B-159429, JULY 7, 1966, 46 COMP. GEN. 15

B-159429, JULY 7, 1966, 46 COMP. GEN. 15

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - PRIOR MILITARY TRAINING - EXCUSED SERVICE. A MEMBER OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS (ROTC) AWARDED A SCHOLARSHIP UNDER 10 U. S. C. 2107 WHO IS EXCUSED BY THE APPROPRIATE SECRETARY PURSUANT TO SECTION 2108 (C) FROM A PORTION OF THE REQUIRED 4- YEAR COURSE OF MILITARY TRAINING FOR A PREVIOUS PERIOD OF EQUIVALENT TRAINING OR INSTRUCTION DOES NOT LOSE HIS RIGHT TO CONTINUE TO RECEIVE THE FINANCIAL ASSISTANCE OF THE SCHOLARSHIP, THE LAW NOT EXCLUDING FROM ENROLLMENT IN THE SENIOR ROTC PROGRAM STUDENTS WHO HAVE HAD SOME PREVIOUS MILITARY TRAINING AND AUTHORIZING THE APPROPRIATE SECRETARY TO EXCUSE A STUDENT FOUND QUALIFIED ON THE BASIS OF PREVIOUS TRAINING "FROM A PORTION OF THE PRESCRIBED" ROTC COURSE, AN EXCUSED STUDENT WHO OTHERWISE COMPLETES THE PRESCRIBED 4-YEAR ENROLLMENT PERIOD IS CONSIDERED TO HAVE MET HIS OBLIGATION AS A MEMBER OF THE PROGRAM AND TO BE ENTITLED TO ITS BENEFITS.

TO THE SECRETARY OF DEFENSE, JULY 7, 1966:

REFERENCE IS MADE TO LETTER OF JUNE 11, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER A MEMBER OF THE RESERVE OFFICERS' TRAINING CORPS AWARDED A SCHOLARSHIP UNDER 10 U.S.C. 2107 MAY CONTINUE TO RECEIVE THE FINANCIAL ASSISTANCE OF THE SCHOLARSHIP IF EXCUSED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM A PORTION OF THE PRESCRIBED COURSE OF MILITARY INSTRUCTION UNDER AUTHORITY OF THE PROVISIONS OF 10 U.S.C. 2108 (C). A DISCUSSION RELATING TO THE QUESTION IS CONTAINED IN COMMITTEE ACTION NO. 378 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063, 10 U.S.C. 2031 NOTE, PROVIDES FOR TWO DIFFERENT TYPES OF PROGRAMS FOR THE SENIOR ROTC TRAINING. IT CONTINUED IN EFFECT (1) THE PRIOR PROGRAM UNDER WHICH STUDENTS RECEIVE ADVANCED TRAINING IN THE LAST 2 YEARS OF COLLEGE (SEE SECTION 2104) ALONG WITH A SUBSISTENCE ALLOWANCE OF NOT LESS THAN $40 A MONTH AND NOT MORE THAN $50 A MONTH FOR A MAXIMUM OF 20 MONTHS, AND (2) EXTENDED TO ALL OF THE MILITARY DEPARTMENTS THE 4 YEAR PROGRAM WITH SCHOLARSHIP ASSISTANCE ESTABLISHED FOR THE NAVY IN 1946 UNDER WHICH STUDENTS RECEIVE A SUBSISTENCE ALLOWANCE OF $50 A MONTH AS WELL AS TUITION, FEES, BOOKS, AND LABORATORY EXPENSES ESTIMATED AT $800 TO $850 A YEAR PER STUDENT. SEE SECTION 2107 AND 42 COMP. GEN. 669, 671. UNDER BOTH PROGRAMS THE STUDENTS MUST BECOME MEMBERS OF THE ARMED SERVICES WITH AN OBLIGATION TO ACCEPT AN APPOINTMENT AS A COMMISSIONED OFFICER AND SERVE ON ACTIVE DUTY IN AN ARMED SERVICE FOR A PERIOD PRESCRIBED BY LAW. THE BASIC PURPOSE OF THE LATTER PROGRAM IS TO OBTAIN CAREER-TYPE OFFICERS WITH LONG-TERM SERVICE OBLIGATIONS, A MINIMUM OF 4 YEARS ON ACTIVE DUTY.

SECTION 2108 (C) PROVIDES:

THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY EXCUSE FROM A PORTION OF THE PRESCRIBED COURSE OF MILITARY INSTRUCTION, INCLUDING FIELD TRAINING AND PRACTICE CRUISES, ANY PERSON FOUND QUALIFIED ON THE BASIS OF HIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH.

THE 1964 LAW PRESCRIBES CERTAIN CONDITIONS TO APPOINTMENT AS A CADET OR MIDSHIPMAN AND RECEIPT OF SCHOLARSHIP FINANCIAL ASSISTANCE. ONE OF THOSE CONDITIONS IS THAT HIS ENROLLMENT IN THE SENIOR ROTC PROGRAM MUST CONTEMPLATE NOT LESS THAN 4 YEARS OF PARTICIPATION IN THE PROGRAM. THE QUESTION PRESENTED IS WHETHER A STUDENT WHO ENROLLS FOR A PERIOD OF 4 YEARS IN THE SENIOR ROTC PROGRAM BUT WHO MAY BE EXCUSED FROM PART OF THE PRESCRIBED TRAINING BECAUSE OF PREVIOUS EQUIVALENT TRAINING OR INSTRUCTION MAY BE CONSIDERED AS MEETING THE REQUIREMENT OF THE LAW FOR NOT LESS THAN 4 YEARS PARTICIPATION IN THE PROGRAM SO AS TO BE ELIGIBLE FOR THE BENEFITS OF THE SCHOLARSHIP PROGRAM.

IT SEEMS CLEAR THAT THE LAW DOES NOT EXCLUDE FROM ENROLLMENT IN THE SENIOR ROTC PROGRAM STUDENTS WHO HAVE HAD SOME PREVIOUS MILITARY TRAINING; SUBPARAGRAPH (C), SECTION 2108, TITLE 10, U. S. CODE, EXPRESSLY GRANTS AUTHORITY TO THE APPROPRIATE SECRETARY TO EXCUSE A STUDENT FOUND QUALIFIED ON THE BASIS OF THAT TRAINING "FROM A PORTION OF THE PRESCRIBED" ROTC COURSE. IT SEEMS TO FOLLOW THAT A STUDENT SO EXCUSED BUT WHO OTHERWISE COMPLETES THE PRESCRIBED 4-YEAR ENROLLMENT PERIOD SHOULD BE CONSIDERED TO HAVE MET HIS OBLIGATION AS A MEMBER OF THE SENIOR ROTC PROGRAM AND BE ENTITLED TO ALL THE BENEFITS FLOWING THEREFROM. IT SEEMS UNLIKELY, IN THE ABSENCE OF MORE EXPLICIT STATUTORY PROVISION, THAT THE CONGRESS INTENDED A MORE RESTRICTIVE INTERPRETATION IN APPLYING THE CONDITION WITH RESPECT TO PARTICIPATION IN THE SENIOR ROTC PROGRAM TO QUALIFY FOR APPOINTMENT AS A CADET OR MIDSHIPMAN AND RECEIVE SCHOLARSHIP FINANCIAL ASSISTANCE. HENCE, IT IS OUR VIEW THAT A PERSON AWARDED A SCHOLARSHIP UNDER 10 U.S.C. 2107 WOULD NOT LOSE HIS RIGHT TO CONTINUE TO RECEIVE THE FINANCIAL ASSISTANCE OF THAT SCHOLARSHIP MERELY BECAUSE HE IS EXCUSED BY THE APPROPRIATE SECRETARY "FROM A PORTION OF THE PRESCRIBED COURSE OF MILITARY INSTRUCTION" UNDER AUTHORITY OF 10 U.S.C. 2108 (C).