B-159429, APR 12, 1971, 50 COMP GEN 727

B-159429, APR 12, 1971, 50 COMP GEN 727

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - SCHOLARSHIP BENEFITS - MILITARY TRAINING A STUDENT CURRENTLY ENROLLED AT AN EDUCATIONAL INSTITUTION BUT NOT IN A RESERVE OFFICERS' TRAINING CORPS (ROTC) PROGRAM DURING HIS FRESHMAN OR SOPHOMORE YEAR MAY BE SELECTED FOR A SCHOLARSHIP UNDER 10 U.S.C. 2107 IF HE POSSESSES PREREQUISITES FOR EXCUSAL FROM THE GENERAL MILITARY COURSE UNDER 10 U.S.C. 2108(C) AND RECEIVE THE BENEFITS OF THE SCHOLARSHIP, FOR ACCORDING TO THE LEGISLATIVE HISTORY OF SECTION 2107, SCHOLARSHIP ASSISTANCE MAY BE PROVIDED FOR THE MINIMUM OF 1 YEAR OR MAXIMUM OF 4 YEARS, COMMENTS WHICH WERE THE BASIS OF THE CONCLUSION IN 50 COMP. GEN. 486, WHICH IS AFFIRMED, AND, THEREFORE, THE STUDENT WHO DOES NOT PARTICIPATE IN AN EDUCATIONAL INSTITUTION'S SENIOR ROTC TRAINING PROGRAM FOR 4 YEARS MAY RECEIVE THE FINANCIAL ASSISTANCE AUTHORIZED IN SECTION 2107 IF HE IS EXCUSED BY THE SECRETARY CONCERNED FROM PORTIONS OF THE 4- YEAR PROGRAM ON THE BASIS OF HAVING PERFORMED EQUIVALENT MILITARY TRAINING.

TO THE SECRETARY OF DEFENSE, APRIL 12, 1971:

IN LETTER OF MARCH 25, 1971, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTED A DECISION AS TO WHETHER A STUDENT CURRENTLY ENROLLED AT AN INSTITUTION BUT NOT IN AN ROTC PROGRAM DURING HIS FRESHMAN OR SOPHOMORE YEAR MAY BE SELECTED FOR A SCHOLARSHIP UNDER 10 U.S.C. 2107 IF HE POSSESSES PREREQUISITES FOR EXCUSAL FROM THE GENERAL MILITARY COURSE UNDER 10 U.S.C. 2108(C) AND RECEIVE THE BENEFITS OF THE SCHOLARSHIP.

IT APPEARS THAT THE QUESTION HERE INVOLVED IS THE SAME AS THAT WHICH WAS INTENDED TO BE STATED AS QUESTION 2C IN COMMITTEE ACTION NO. 447 APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ON OCTOBER 30, 1970. THE WORD "NOT" WAS INADVERTENTLY OMITTED FROM QUESTION 2C.

THE OMISSION OF THE WORD "NOT" FROM QUESTION 2C MADE THE DISCUSSION IN COMMITTEE ACTION NO. 447 APPROVED BY THE COMMITTEE ON OCTOBER 30, 1970, SEEM SOMEWHAT OBSCURE, AS A RESULT OF WHICH WE STATED IN DECISION TO YOU OF JANUARY 13, 1971, 50 COMP. GEN. 486, THAT -

THERE IS NOTHING IN THE LANGUAGE OF SUBSECTION 2108(C) OR IN ITS LEGISLATIVE HISTORY TO SUGGEST THAT ITS APPLICATION IS LIMITED TO THE SCHOLARSHIP PROGRAM PROVIDED IN 10 U.S.C. 2107. CONSEQUENTLY WE MUST VIEW THE PROVISIONS OF SUBSECTION 2108(C) AS REACHING THE ADVANCED TRAINING PROGRAM PROVIDED IN 10 U.S.C. 2104 AS WELL AS THE SCHOLARSHIP PROGRAM AUTHORIZED IN 10 U.S.C. 2107. THEREFORE WE ARE NOT AWARE OF ANY STATUTORY BASIS FOR DENYING A STUDENT - WHO IS ELIGIBLE FOR EXCUSAL UNDER 10 U.S.C. 2108(C) FROM THE GENERAL MILITARY COURSE (GMC) - ADMISSION TO THE ADVANCED COURSE PROVIDED IN 10 U.S.C. 2104 SIMPLY BECAUSE OF SUCH EXCUSAL. IN OUR OPINION A STUDENT WHO IS ELIGIBLE FOR SUCH EXCUSAL "ON THE BASIS OF THIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH," INSOFAR AS THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 IS CONCERNED, IS ELIGIBLE FOR THE FINANCIAL BENEFITS PROVIDED EITHER IN 10 U.S.C. 2104 OR IN 10 U.S.C. 2107, IF HE OTHERWISE IS QUALIFIED THEREFOR.

IT IS STATED IN COMMITTEE ACTION NO. 447 APPROVED ON FEBRUARY 26, 1971, THAT, IN VIEW OF THE ABOVE DISCUSSION IN OUR DECISION OF JANUARY 13, IT APPEARS THAT THE ANSWER TO THE CORRECTED QUESTION IS IN THE AFFIRMATIVE, BUT THAT, SINCE THE QUESTION WAS INCORRECTLY STATED IN THE ORIGINAL SUBMISSION, RECONSIDERATION IS CONSIDERED APPROPRIATE.

WHILE SUBSECTION (A) OF 10 U.S.C. 2107 PROVIDES THAT A MEMBER WHOSE ENROLLMENT IN THE SENIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM CONTEMPLATES LESS THAN 4 YEARS OF PARTICIPATION IN THE PROGRAM MAY NOT BE APPOINTED A CADET OR MIDSHIPMAN UNDER THAT SECTION, OR RECEIVE ANY FINANCIAL ASSISTANCE AUTHORIZED BY THAT SECTION, THE LEGISLATIVE REPORTS OF BOTH THE HOUSE OF REPRESENTATIVES AND THE SENATE ON THE THEN PROPOSED LEGISLATION (WHICH INCLUDED SECTION 2107) SPECIFICALLY STATED THAT THE SCHOLARSHIP ASSISTANCE PROVIDED IN SECTION 2107 MAY BE PROVIDED FOR A MINIMUM OF 1 YEAR OR MAXIMUM OF 4 YEARS. ON THE BASIS OF SUCH LEGISLATIVE COMMENTS, WE CONCLUDED IN OUR DECISION OF JANUARY 13 THAT THE MINIMUM "FOUR YEARS OF PARTICIPATION IN THE PROGRAM" SPECIFIED IN SECTION 2107, REFERS TO PARTICIPATION IN THE 4-YEAR MILITARY SERVICE AND TRAINING PROGRAM AND EQUIVALENT PORTIONS THEREOF PREVIOUSLY RECEIVED AS DETERMINED BY THE COGNIZANT SECRETARY AND THAT, CONSEQUENTLY, A STUDENT WHO DOES NOT IN FACT PARTICIPATE IN THE EDUCATIONAL INSTITUTION'S SENIOR ROTC TRAINING PROGRAM FOR 4 YEARS MAY RECEIVE THE FINANCIAL ASSISTANCE THERE AUTHORIZED IF HE IS EXCUSED BY THE SECRETARY CONCERNED FROM PORTIONS OF THE 4-YEAR PROGRAM ON THE BASIS OF HIS HAVING PERFORMED EQUIVALENT MILITARY TRAINING.

UPON RECONSIDERATION THE FOREGOING ANSWER IN OUR DECISION OF JANUARY 13, 1971, 50 COMP. GEN. 486, IS AFFIRMED AND THE PRESENT QUESTION IS ANSWERED IN THE AFFIRMATIVE.