B-124678, AUG. 31, 1955

B-124678: Aug 31, 1955

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TO SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER DATED JUNE 28. THE AMOUNT IS CLAIMED AS TUITION FOR SCHOOLING PROVIDED BY THE SCHOOL DISTRICT FOR CHILDREN OF PERSONNEL OF THE DEPARTMENT OF THE AIR FORCE DURING THE SCHOOL YEARS 1951-52. THE AIR FORCE INFORMED THE SCHOOL DISTRICT THAT IT WAS NOT AUTHORIZED TO PAY THE TUITION COSTS. SUCH ADVICE EVIDENTLY WAS BASED ON THE REASON THAT THE ACT OF SEPTEMBER 30. THE CLAIM WAS FORWARDED BY THE AIR FORCE TO THE COMMISSIONER OF EDUCATION BY LETTER DATED MAY 23. THE OFFICE OF EDUCATION IS REQUIRED TO SET THE FINAL DATE EACH YEAR AFTER WHICH APPLICATIONS FOR ASSISTANCE FOR THE FISCAL YEAR UNDER THE ACT MAY NOT BE ACCEPTED AND CONSIDERED. IT IS FURTHER STATED THAT SINCE THE OFFICE OF EDUCATION RECEIVED NO APPLICATION UNDER PUBLIC LAW 874 FROM THE SERGEANT BLUFF CONSOLIDATED SCHOOL DISTRICT BY THE FINAL DATE (MARCH 31) DURING ANY OF THE THREE SCHOOL YEARS IT IS WITHOUT AUTHORITY TO AUTHORIZE ANY PAYMENT TO THE SCHOOL DISTRICT FOR THE YEARS IN QUESTION.

B-124678, AUG. 31, 1955

TO SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JUNE 28, 1955, FROM THE VICE COMMANDER, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDING THE CLAIM OF THE SERGEANT BLUFF CONSOLIDATED SCHOOL DISTRICT, SERGEANT BLUFF, IOWA, IN THE AMOUNT OF $15,217.53, FOR CONSIDERATION AS A MERITORIOUS CLAIM FOR REPORTING TO CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236. THE AMOUNT IS CLAIMED AS TUITION FOR SCHOOLING PROVIDED BY THE SCHOOL DISTRICT FOR CHILDREN OF PERSONNEL OF THE DEPARTMENT OF THE AIR FORCE DURING THE SCHOOL YEARS 1951-52, 1952-53, AND 1953-54.

IT APPEARS FROM THE RECORD THAT A LOCAL AIR FORCE REPRESENTATIVE ADVISED OFFICIALS OF THE SCHOOL DISTRICT THAT, IF THEY PROVIDED SCHOOLING FOR CHILDREN OF AIR FORCE PERSONNEL STATIONED AT AN AIR FORCE BASE IN THAT DISTRICT AND PRESENTED THE TUITION BILLS TO THE AIR FORCE, IT WOULD PAY THEM. THE SCHOOL DISTRICT FURNISHED THE SCHOOLING AND SUBMITTED THE TUITION BILLS AS INSTRUCTED. SUBSEQUENTLY, AFTER A PROLONGED DELAY, THE AIR FORCE INFORMED THE SCHOOL DISTRICT THAT IT WAS NOT AUTHORIZED TO PAY THE TUITION COSTS. SUCH ADVICE EVIDENTLY WAS BASED ON THE REASON THAT THE ACT OF SEPTEMBER 30, 1950, PUBLIC LAW 874, 64 STAT. 1100, AS AMENDED, 20 U.S.C. 236-244, VESTS AUTHORITY FOR PAYMENT OF THE COST OF EDUCATION FOR FEDERALLY CONNECTED CHILDREN IN THE UNITED STATES COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. MOREOVER, THE DEPARTMENT OF DEFENSE APPROPRIATION ACTS FOR THE YEARS IN QUESTION PRECLUDE PAYMENT BY THE AIR FORCE.

THE CLAIM WAS FORWARDED BY THE AIR FORCE TO THE COMMISSIONER OF EDUCATION BY LETTER DATED MAY 23, 1955, WITH A REQUEST THAT IT BE PAID UNDER THE PROVISIONS OF PUBLIC LAW 874. IN A LETTER TO THE AIR FORCE DATED MAY 31, 1955, THE CHIEF, MAINTENANCE AND OPERATIONS, SCHOOL ASSISTANCE, OFFICE OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, STATED THAT, UNDER THE ACT OF SEPTEMBER 30, 1950 (PUBLIC LAW 874), THE OFFICE OF EDUCATION IS REQUIRED TO SET THE FINAL DATE EACH YEAR AFTER WHICH APPLICATIONS FOR ASSISTANCE FOR THE FISCAL YEAR UNDER THE ACT MAY NOT BE ACCEPTED AND CONSIDERED. DURING THE THREE SCHOOL YEARS IN QUESTION MARCH 31 OF THE RESPECTIVE YEARS HAD BEEN SET BY REGULATION AS THE FINAL DATE FOR SUBMITTING APPLICATIONS. SEE 45 CFR, POCKET SUPPLEMENTS 1954 AND 1955, SECTION 105.5. IT IS FURTHER STATED THAT SINCE THE OFFICE OF EDUCATION RECEIVED NO APPLICATION UNDER PUBLIC LAW 874 FROM THE SERGEANT BLUFF CONSOLIDATED SCHOOL DISTRICT BY THE FINAL DATE (MARCH 31) DURING ANY OF THE THREE SCHOOL YEARS IT IS WITHOUT AUTHORITY TO AUTHORIZE ANY PAYMENT TO THE SCHOOL DISTRICT FOR THE YEARS IN QUESTION.

THE SCHOOL DISTRICT CONTENDS THAT APPLICATIONS FOR BENEFITS UNDER PUBLIC LAW 874 WERE NOT TIMELY FILED WITH THE OFFICE OF EDUCATION BECAUSE OF THE ERRONEOUS INFORMATION FURNISHED BY THE REPRESENTATIVE OF THE DEPARTMENT OF THE AIR FORCE. IT APPEARS THAT YOUR DEPARTMENT IS SOMEWHAT SYMPATHETIC TO THIS VIEW AND FORWARDED THE CLAIM TO US FOR CONSIDERATION UNDER THE ACT OF APRIL 10, 1928.

THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, AUTHORIZES THE COMPTROLLER GENERAL OF THE UNITED STATES TO REPORT TO THE CONGRESS WITH HIS RECOMMENDATIONS THEREON CLAIMS WHICH, IN HIS JUDGMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION OF THE CONGRESS. HOWEVER, IT HAS LONG BEEN HELD THAT THE ACT OF APRIL 10, 1928, WAS NOT INTENDED TO REVIVE CLAIMS BARRED BY STATUTORY AND REGULATORY TIME LIMITATIONS. AS WAS STATED IN 14 COMP. GEN. 324:

"WHEN A TIME LIMIT ON FILING CLAIMS IS FIXED BY LAW OR BY A REGULATION PROPER FOR PROMULGATION IN THE ADMINISTRATION OF A LAW, IT IS TO BE ASSUMED, AS TO THE FIRST, THAT THE CONGRESS HAD REASON FOR ITS ACTION AND EXPECTS OBSERVANCE THEREOF, AND, AS TO THE SECOND, THAT IT HAS OPERATED UPON SIMILAR CLAIMS AND IT WOULD BE UNFAIR TO MAKE EXCEPTIONS--- AND ESPECIALLY, RETROACTIVELY EFFECTIVE. THE ACT OF APRIL 10, 1928, SUPRA, WAS NOT INTENDED FOR EMPLOYMENT AS A MEANS TO REVIVE CLAIMS BARRED BY STATUTORY OR REGULATORY LIMITATION.'

IT MAY BE CONCEDED THAT "THE LACK OF KNOWLEDGE OF THE AIR FORCE ADVISOR AS TO PROPER CHANNELS FOR PAYMENT WAS THE CONTRIBUTING CAUSE FOR NON- PAYMENT," AS REPORTED BY THE AIR FORCE. HOWEVER, IT DOES NOT APPEAR THAT THE SCHOOL DISTRICT DILIGENTLY PRESSED THE AIR FORCE FOR SETTLEMENT. EXPLANATION OF THE PROTRACTED DELAY THE SCHOOL DISTRICT STATES "WE ASSUMED THAT THE DELAY WAS CAUSED BY THE CHANNELS THROUGH WHICH THE REQUEST HAD TO PASS.' HOWEVER, ALMOST TWO YEARS ELAPSED BEFORE THE CLAIMS WERE PRESSED TO THE POINT IT WAS DETERMINED THEY WERE NOT PAYABLE BY THE AIR FORCE. HOWEVER, BE THAT AS IT MAY IN VIEW OF THE ABOVE REFERRED TO LONG STANDING HOLDING OF THIS OFFICE, THE REQUEST THAT THE CLAIM BE SUBMITTED TO CONGRESS BY US UNDER THE ACT OF APRIL 10, 1928, MUST BE AND IS DENIED.