISION TRAINING ASSOCIATION, INC., NEW YORK CITY, NEW YORK (A CORRESPONDENCE SCHOOL HEREINAFTER REFERRED TO AS RTTA), FOR PAYMENT OF THE ADMINISTRATIVE ALLOWANCE AUTHORIZED BY SECTION 265 (B) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, PUBLIC LAW 550, 82D CONGRESS, 66 STAT. 663, WHICH HAD BEEN ADMINISTRATIVELY DENIED.

THE PRIMARY CONTENTION ADVANCED ON BEHALF OF RTTA IS THAT THE REGULATION OF THE VETERANS ADMINISTRATION, 38 C.F.R. 21.2303 (A) (3, WHICH PROHIBITS THE PAYMENT OF THE ADMINISTRATIVE ALLOWANCE TO CORRESPONDENCE SCHOOLS, IS INVALID. IN SUPPORT OF THIS CONTENTION IT IS URGED THAT THE REGULATION DOES NOT COMPLY WITH THE PROVISIONS OF THE STATUTE AND IS NOT WITHIN THE FRAMEWORK OF THE POLICY WHICH THE CONGRESS SUFFICIENTLY DEFINED IN PUBLIC LAW 550. IT IS ALSO URGED THAT, WHEREAS ADMINISTRATIVE RULES TO BE VALID MUST BE REASONABLE AND NOT ARBITRARY OR CAPRICIOUS,THIS REGULATION IS NOT LOGICAL OR REASONABLE IN THAT IT IS BASED ALMOST ENTIRELY ON THE TECHNICAL THEORY THAT THE WORD "ATTENDING" AS USED IN THE PHRASE "ENROLLED IN AND ATTENDING" APPEARING IN THE STATUTORY PROVISION INVOLVED IS RESTRICTED TO A VERY NARROW MEANING THAT THE STUDENT MUST BE ACTUALLY PHYSICALLY PRESENT AT THE INSTITUTION. IT IS URGED FURTHER THAT THIS NARROW MEANING OF THE WORD "ATTENDING" IS ADHERED TO ADMINISTRATIVELY "EVEN THOUGH THERE WAS NOT A SINGLE UTTERANCE OR WORD IN ALL THE DEBATES AND REPORTS PERTAINING TO THE ACT WHICH WOULD REVEAL AN INTENT TO DEPRIVE A CORRESPONDENCE SCHOOL OF THE ADMINISTRATIVE ALLOWANCE.'

SECTION 265 OF THE ACT, 38 U.S.C. 975, PROVIDES AS FOLLOWS:

"/A) EDUCATIONAL INSTITUTIONS AND TRAINING ESTABLISHMENTS SHALL, WITHOUT DELAY, REPORT TO THE ADMINISTRATOR IN THE FORM PRESCRIBED BY HIM, THE ENROLLMENT, INTERRUPTION, AND TERMINATION OF THE EDUCATION OR TRAINING OF EACH ELIGIBLE VETERAN ENROLLED THEREIN UNDER THIS SUBCHAPTER.

"/B) THE ADMINISTRATOR SHALL PAY TO EACH EDUCATIONAL INSTITUTION WHICH IS REQUIRED TO SUBMIT REPORTS AND CERTIFICATIONS TO THE ADMINISTRATOR UNDER THIS SUBCHAPTER, AN ALLOWANCE AT THE RATE OF $1.50 PER MONTH FOR EACH ELIGIBLE VETERAN ENROLLED IN AND ATTENDING SUCH INSTITUTION UNDER THE PROVISIONS OF THIS SUBCHAPTER TO ASSIST THE EDUCATIONAL INSTITUTION IN DEFRAYING THE EXPENSE OF PREPARING AND SUBMITTING SUCH REPORTS AND CERTIFICATIONS. SUCH ALLOWANCES SHALL BE PAID IN SUCH MANNER AND AT SUCH TIMES AS MAY BE PRESCRIBED BY THE ADMINISTRATOR, EXCEPT THAT IN THE EVENT ANY INSTITUTION FAILS TO SUBMIT REPORTS OR CERTIFICATIONS TO THE ADMINISTRATOR AS REQUIRED BY THIS SUBCHAPTER, NO ALLOWANCE SHALL BE PAID TO SUCH INSTITUTION FOR THE MONTH OR MONTHS DURING WHICH SUCH REPORTS OR CERTIFICATIONS WERE NOT SUBMITTED AS REQUIRED BY THE ADMINISTRATOR.'

AND, PURSUANT TO SECTION 261 (A) AUTHORIZING THE ADMINISTRATOR OF VETERANS AFFAIRS TO PRESCRIBE AND PUBLISH SUCH RULES AND REGULATIONS AS ARE CONSISTENT WITH AND NECESSARY TO CARRY OUT THE PROVISIONS OF TITLE II OF THE ACT, THE FOLLOWING REGULATION, 38 C.P.R. 21.2303 (C) (3) WAS ISSUED, AUGUST 8, 1952:

"/3) NO ADMINISTRATIVE ALLOWANCE SHALL BE PAID TO AN EDUCATIONAL INSTITUTION FOR A VETERAN ENROLLED IN A COURSE PURSUED EXCLUSIVELY BY CORRESPONDENCE.'

THE CLAIM OF RTTA WAS REFERRED TO THE ADMINISTRATOR FOR ADMINISTRATIVE REPORT AND WAS RETURNED WITH THE RECOMMENDATION THAT IT BE DISALLOWED ON THE GROUND THAT THE REGULATION IN QUESTION "IS IN ACCORD WITH THE LAW UNDER WHICH IT WAS ISSUED.' THEREAFTER, REPRESENTATIVES OF OUR OFFICE MET WITH YOU AND WITH MR. LANE OF RTTA TO PERMIT THE FURNISHING OF ADDITIONAL DATA AND EVIDENCE IN SUPPORT OF YOUR CONTENTIONS. CONFERENCES WERE HELD ALSO WITH REPRESENTATIVES OF THE VETERANS ADMINISTRATION AND FOLLOWING OUR REQUEST FOR FURTHER CONSIDERATION OF THE MATTER THE ADMINISTRATOR ADVISED THAT HE HAD APPROVED AN OPINION OF HIS GENERAL COUNSEL DATED APRIL 16, 1954, IN WHICH IT WAS CONCLUDED THAT "THE INTERPRETATION OF THE MEANING OF SECTION 265, SUPRA, AS EXPRESSED IN VA REGULATION 12303 (C) (3), IS CORRECT AND SHOULD BE ADHERED TO; AND THAT ANY OTHER RESULT WOULD REQUIRE AMENDATORY LEGISLATION.' IN ARRIVING AT THIS CONCLUSION IT IS STATED IN THE OPINION THAT THE PHRASE "ENROLLED IN AND ATTENDING" WAS INSERTED BY THE CONFEREES OF BOTH HOUSES AFTER THE ORIGINAL LEGISLATION WAS PASSED, AND THAT THE "OBVIOUS PURPOSE" OF THE INSERTION OF THIS PHRASE IN SECTION 265 (B) "WAS TO PREVENT THE PAYMENT OF THE ALLOWANCE WHERE, AS IN THE CASE UNDER CONSIDERATION, THE COURSE PURSUED BY THE VETERAN DOES NOT REQUIRE HIS ATTENDANCE AT THE EDUCATIONAL INSTITUTION OFFERING THE SAME.'

WITH RESPECT TO THE STATEMENT CONTAINED IN YOUR LETTER THAT "THERE WAS NOT A SINGLE UTTERANCE OR WORD IN ALL THE DEBATES AND REPORTS PERTAINING TO THE ACT WHICH WOULD REVEAL AN INTENT TO DEPRIVE A CORRESPONDENCE SCHOOL OF THE ADMINISTRATIVE ALLOWANCE," THIS WOULD SEEM TO INDICATE THAT THE PRECISE QUESTION MAY NOT HAVE RECEIVED CONSIDERATION AT THE TIME THE LEGISLATION WAS ENACTED. THUS, EXAMINATION OF THE LEGISLATIVE HISTORY DISCLOSES THAT THE TESTIMONY OF INTERESTED PARTIES SET OUT IN THE REPORTS OF THE HEARINGS ON THE PROPOSED BILLS AND THE STATEMENTS CONTAINED IN THE COMMITTEE REPORTS ON THE LEGISLATION RELATE TO THE DESIRABILITY OF AFFORDING COMPENSATION FOR ADMINISTRATIVE EXPENSES INCURRED BY INSTITUTIONS OFFERING RESIDENCE COURSES. THE NEEDS OF INSTITUTIONS OFFERING COURSES PURSUED EXCLUSIVELY BY CORRESPONDENCE ARE NOT SPECIFICALLY MENTIONED AND APPARENTLY WERE NOT DISCUSSED DURING THE DELIBERATIONS. NO EXPLANATION IS GIVEN IN THE CONFEREES' REPORTS OR ELSEWHERE OF THEIR REASONS FOR MODIFYING SECTION 265 (B) TO INCLUDE THE PHRASE "ENROLLED IN AND ATTENDING SUCH INSTITUTION.' HOWEVER, IF THE WORD "ATTENDING" IS TO BE GIVEN ANY PARTICULAR SIGNIFICANCE, THE COMMON MEANING ATTRIBUTED TO IT BY THE ADMINISTRATIVE AGENCY APPEARS REASONABLE, THERE BEING DISCERNED NO LEGISLATIVE INTENT TO THE CONTRARY. A COMMON MEANING OF THE WORD "ATTEND," AS YOU HAVE QUOTED FROM WEBSTER'S NEW INTERNATIONAL DICTIONARY, IS ,TO BE PRESENT AT; AS, TO ATTEND CHURCH, SCHOOL, A MEETING.'

SUCH A VIEW WOULD BE CONSISTENT WITH TERMINOLOGY USED ELSEWHERE IN THE ACT. FOR EXAMPLE, THE PHRASE "PURSUING A PROGRAM OF EDUCATION OR TRAINING" IS USED MANY TIMES IN THE ACT WITHOUT DISTINCTION AS TO THE METHOD OF INSTRUCTION, WHETHER CLASS-ROOM, CORRESPONDENCE, OR OTHER. SEE, FOR EXAMPLE, SECTIONS 231, AND 232. ON THE OTHER HAND, WHEN THE WORD "ATTENDANCE" IS USED IN THE ACT, PHYSICAL PRESENCE SEEMS TO BE IMPLIED. FOR EXAMPLE, SECTION 233 (A) (1) DEFINES A FULL-TIME COURSE AS REQUIRING "A MINIMUM OF THIRTY HOURS PER WEEK OF ATTENDANCE.' IN SECTIONS 254 (B) (5) AND (C) (7) REFERENCE IS MADE TO POLICY, RECORDS AND STANDARDS ON ATTENDANCE.

IF, IN FACT, SECTION 265 (B) WERE INTENDED TO HAVE THE EFFECT WHICH THE CLAIMANT ADVOCATES, THE TERM "PURSUING A PROGRAM OF EDUCATION," WHICH IS USED ELSEWHERE IN THE ACT, WOULD HAVE BEEN AN APT CHOICE; BUT THE MORE RESTRICTIVE WORD "ATTENDING" WAS USED AND IT CANNOT BE CONSTRUED AS THE EQUIVALENT OF THE FORMER TERM IN THE ABSENCE OF ANY INDICATION THAT SUCH WAS THE LEGISLATIVE INTENT.

UNDER THE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE REGULATION, WHICH PRECLUDES PAYMENTS OF ALLOWANCES TO CORRESPONDENCE SCHOOLS FOR REPORTS AND CERTIFICATIONS FURNISHED UNDER THE ACT, IS SO CLEARLY INCONSISTENT WITH THE ACT AS TO BE INVALID.

ACCORDINGLY, YOU ARE ADVISED THAT OUR OFFICE WOULD NOT BE JUSTIFIED IN CERTIFYING THE CLAIM OF RTTA FOR PAYMENT OF THE ADMINISTRATIVE ALLOWANCE INVOLVED.

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