B-119988, SEPTEMBER 20, 1954, 34 COMP. GEN. 126

B-119988: Sep 20, 1954

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UNIVERSITIES - DEPENDENTS OF MILITARY PERSONNEL TAKING PRIVATE CORRESPONDENCE COURSES - REIMBURSEMENT OF TUITION FEES MILITARY PERSONNEL IN LOCALITIES WITHOUT ADEQUATE SCHOOLS WHO PERSONALLY ORDERED PRIVATE CORRESPONDENCE COURSES FOR THE EDUCATION OF THEIR DEPENDENTS ARE NOT ENTITLED TO BE REIMBURSED TUITION CHARGES UNDER REGULATIONS ISSUED PURSUANT TO SECTION 616 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS OF 1952 AND 1953 WHICH IN PROVIDING FOR THE PRIVATE SCHOOLING OF SUCH DEPENDENTS. REQUIRED THAT ANY AGREEMENTS WITH PRIVATE CORRESPONDENCE SCHOOLS BE MADE BY APPROPRIATE ADMINISTRATIVE OFFICERS AFTER A PROPER ADMINISTRATIVE DETERMINATION THAT EXISTING FACILITIES WERE NOT ADEQUATE. 1954: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13.

B-119988, SEPTEMBER 20, 1954, 34 COMP. GEN. 126

COLLEGES, SCHOOLS, AND UNIVERSITIES - DEPENDENTS OF MILITARY PERSONNEL TAKING PRIVATE CORRESPONDENCE COURSES - REIMBURSEMENT OF TUITION FEES MILITARY PERSONNEL IN LOCALITIES WITHOUT ADEQUATE SCHOOLS WHO PERSONALLY ORDERED PRIVATE CORRESPONDENCE COURSES FOR THE EDUCATION OF THEIR DEPENDENTS ARE NOT ENTITLED TO BE REIMBURSED TUITION CHARGES UNDER REGULATIONS ISSUED PURSUANT TO SECTION 616 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS OF 1952 AND 1953 WHICH IN PROVIDING FOR THE PRIVATE SCHOOLING OF SUCH DEPENDENTS, REQUIRED THAT ANY AGREEMENTS WITH PRIVATE CORRESPONDENCE SCHOOLS BE MADE BY APPROPRIATE ADMINISTRATIVE OFFICERS AFTER A PROPER ADMINISTRATIVE DETERMINATION THAT EXISTING FACILITIES WERE NOT ADEQUATE.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL FRANKLIN D. MOORE, SEPTEMBER 20, 1954:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1953, REQUESTING REIMBURSEMENT OF $210 PAID TO THE CALVERT SCHOOL, BALTIMORE, MARYLAND, $105 IN JANUARY 1952 AND $105 IN AUGUST 1952--- AS THE COST OF CORRESPONDENCE COURSES FOR YOUR DEPENDENT DAUGHTER CATHRYNE WHILE YOU WERE ON DUTY WITH THE U.S. ARMY MISSION IN BOLIVIA.

THE RECORD SHOWS THAT YOUR CLAIM FOR REIMBURSEMENT OF THE AMOUNT OF $105 PAID IN JANUARY 1952 WAS DISALLOWED BY SETTLEMENT DATED JUNE 15, 1953, FOR THE REASON THAT UNDER THE APPLICABLE REGULATIONS (SR-350-950 1) THE COST OF EDUCATION OF DEPENDENTS OF MILITARY PERSONNEL WAS PAYABLE TO THE INSTITUTION OR TUTOR, WHO HAD BEEN AUTHORIZED BY COMPETENT AUTHORITY TO PROVIDE THE EDUCATION, AND NOT DIRECTLY TO A MEMBER OF THE ARMED SERVICES FOR TUITION PAID BY HIM TO A PRIVATE SCHOOL ON BEHALF OF HIS DEPENDENT.

IN YOUR LETTER DATED NOVEMBER 13, 1953, REQUESTING REIMBURSEMENT OF THE TOTAL SUM OF $210, IT IS STATED THAT THE TWO CORRESPONDENCE COURSES WERE ORDERED AND PAID FOR BY YOU BECAUSE THERE WAS NO SCHOOLS IN THE LOCALITY EQUAL TO THE STANDARDS OF UNITED STATES SCHOOLS WHEREAS "THE CALVERT INSTITUTION IS AN ACCREDITED INSTITUTION.'

THE AUTHORITY FOR PAYMENT OF THE COST OF EDUCATION OF DEPENDENTS OF MILITARY PERSONNEL DURING THE FISCAL YEAR 1952 WAS CONTAINED IN SECTION 616 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 446, IN PERTINENT PART, AS FOLLOWS:

APPROPRIATIONS FOR THE AIR FORCE AND THE ARMY FOR THE CURRENT FISCAL YEAR SHALL BE AVAILABLE * * * FOR PRIMARY AND SECONDARY SCHOOLING FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE RESIDING ON MILITARY INSTALLATIONS OR STATIONED IN FOREIGN COUNTRIES, 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 * * *.

SIMILAR AUTHORITY FOR THE FISCAL YEAR 1953 WAS CONTAINED IN SECTION 616 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, 66 STAT. 533, WITH THE ADDED RESTRICTION THAT THE AVAILABILITY OF THE APPROPRIATIONS WAS LIMITED TO AMOUNTS NOT EXCEEDING AN AVERAGE OF $225 PER STUDENT.

SPECIAL REGULATIONS NO. 350-950-1, DATED DECEMBER 20, 1949 (PARAGRAPH 7) IN EFFECT DURING THE PERIOD COVERED BY YOUR CLAIMS PROVIDED FOR THE UTILIZATION OF CERTAIN CORRESPONDENCE-TYPE SCHOOLS, INCLUDING THE CALVERT SCHOOL, TUSCANY ROAD, BALTIMORE 10, MARYLAND, IN THOSE AREAS WHERE IT WAS IMPRACTICABLE TO UTILIZE AMERICAN PUBLIC OR OTHER ENGLISH-SPEAKING SCHOOLS FOR THE EDUCATION OF ELIGIBLE DEPENDENTS AND WHERE THE NUMBER OF ELIGIBLE DEPENDENTS WAS TOO SMALL TO JUSTIFY THE COST OF OPERATING AN ARMY-OPERATED SCHOOL, IT BEING PROVIDED THAT COMMANDERS MIGHT PROCURE RECOGNIZED CORRESPONDENCE-TYPE COURSES FOR ELIGIBLE DEPENDENTS AND PROVIDE FOR ANY NECESSARY SERVICES (GROUP SUPERVISORS OR PROCTORS) AND INSTRUCTIONAL MATERIALS USED IN CONNECTION THEREWITH.

THE STATUTORY AUTHORITY UNDER WHICH THE COST OF EDUCATION OF DEPENDENTS OF MILITARY PERSONNEL WAS PAYABLE DURING THE PERIOD OF YOUR CLAIMS WENT NO FURTHER THAN TO MAKE THE APPROPRIATIONS FOR THE AIR FORCE AND ARMY AVAILABLE FOR PRIMARY AND SECONDARY SCHOOLING FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE RESIDING ON MILITARY INSTALLATIONS OR STATIONED IN FOREIGN COUNTRIES, IF THE SECRETARY CONCERNED FOUND THAT THE SCHOOLS AVAILABLE IN THE LOCALITY WERE INADEQUATE. THE STATUTE IS SILENT AS TO HOW THE PURPOSE OF THE APPROPRIATIONS WAS TO BE ACCOMPLISHED. THE REGULATIONS, HOWEVER, REQUIRED THAT ANY NECESSARY AGREEMENTS OR ARRANGEMENTS WITH PRIVATE SCHOOLS WOULD BE MADE BY APPROPRIATE ADMINISTRATIVE OFFICERS (COMMANDERS), AFTER A PROPER ADMINISTRATIVE DETERMINATION HAD BEEN MADE THAT EXISTING FACILITIES WERE NOT ADEQUATE. UNDER SUCH REGULATIONS YOU HAD NO AUTHORITY TO OBLIGATE THE GOVERNMENT, BY PRIVATE AGREEMENT, TO PAY YOUR CHILD'S TUITION AND YOUR ACTION IN PAYING SUCH TUITION WAS VOLUNTARY AND IMPOSED NO LEGAL OBLIGATION ON THE UNITED STATES. THERE IS NOTHING OF RECORD TO INDICATE THAT YOU HAD BEEN APPOINTED A CONTRACTING OFFICER OR THAT AUTHORITY HAD BEEN DELEGATED TO YOU TO MAKE THE REQUIRED DETERMINATIONS. IT IS, OF COURSE, WELL SETTLED THAT THE GOVERNMENT CANNOT BE BOUND OR HELD LIABLE FOR THE ACTS OF PERSONS WHO HAVE NOT BEEN AUTHORIZED TO ACT AS ITS AGENTS. NEWMAN V. UNITED STATES, 28 F.2D 681 (CERTIORARI DENIED 279 U.S. 839) AND BEARD V. UNITED STATES, 59 F.2D 940, 941.

SINCE YOU HAVE NOT ESTABLISHED THAT ANY LIABILITY EXISTS ON THE PART OF THE GOVERNMENT TO REIMBURSE YOU FOR THE EXPENSES YOU PERSONALLY INCURRED FOR THE SCHOOLING OF YOUR CHILD DURING THE PERIODS COVERED BY YOUR CLAIMS, IT MUST BE HELD THAT THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $105 PAID IN JANUARY 1952 WAS CORRECT AND THAT YOUR CLAIM FOR $105 PAID IN AUGUST 1952 MAY NOT BE ALLOWED BY THIS OFFICE ON THE BASIS OF THE PRESENT RECORD. SEE THE ENCLOSED COPY OF DECISION OF MARCH 24, 1954, B-117922, 33 COMP. GEN. 399.