B-117922, MARCH 24, 1954, 33 COMP. GEN. 399

B-117922, MARCH 24, 1954, 33 COMP. GEN. 399

COLLEGES, SCHOOLS, AND UNIVERSITIES - CHILDREN OF DEPARTMENT OF DEFENSE PERSONNEL ATTENDING PRIVATE SCHOOLS - REIMBURSEMENT OF TUITION FEES TO PARENTS THE ACT OF AUGUST 2, 1946, WHICH AUTHORIZES THE SECRETARY OF NAVY TO CONTRIBUTE TO THE SUPPORT OF SCHOOLS FOR DEPENDENTS OF NAVAL PERSONNEL IN LOCALITIES WHERE AVAILABLE SCHOOLS ARE INADEQUATE, CONTEMPLATES THAT AGREEMENTS WITH THE SCHOOLS WILL BE MADE BY APPROPRIATE ADMINISTRATIVE OFFICERS AFTER A PROPER ADMINISTRATIVE DETERMINATION HAS BEEN MADE THAT EXISTING FACILITIES ARE NOT ADEQUATE, AND THEREFORE ANNUAL NAVY APPROPRIATIONS ARE NOT AVAILABLE TO REIMBURSE NAVAL PERSONNEL FOR TUITION CHARGES PERSONALLY INCURRED FOR CHILDREN IN PRIVATE SCHOOLS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, MARCH 24, 1954:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1953, RESPECTING GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 5, 1953, WHICH DISALLOWED THE CLAIM OF COLONEL GEORGE D. RICH, USMC, FOR $26.39 AS REIMBURSEMENT OF THE COST OF TUITION PAID FOR THE PRIVATE SCHOOLING OF HIS SON WHILE IN ENGLAND DURING THE FISCAL YEAR 1951. YOU REQUEST RECONSIDERATION OF THE SETTLEMENT TO THE END THAT THERE MAY BE CONTINUED THE PRACTICE OF REIMBURSING NAVAL PERSONNEL FOR TUITION PAID FOR THEIR CHILDREN IN PRIVATE SCHOOLS IN AREAS WHERE IT IS NOT FEASIBLE OR ECONOMICAL TO ESTABLISH NAVY- OPERATED SCHOOLS.

THE CLAIM OF COLONEL RICH, WHICH WAS FORWARDED HERE FOR DIRECT SETTLEMENT BECAUSE THE APPROPRIATION FOR THE FISCAL YEAR 1951 HAD LAPSED, WAS DISALLOWED FOR THE REASON THAT THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR 1951, 64 STAT. 730, AUTHORIZING CONTRIBUTIONS FOR THE SUPPORT OF SCHOOLS FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE DOES NOT AUTHORIZE REIMBURSEMENT TO A MEMBER OF THE ARMED SERVICES FOR TUITION PAID BY HIM TO A PRIVATE SCHOOL.

YOUR LETTER REFERS TO THE CONGRESSIONAL HEARINGS ON THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR 1954, 67 STAT. 336, WHERE REPRESENTATIVES OF THE NAVY POINTED OUT TO THE COMMITTEE THAT IN SOME INSTANCES OVERSEAS IT IS NOT ECONOMICAL FOR THE NAVY TO OPERATE SCHOOLS BECAUSE OF THE SMALL NUMBER OF PUPILS INVOLVED AND THAT IN SUCH CASES THE NAVY HAS FOLLOWED THE PRACTICE OF SENDING CHILDREN TO PRIVATE SCHOOLS IN THE AREA AND OF APPLYING THE STATUTORY COST LIMITATION PER PUPIL APPLICABLE TO THE AIR FORCE AND ARMY APPROPRIATIONS FOR THIS PURPOSE. ALSO, IT IS STATED IN YOUR LETTER THAT IN FOLLOWING THIS PRACTICE THE NAVY HAS APPLIED CERTAIN ADMINISTRATIVE CONTROLS, SUCH AS REQUIRING PARENTS WHO SEND THEIR CHILDREN TO PRIVATE SCHOOLS TO SECURE APPROVAL AT THE SECRETARIAL LEVEL; MAKING PAYMENT TO THE PARENT ONLY ON PAID VOUCHERS SUBMITTED BY HIM; AND LIMITING THE AMOUNT OF SUCH PAYMENT WITHIN THE AVERAGE WHICH WAS APPLIED ADMINISTRATIVELY UNTIL THE PRESENT FISCAL YEAR, WHEN IT BECAME A STATUTORY AVERAGE APPLICABLE UNDER NAVY APPROPRIATIONS.

WITH RESPECT TO THE CLAIM OF COLONEL RICH, IT NOW IS SHOWN THAT REIMBURSEMENT OF THE EXPENSES INCURRED BY HIM WAS APPROVED MARCH 6, 1953, BY THE ASSISTANT SECRETARY OF THE NAVY FOR AIR IN THE AMOUNT OF $26.39 FOR THE FISCAL YEAR 1951 AND IN THE AMOUNT OF $167.36 FOR THE FISCAL YEAR 1952. IT IS STATED FURTHER, HOWEVER, THAT " IN THE GREAT MAJORITY OF CASES OF THIS SORT, THE MATTER IS PRESENTED TO THE SECRETARY FOR HIS APPROVAL BEFORE THE CHILDREN INVOLVED ARE ENROLLED IN SCHOOL.'

THE AUTHORITY FOR PROVIDING SCHOOLING FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE NAVY DURING THE FISCAL YEAR 1951 WAS CONTAINED IN SECTION 620 OF THE GENERAL APPROPRIATION ACT, 1951, APPROVED SEPTEMBER 6, 1950, 64 STAT. 595, 755, IN PERTINENT PART, AS FOLLOWS:

APPROPRIATIONS FOR THE NAVY FOR THE CURRENT FISCAL YEAR SHALL BE AVAILABLE FOR * * * CONTRIBUTIONS FOR THE SUPPORT OF SCHOOLS FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE AS AUTHORIZED BY SECTION 13 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 421D).

THE CITED SECTION 13 OF THE ACT OF AUGUST 2, 1946, PROVIDES AS FOLLOWS:

THE SECRETARY OF THE NAVY MAY, OUT OF FUNDS SPECIFICALLY APPROPRIATED FOR THAT PURPOSE, CONTRIBUTE TO THE SUPPORT OF SCHOOLS IN LOCALITIES WHERE NAVAL ACTIVITIES ARE LOCATED IF HE FINDS THAT THE SCHOOLS, IF ANY, AVAILABLE IN THE LOCALITY ARE NOT ADEQUATE FOR THE WELFARE OF DEPENDENTS OF PERSONNEL OF THE NAVAL ESTABLISHMENT STATIONED AT THE ACTIVITY, AND MAY PROVIDE FOR THE TRANSPORTATION OF SUCH DEPENDENTS BETWEEN THE SCHOOLS AND THE ACTIVITIES WHEN SUCH SCHOOLS ARE NOT ACCESSIBLE TO SUCH DEPENDENTS BY REGULAR MEANS OF TRANSPORTATION.

IN LETTER DATED MARCH 5, 1946, FROM THE SECRETARY OF THE NAVY TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, TRANSMITTING THE PROPOSED BILL WHICH BECAME THE ACT OF AUGUST 2, 1946, 60 STAT. 854, IT WAS STATED, IN PART, THAT---

THE PURPOSE OF THE PROPOSED LEGISLATION IS TO ENACT INTO SUBSTANTIVE LAW IN PROPER FORM PROVISIONS OF A LEGISLATIVE NATURE APPEARING IN THE NAVAL APPROPRIATION ACT, 1946, AND RELATED APPROPRIATION ACTS. THE BILL WAS PREPARED IN SPECIFIC RESPONSE TO THE BUREAU OF THE BUDGET'S BULLETIN NO. 1944-45:10 OF MARCH 28, 1945, WHICH DIRECTED THE REVIEW OF THE LANGUAGE OF APPROPRIATION ACTS TO ASCERTAIN WHAT PROVISIONS ARE LEGISLATIVE IN NATURE AND HENCE SUBJECT TO A POINT OF ORDER AND THE PREPARATION OF THE NECESSARY CURATIVE LEGISLATION.

IN APPENDIX A TO THAT LETTER, SECTION 13 OF THE PROPOSED BILL WAS EXPLAINED AS FOLLOWS:

THIS SECTION WOULD PROVIDE STATUTORY AUTHORITY FOR APPROPRIATIONS FOR THE SUPPORT OF SCHOOLS IN LOCALITIES WHERE THE SCHOOL FACILITIES, IF ANY, ARE INADEQUATE FOR NAVAL ACTIVITIES IN THE LOCALITY. HOWEVER, SPECIFIC APPROPRIATIONS FOR THE PURPOSE WILL STILL BE REQUIRED. THE APPROPRIATION " ORDNANCE AND ORDNANCE STORES" NOW SUPPORTS FOUR SCHOOLS, THE APPROPRIATION " AVIATION, NAVY," SUPPORTS ONE SCHOOL, AND THE APPROPRIATION " GENERAL EXPENSES, MARINE CORPS," SUPPORTS AN UNSPECIFIED NUMBER OF SCHOOLS. PRIOR TO THE WAR THE APPROPRIATION " WELFARE AND RECREATION" SUPPORTED SEVERAL SCHOOLS AT NAVAL ACTIVITIES LOCATED OUTSIDE THE CONTINENTAL UNITED STATES.

FOR THE PRESENT FISCAL YEAR, THE NAVY APPROPRIATION FOR SUCH PURPOSES WAS MERGED WITH THOSE FOR THE ARMY AND AIR FORCE IN SECTION 614 OF THE " DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954," 67 STAT. 351, AS FOLLOWS:

APPROPRIATIONS FOR THE DEPARTMENT OF DEFENSE FOR THE CURRENT FISCAL YEAR SHALL BE AVAILABLE (A) EXCEPT AS AUTHORIZED BY THE ACT OF SEPTEMBER 30, 1950 (20 U.S.C. 236-244), FOR PRIMARY AND SECONDARY SCHOOLING FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE RESIDING ON MILITARY OR NAVAL INSTALLATIONS OR STATIONED IN FOREIGN COUNTRIES, AS AUTHORIZED FOR THE NAVY BY SECTION 13 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 421D) IN AMOUNTS NOT EXCEEDING AN AVERAGE OF $225 PER STUDENT, WHEN THE SECRETARY OF THE DEPARTMENT CONCERNED FINDS THAT SCHOOLS, IF ANY, AVAILABLE IN THE LOCALITY, ARE UNABLE TO PROVIDE ADEQUATELY FOR THE EDUCATION OF SUCH DEPENDENTS; * * *

THE ADMINISTRATIVE REGULATIONS ISSUED BY THE ARMY AND AIR FORCE PROVIDE THAT THE EDUCATION OF DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL STATIONED IN FOREIGN COUNTRIES IS TO BE EFFECTED BY COMMANDERS OF INSTALLATIONS THROUGH (1) SERVICE OPERATED SCHOOLS, (2) SERVICE CONTRACT SCHOOLS WHEN SERVICE OPERATED SCHOOLS ARE NOT AVAILABLE, AND (3) CORRESPONDENCE SCHOOLS WHEN NEITHER SERVICE OPERATED NOR SERVICE CONTRACT SCHOOLS ARE AVAILABLE. ALSO, IT IS UNDERSTOOD THAT INSTRUCTIONS WERE ISSUED DECEMBER 17, 1953, STATING THAT IT HAD BEEN THE POLICY OF THE NAVY IN PROVIDING FINANCIAL ASSISTANCE FOR DEPENDENTS' EDUCATION UNDER THE AUTHORITY OF SECTION 13 OF THE ACT OF AUGUST 2, 1946, TO USE NAVY OPERATED SCHOOLS, ARMY AND AIR FORCE OPERATED SCHOOLS AND PRIVATELY OPERATED SCHOOLS.

THIS OFFICE HAS TWO VOUCHERS PAID BY A NAVAL DISBURSING OFFICER IN LONDON, ENGLAND, IN JULY 1953 ( NOS. 127 AND 467, JULY 1953 ACCOUNT OF LIEUTENANT B. J. HACKENSON) INVOLVING THIS SUBJECT. THE FIRST VOUCHER COVERS PAYMENT OF $62.05 FOR SUMMER TERM TUITION AND TEXTBOOKS FOR JOHN SCHLACKS, THE SON OF COMMANDER W. J. SCHLACKS, AT LADY EDEN'S SCHOOL, 39 VICTORIA ROAD, LONDON. THE OTHER VOUCHER COVERS PAYMENT OF $65.07 FOR SUMMER TERM TUITION AND STATIONERY FOR EVELYN MCILWRAITH, THE DAUGHTER OF COMMANDER C. G. MCILWRAITH, AT BYRON HOUSE SCHOOL, NORTH GROVE, LONDON. THE SCHOOL'S INVOICE IN EACH CASE WAS ADDRESSED TO THE PARENT. ON THE FIRST VOUCHER, THE DISBURSING OFFICER PAID THE SCHOOL. ON THE OTHER VOUCHER, THE OFFICER PARENT HAD PAID THE SCHOOL AND THE DISBURSING OFFICER REIMBURSED THE PARENT. THE VOUCHERS ARE SUPPORTED BY LIKE COPIES OF A MIMEOGRAPHED FORM OF CERTIFICATE SIGNED ONLY BY THE PARENT, CONTAINING THE FOLLOWING PRINTED STATEMENT:

3. I HEREBY CERTIFY THAT NO OTHER ADEQUATE EDUCATIONAL FACILITIES, EITHER FREE OR AT LESSER COST, WERE AVAILABLE WITHIN A REASONABLE DISTANCE OF MY RESIDENCE * * * .

IT SEEMS APPARENT THAT IN THESE CASES THE OFFICER PARENTS, WITHOUT REFERENCE TO HIGHER AUTHORITY, MADE THEIR OWN PRIVATE ARRANGEMENTS WITH PRIVATE SCHOOLS IN LONDON FOR THE ATTENDANCE OF THEIR CHILDREN AND THEN HAD THE TUITION BILLS PAID BY A NAVAL DISBURSING OFFICER, ON THEIR OWN STATEMENTS THAT NO ADEQUATE FACILITIES AT A LESSER COST WERE AVAILABLE WITHIN A REASONABLE DISTANCE OF THEIR RESIDENCES. THE USE OF THE MIMEOGRAPHED FORM OF CERTIFICATE INDICATES THAT THESE WERE NOT ISOLATED CASES BUT WERE REPRESENTATIVE OF THE EXISTING PRACTICE IN THAT AREA.

THIS METHOD OF PERMITTING THE PARENTS TO MAKE THEIR OWN DETERMINATIONS AND ARRANGEMENTS FOR THE PRIVATE SCHOOLING OF THEIR CHILDREN AT GOVERNMENT EXPENSE MIGHT BE VIEWED AS ONE MEANS OF ACCOMPLISHING THE PURPOSE OF THE APPROPRIATION, BUT IT IS NOT THE METHOD PRESCRIBED OR CONTEMPLATED BY THE GOVERNING STATUTE. THE APPROPRIATIONS ARE EXPRESSLY FOR EXPENDITURE ONLY AS AUTHORIZED BY SECTION 13 OF THE ACT OF AUGUST 2, 1946, QUOTED ABOVE. THAT STATUTE GOES NO FURTHER THAN TO AUTHORIZE THE SECRETARY OF THE NAVY TO CONTRIBUTE TO THE SUPPORT OF SCHOOLS IN LOCALITIES WHERE NAVAL ACTIVITIES ARE LOCATED IF HE FINDS THAT THE SCHOOLS AVAILABLE IN THE LOCALITY ARE INADEQUATE. THAT SEEMS CLEARLY TO CONTEMPLATE THAT ANY NECESSARY AGREEMENTS OR ARRANGEMENTS WITH THE SCHOOLS WILL BE MADE BY APPROPRIATE ADMINISTRATIVE OFFICERS AFTER A PROPER ADMINISTRATIVE DETERMINATION HAD BEEN MADE THAT EXISTING FACILITIES ARE NOT ADEQUATE. UNDER THE STATUTE, A PARENT HAS NO AUTHORITY BY PRIVATE AGREEMENT TO OBLIGATE THE GOVERNMENT TO PAY HIS CHILD'S TUITION, NOR IS IT PERCEIVED HOW HIS PRIVATE DEBT UNDER SUCH AN AGREEMENT COULD LEGALLY BE TRANSFERRED TO THE GOVERNMENT, OR HOW A LEGAL RIGHT TO REIMBURSEMENT COULD BE CREATED, BY SUBSEQUENT ADMINISTRATIVE APPROVAL OF THE PRIVATE TRANSACTION. AS TO THE SUGGESTION THAT THE PARENTS MAY ACT AS AGENTS FOR THE GOVERNMENT, THERE IS NO INDICATION THAT THEY HAVE BEEN APPOINTED CONTRACTING OFFICERS OR THAT AUTHORITY HAS BEEN DELEGATED TO THEM TO ACT FOR THE SECRETARY IN MAKING THE REQUIRED DETERMINATIONS. ALSO, IT WOULD APPEAR AS AGAINST PUBLIC POLICY FOR THEM TO ACT IN THAT CAPACITY IN TRANSACTIONS INVOLVING THEIR OWN PERSONAL AFFAIRS.

THE SUBJECT HAS BEEN GIVEN CAREFUL CONSIDERATION, BUT SINCE THE PROVISIONS OF SECTION 13 OF THE ACT OF AUGUST 2, 1946, AND THE RELATED APPROPRIATION PROVISIONS MUST BE VIEWED AS CONTEMPLATING THAT ARRANGEMENTS FOR ANY ADDITIONAL SCHOOL FACILITIES NEEDED FOR DEPENDENTS OF DEFENSE PERSONNEL STATIONED OVERSEAS ARE TO BE MADE BY THE DEPARTMENT CONCERNED, AFTER APPROPRIATE ADMINISTRATIVE DETERMINATION OF THE NEED, THIS OFFICE MAY NOT CONCLUDE THAT THE PRACTICE DISCUSSED IN YOUR LETTER IS AUTHORIZED BY EXISTING LAW. IF, IN DRAFTING THE LANGUAGE OF SECTION 13 OF THE ACT OF AUGUST 2, 1946, IT WAS THE PURPOSE OF THE NAVY TO PAY TUITION CHARGES PERSONALLY INCURRED BY MILITARY PERSONNEL FOR THEIR CHILDREN, THAT PURPOSE WAS NOT DISCLOSED EITHER IN THE LANGUAGE OF THE SECTION OR IN ITS LEGISLATIVE HISTORY. ACCORDINGLY, WHILE PAYMENTS HERETOFORE MADE UNDER THE PROCEDURE DESCRIBED IN YOUR LETTER WILL NOT BE QUESTIONED, IF OTHERWISE PROPER, THE CLAIM OF COLONEL RICH AND OTHER SIMILAR CLAIMS MAY NOT BE ALLOWED UNDER THE STATUTORY PROVISIONS NOW IN EFFECT.