A-19141, JULY 22, 1927, 7 COMP. GEN. 54

A-19141: Jul 22, 1927

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IS CONTRARY TO THE PROVISO APPEARING IN THE WAR DEPARTMENT APPROPRIATION ACT OF FEBRUARY 23. 1927: I HAVE RECEIVED YOUR LETTER OF JULY 6. THE WAR DEPARTMENT DESIRES TO TRANSFER A WEAK AND UNPRODUCTIVE MOUNTED UNIT OF THE RESERVE OFFICERS' TRAINING CORPS FROM THE UNIVERSITY WHERE IT IS NOW LOCATED TO ANOTHER INSTITUTION WHICH DESIRES IT. WHERE IT WOULD HAVE AN OPPORTUNITY TO BECOME EFFICIENT. IT IS VERY DESIRABLE THAT THE EXISTING NUMBER OF MOUNTED UNITS OF THE RESERVE OFFICERS' TRAINING CORPS SHOULD BE MAINTAINED. AT THE SAME TIME IT IS MANIFESTLY UNPROFITABLE TO CONTINUE THE SUPPORT OF A UNIT WHICH IS BELOW STANDARD AND WHICH GIVES LITTLE PROMISE OF BECOMING EFFICIENT AT ITS PRESENT LOCATION.

A-19141, JULY 22, 1927, 7 COMP. GEN. 54

APPROPRIATIONS - WAR DEPARTMENT - RESERVE OFFICERS' TRAINING CORPS THE USE OF PUBLIC FUNDS FOR THE ORGANIZATION AND MAINTENANCE OF A MOUNTED UNIT OF THE RESERVE OFFICERS' TRAINING CORPS AT A UNIVERSITY WHERE NONE NOW EXISTS, THOUGH PRECEDED BY THE DISCONTINUANCE OF A MOUNTED UNIT AT ANOTHER SCHOOL, IS CONTRARY TO THE PROVISO APPEARING IN THE WAR DEPARTMENT APPROPRIATION ACT OF FEBRUARY 23, 1927, 44 STAT. 1135, PROHIBITING THE USE OF FUNDS APPROPRIATED FOR THE RESERVE OFFICERS' TRAINING CORPS FOR THE ORGANIZATION OR MAINTENANCE OF ADDITIONAL MOUNTED, MOTOR TRANSPORT, OR TANK UNITS IN THAT CORPS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 22, 1927:

I HAVE RECEIVED YOUR LETTER OF JULY 6, 1927, REQUESTING DECISION ON THE FOLLOWING MATTER:

THE WAR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1927 (44 STAT. 254), CONTAINS THE FOLLOWING PROVISO (AT PAGE 284):

"THAT NONE OF THE FUNDS APPROPRIATED IN THIS ACT SHALL BE USED FOR THE ORGANIZATION OR MAINTENANCE OF ADDITIONAL MOUNTED, MOTOR TRANSPORT, OR TANK UNITS IN THE RESERVE OFFICERS' TRAINING CORPS.'

THE SAME PROVISO HAS BEEN CARRIED IN ALL THE APPROPRIATION ACTS SINCE 1923.

THE WAR DEPARTMENT DESIRES TO TRANSFER A WEAK AND UNPRODUCTIVE MOUNTED UNIT OF THE RESERVE OFFICERS' TRAINING CORPS FROM THE UNIVERSITY WHERE IT IS NOW LOCATED TO ANOTHER INSTITUTION WHICH DESIRES IT, AND WHERE IT WOULD HAVE AN OPPORTUNITY TO BECOME EFFICIENT. IT IS VERY DESIRABLE THAT THE EXISTING NUMBER OF MOUNTED UNITS OF THE RESERVE OFFICERS' TRAINING CORPS SHOULD BE MAINTAINED; AT THE SAME TIME IT IS MANIFESTLY UNPROFITABLE TO CONTINUE THE SUPPORT OF A UNIT WHICH IS BELOW STANDARD AND WHICH GIVES LITTLE PROMISE OF BECOMING EFFICIENT AT ITS PRESENT LOCATION.

IN VIEW OF THE PROVISION OF THE LAW ABOVE QUOTED, CAN SUCH TRANSFER BE EFFECTED PROVIDED THAT THE TOTAL NUMBER OF MOUNTED UNITS IS NOT THEREBY INCREASED?

THE QUESTION WAS PRESENTED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY IN MAY, 1925, WHO HELD THAT THE WORD "ADDITIONAL," IN THE PROVISION OF THE LAW IN QUESTION, SHOULD BE CONSTRUED AS MEANING "NEW.' A COPY OF THE JUDGE ADVOCATE GENERAL'S OPINION IS ENCLOSED. THE CHIEF OF FIELD ARTILLERY, IN WHOSE BRANCH THE QUESTION AROSE, WAS THEN, AND IS NOW, VERY DESIROUS FOR A DIFFERENT CONSTRUCTION IN ORDER THAT HE MAY BE AUTHORIZED TO MAINTAIN THE REQUISITE NUMBER OF UNITS OF HIS ARM WITHOUT THE HANDICAP OF BEING REQUIRED TO CONTINUE UNITS WHICH CAN NOT BE BROUGHT UP TO THE DESIRED STANDARD IN THEIR PRESENT LOCATIONS. IN A COMMUNICATION UPON THE SUBJECT, DATED JUNE 22, 1925, THE CHIEF OF FIELD ARTILLERY SAID:

"WITH TWENTY R.O.T.C. UNITS THE FIELD ARTILLERY THUS FAR IS PRODUCING ONLY 40 PERCENT OF ITS QUOTA OF RESERVE OFFICERS. UNDER NO CIRCUMSTANCES SHOULD THIS NUMBER OF UNITS BE REDUCED SINCE AT THE PRESENT TIME IT IS SERIOUSLY QUESTIONED WHETHER OR NOT PRODUCTION OF FIELD ARTILLERY RESERVE OFFICERS CAN WITH TWENTY UNITS BE BROUGHT UP TO THE FIGURE SET BY THE WAR DEPARTMENT.'

THE MATTER WAS PRESENTED TO THE DIRECTOR OF THE BUREAU OF THE BUDGET WITH A VIEW TO HAVING THE LANGUAGE OF THE LAW CHANGED SO AS TO PERMIT THE ACTION DESIRED BY THE CHIEF OF FIELD ARTILLERY, AND THE DIRECTOR OF THE BUDGET WAS OF THE OPINION THAT THE WORDING OF THE LAW AS IT NOW STANDS PERMITTED SUCH ACTION AND FOR THAT REASON NO CHANGE IN THE LAW WAS RECOMMENDED.

IN VIEW OF THIS UNSETTLED STATUS OF THE MATTER, THE QUESTION WAS SUBMITTED TO THE ATTORNEY GENERAL. A COPY OF HIS LETTER OF MAY 11, 1927, IS INCLOSED. WHILE HE REFRAINS FROM RENDERING A FORMAL OPINION, HE APPARENTLY LEANS TOWARD THE VIEW TAKEN BY THE JUDGE ADVOCATE GENERAL, BUT SAYS THAT "THE QUESTION IS ONE WHICH MAY MORE PROPERLY BE SUBMITTED TO THE COMPTROLLER GENERAL.'

IT IS NOT CLEAR HOW THE PROPOSED CHANGE CAN BE PROPERLY CALLED A "TRANSFER" OF A MOUNTED UNIT FROM ONE UNIVERSITY TO ANOTHER. IT IS UNDERSTOOD THAT A UNIT OF THE RESERVE OFFICERS' TRAINING CORPS IS COMPOSED OF STUDENTS ENROLLED AT THE SCHOOL WHERE THE UNIT IS ESTABLISHED. IT IS NOT CONTEMPLATED, OF COURSE, THAT SUCH STUDENTS WILL TRANSFER TO A DIFFERENT SCHOOL. WHAT IS INTENDED APPARENTLY IS THE DISCONTINUANCE OF A MOUNTED UNIT NOW IN EXISTENCE AT A CERTAIN SCHOOL AND THE ORGANIZATION OF A NEW MOUNTED UNIT AT A SCHOOL WHERE NONE NOW EXISTS, WITH POSSIBLY THE TRANSFER OF INSTRUCTORS, MATERIAL, ETC., FROM ONE SCHOOL TO THE OTHER, AND THE QUESTION PRESENTED WILL BE CONSIDERED ON THAT BASIS.

THE RESTRICTION AGAINST THE ORGANIZATION AND MAINTENANCE OF ADDITIONAL MOUNTED UNITS IN THE RESERVE OFFICERS' TRAINING CORPS FIRST APPEARED IN THE ARMY APPROPRIATION ACT OF JUNE 30, 1922, 42 STAT. 720, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NONE OF THE FUNDS APPROPRIATED IN THIS ACT SHALL BE USED FOR THE ORGANIZATION OR MAINTENANCE OF ADDITIONAL MOUNTED, MOTOR TRANSPORT, TANK, OR AIR UNITS IN THE RESERVE OFFICERS' TRAINING CORPS.

A SIMILAR PROVISION HAS BEEN CARRIED IN EACH SUBSEQUENT ARMY APPROPRIATION ACT. SECTION 40 OF THE NATIONAL DEFENCE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776, PROVIDES:

RESERVE OFFICERS' TRAINING CORPS--- ORGANIZATION.--- THE PRESIDENT IS HEREBY AUTHORIZED TO ESTABLISH AND MAINTAIN IN CIVIL EDUCATIONAL INSTITUTIONS A RESERVE OFFICERS' TRAINING CORPS, ONE OR MORE UNITS IN NUMBER, WHICH SHALL CONSIST OF A SENIOR DIVISION ORGANIZED AT UNIVERSITIES AND COLLEGES GRANTING DEGREES, INCLUDING STATE UNIVERSITIES AND THOSE STATE INSTITUTIONS THAT ARE REQUIRED TO PROVIDE INSTRUCTION IN MILITARY TACTICS UNDER THE ACT OF CONGRESS OF JULY 2, 1862, DONATING LANDS FOR THE ESTABLISHMENT OF COLLEGES WHERE THE LEADING OBJECT SHALL BE PRACTICAL INSTRUCTION IN AGRICULTURE AND THE MECHANIC ARTS, INCLUDING MILITARY TACTICS, AND AT THOSE ESSENTIALLY MILITARY SCHOOLS NOT CONFERRING ACADEMIC DEGREES, SPECIALLY DESIGNATED BY THE SECRETARY OF WAR AS QUALIFIED, AND A JUNIOR DIVISION ORGANIZED AT ALL OTHER PUBLIC AND PRIVATE EDUCATIONAL INSTITUTIONS, AND EACH DIVISION SHALL CONSIST OF UNITS OF THE SEVERAL ARMS, CORPS, OR SERVICES IN SUCH NUMBER AND SUCH STRENGTH AS THE PRESIDENT MAY PRESCRIBE: PROVIDED, THAT NO SUCH UNIT SHALL BE ESTABLISHED OR MAINTAINED AT ANY INSTITUTION UNTIL AN OFFICER OF THE REGULAR ARMY SHALL HAVE BEEN DETAILED AS PROFESSOR OF MILITARY SCIENCE AND TACTICS, NOR UNTIL SUCH INSTITUTION SHALL MAINTAIN UNDER MILITARY INSTRUCTION AT LEAST ONE HUNDRED PHYSICALLY FIT MALE STUDENTS, EXCEPT THAT IN THE CASE OF UNITS OTHER THAN INFANTRY, CAVALRY, OR ARTILLERY, THE MINIMUM NUMBER SHALL BE FIFTY: PROVIDED FURTHER, THAT EXCEPT AT STATE INSTITUTIONS DESCRIBED IN THIS SECTION, NO UNIT SHALL BE ESTABLISHED OR MAINTAINED IN AN EDUCATIONAL INSTITUTION UNTIL THE AUTHORITIES OF THE SAME AGREE TO ESTABLISH AND MAINTAIN A TWO YEARS' ELECTIVE OR COMPULSORY COURSE OF MILITARY TRAINING AS A MINIMUM FOR ITS PHYSICALLY FIT MALE STUDENTS, WHICH COURSE, WHEN ENTERED UPON BY ANY STUDENT, SHALL, AS REGARDS SUCH STUDENT, BE A PREREQUISITE FOR GRADUATION UNLESS HE IS RELIEVED OF THIS OBLIGATION BY REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF WAR.

THE PURPOSE OF THE PROVISO HERE IN QUESTION AS TO THE CREATION OF ADDITIONAL MOUNTED, MOTOR TRANSPORT, OR TANK UNITS IN THE RESERVE OFFICERS' TRAINING CORPS, AS DISCLOSED IN THE HEARINGS AND COMMITTEE REPORTS, APPEARS TO HAVE BEEN TO RESTRICT THE ADDITIONAL EXPENSE INVOLVED IN CONNECTION WITH THE FURNISHING AND MAINTENANCE OF ANIMALS, EQUIPMENT, ETC., FOR THEIR USE, AND OPERATES AS A RESTRICTION ON THE AUTHORITY OF THE PRESIDENT UNDER SECTION 40 OF THE NATIONAL DEFENSE ACT TO ESTABLISH CERTAIN CLASSES OF UNITS OF THE RESERVE OFFICERS' TRAINING CORPS.

IT APPEARS THAT AT THE TIME OF THE FIRST ENACTMENT OF THE PROVISO PROHIBITING THE ORGANIZATION OR MAINTENANCE OF ADDITIONAL UNITS OF THE CHARACTER SPECIFIED, THERE ALREADY HAD BEEN ESTABLISHED IN VARIOUS SCHOOLS THROUGHOUT THE COUNTRY A CERTAIN NUMBER OF SUCH UNITS, A LARGE NUMBER OF STUDENTS WERE ENROLLED AS MEMBERS THEREOF AND THEIR TRAINING IN THESE BRANCHES WAS IN PROGRESS AND AT VARIOUS STAGES OF COMPLETION. IT IS POSSIBLE THE PURPOSE OF THE COMMITTEE HAVING THE MATTER IN CHARGE WAS TO DISCONTINUE SUCH UNITS. AT LEAST REPRESENTATIONS SEEM TO HAVE BEEN MADE BY OFFICERS APPEARING FOR THE WAR DEPARTMENT THAT EXISTING UNITS SHOULD BE CONTINUED AS APPEARS IN THE HEARINGS ON PROPOSED APPROPRIATIONS AFFECTING SUCH UNITS FOR THE YEARS 1923 AND 1927.

BY COLONEL MORROW, HEARINGS FOR 1923, PAGE 171:

CONGRESS CREATED A CONTINUING OBLIGATION IN THE ORGANIC ACT IN CREATING THE RESERVE OFFICERS' TRAINING CORPS, BECAUSE ITS WORK IS CONTINUOUS AND PROGRESSIVE; IT REQUIRES FOUR YEARS FOR A STUDENT TO COMPLETE THE COURSE OF TRAINING, AND, AFTER STATED PERIODS, THE YOUNG MEN QUALIFY FOR SPECIFIED DEFINITE BENEFITS. THERE ARE ALSO THE OBLIGATIONS TO THE INSTITUTIONS. THEY ACCOMMODATE THEIR ACADEMIC CURRICULA AND ROUTINE TO THE NECESSITIES OF THE RESERVE OFFICERS' TRAINING CORPS AT THE EXPENSE OF THEIR OTHER INTERESTS, AND THEY EXPEND THEIR OWN FUNDS TO PROVIDE FACILITIES TO ASSIST THE ARMY OFFICERS IN THE CONDUCT OF THEIR COURSES. MANY INSTITUTIONS APPROPRIATE CONSIDERABLE SUMS EACH YEAR TO IMPROVE THEIR FACILITIES FOR CONDUCTING THIS TRAINING. IT IS A SOURCE OF INCREASED EXPENSE TO ALL INSTITUTIONS, WHICH THEY MEET IN A SPIRIT OF PATRIOTIC COOPERATION WITH THE GOVERNMENT.

BY CAPTAIN ECHOLS, HEARINGS FOR 1927, PAGE 467:

A NUMBER OF INSTITUTIONS, FEELING THAT THEY HAD A CONTRACT WITH THE GOVERNMENT IN REGARD TO THE CONTINUED MAINTENANCE OF THESE UNITS, HAVE ALREADY SPENT CONSIDERABLE SUMS OF MONEY ON STABLES, GUNS, SHEDS, AND RIDING HALLS IN ORDER TO CARRY OUT WHAT THEY HAVE CONSIDERED THEIR PART OF THE CONTRACT. THEY WOULD CONSIDER THE WITHDRAWAL OF THESE MEN AS A BREACH OF FAITH ON THE PART OF THE GOVERNMENT. THE FOLLOWING ARE SOME OF THE INSTITUTIONS WHICH THE RECORDS SHOW HAVE ALREADY SPENT MONEY FOR THIS PURPOSE. A NUMBER OF OTHER INSTITUTIONS HAVE PLANS AND ARE EXPECTING TO OBTAIN FUNDS FROM THEIR STATE LEGISLATURES TO CARRY OUT THEIR PROGRAMS:

YALE, APPROXIMATELY $200,000 (COMPLETED).

PRINCETON, APPROXIMATELY $200,000 (IN PROCESS OF CONSTRUCTION).

UNIVERSITY OF OKLAHOMA, APPROXIMATELY $50,000 (IN PROCESS OF CONSTRUCTION).

IOWA STATE COLLEGE, APPROXIMATELY $200,000 (COMPLETED).

UNIVERSITY OF UTAH, APPROXIMATELY $50,000 (COMPLETED).

THAT IT WAS ONLY TO ALLOW THE CONTINUANCE OF EXISTING UNITS WHILE PROHIBITING THE USE OF PUBLIC FUNDS FOR ANY OTHER UNITS OF THE CHARACTER IN QUESTION THAT CONGRESS LEGISLATED AGAINST THE ORGANIZATION OR MAINTENANCE OF "ADDITIONAL" UNITS OF SUCH CHARACTER, I BELIEVE IS APPARENT FROM THE CIRCUMSTANCES UNDER WHICH THE LEGISLATION WAS ENACTED. THE INTENT OF THE PROVISO, AS DISCLOSED BY ITS LANGUAGE, BY STATUTES IN PARI MATERIA (SEE ACT OF APRIL 15, 1926, 44 STAT. 258), AND BY JUDICIALLY ACCEPTABLE AIDS IN THE CONSTRUCTION OF STATUTES, IS THAT THE USE OF PUBLIC FUNDS TO ORGANIZE AND MAINTAIN A MOUNTED UNIT AT AN INSTITUTION WHERE NONE NOW EXISTS IS PROHIBITED, AND THIS NOTWITHSTANDING AN EXISTING MOUNTED UNIT BE FIRST DISCONTINUED AT AN INSTITUTION WHERE IT IS NOW ESTABLISHED.