B-144647, JANUARY 26, 1961, 40 COMP. GEN. 430

B-144647: Jan 26, 1961

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THE REQUEST WAS ASSIGNED SUBMISSION NO. THE ASSISTANT SECRETARY SAYS THERE ARE APPROXIMATELY 15 MARINE CORPS OFFICERS ON ACTIVE DUTY HOLDING LAW DEGREES WHO CANNOT BE CERTIFIED UNDER THE PROVISIONS OF ARTICLES 26 AND 27. BECAUSE THEY ARE NOT MEMBERS OF A STATE OR DISTRICT OF COLUMBIA BAR. HE SAYS THE MARINE CORPS IS DESIROUS OF USING THE TALENT OF ITS OFFICERS HOLDING LAW DEGREES WHO ARE NOT MEMBERS OF THE BAR. IT IS PROPOSED THAT OFFICERS HOLDING LAW DEGREES BE AFFORDED THE OPPORTUNITY TO ATTEND LAW REFRESHER COURSES AND APPROPRIATE BAR EXAMINATIONS ON A TEMPORARY DUTY BASIS. IT IS CONTENDED THAT THE USE OF APPROPRIATED FUNDS TO PAY SUCH COSTS WOULD NOT BE FOR LEGAL TRAINING BUT MERELY FOR CERTIFICATION.

B-144647, JANUARY 26, 1961, 40 COMP. GEN. 430

MILITARY PERSONNEL - TRAINING - LEGAL TRAINING PROHIBITION - BAR REVIEWS THE ENROLLMENT IN LAW REFRESHER COURSES BY MARINE CORPS OFFICERS WHO HOLD LAW DEGREES AND THE TAKING OF BAR EXAMINATIONS MUST BE CONSIDERED AS FOR THE PURPOSE OF QUALIFYING THE OFFICERS AS LAWYERS AND THEREFORE WITHIN THE PROHIBITION IN SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 74 STAT. 352, AGAINST THE USE OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION SO THAT PAY AND ALLOWANCES, PER DIEM, TRAVEL EXPENSES AND TUITION FOR SUCH OFFICERS ATTENDING LAW REFRESHER COURSES AND TAKING BAR EXAMINATIONS MAY NOT BE AUTHORIZED.

TO THE SECRETARY OF THE NAVY, JANUARY 26, 1961:

ON NOVEMBER 29, 1960, THE ASSISTANT SECRETARY OF THE NAVY REQUESTED OUR DECISION AS TO WHETHER OFFICERS HOLDING LAW DEGREES MAY BE PAID PAY AND ALLOWANCES, PER DIEM, TRAVEL EXPENSES, TUITION, AND BAR EXAMINATION FEES DURING A MAXIMUM PERIOD OF THREE MONTHS WHILE ATTENDING LAW REFRESHER COURSES AND TAKING APPROPRIATE BAR EXAMINATIONS FOR THE PURPOSE OF QUALIFYING AS MILITARY LAWYERS. THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-N ( MC/--- 532 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, AND PDTATAC CONTROL NO. 60-39, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY SAYS THERE ARE APPROXIMATELY 15 MARINE CORPS OFFICERS ON ACTIVE DUTY HOLDING LAW DEGREES WHO CANNOT BE CERTIFIED UNDER THE PROVISIONS OF ARTICLES 26 AND 27, 10 U.S.C. 826-827, BECAUSE THEY ARE NOT MEMBERS OF A STATE OR DISTRICT OF COLUMBIA BAR. HE SAYS THE MARINE CORPS IS DESIROUS OF USING THE TALENT OF ITS OFFICERS HOLDING LAW DEGREES WHO ARE NOT MEMBERS OF THE BAR. THEREFORE, IT IS PROPOSED THAT OFFICERS HOLDING LAW DEGREES BE AFFORDED THE OPPORTUNITY TO ATTEND LAW REFRESHER COURSES AND APPROPRIATE BAR EXAMINATIONS ON A TEMPORARY DUTY BASIS, IF NECESSARY, IN ORDER TO QUALIFY FOR CERTIFICATION. UNDER THIS PROPOSAL THE MARINE CORPS WOULD PAY ALL THE COSTS INVOLVED SUCH AS PAY AND ALLOWANCES, PER DIEM, TUITION, TRAVEL COST, AND BAR EXAMINATION FEES, AND THE OFFICERS SO ASSIGNED WOULD BE REQUIRED TO EXTEND THEIR OBLIGATED SERVICE BY AT LEAST ONE YEAR AND SERVE IN A LEGAL CAPACITY. IT IS CONTENDED THAT THE USE OF APPROPRIATED FUNDS TO PAY SUCH COSTS WOULD NOT BE FOR LEGAL TRAINING BUT MERELY FOR CERTIFICATION; THAT LEGAL TRAINING IN SUCH CASES IS AN ACCOMPLISHED FACT, AND THAT CERTIFICATION IS A REQUIREMENT NECESSARY TO MARINE CORPS USE OF SUCH TRAINING.

SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 74 STAT. 352, PROVIDES THAT NONE OF THE FUNDS PROVIDED BY THAT ACT SHALL BE AVAILABLE FOR TRAINING IN ANY LEGAL PROFESSION, OR FOR THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION, PROVIDED THAT THIS LIMITATION SHALL NOT APPLY TO THE OFF-DUTY TRAINING OF MILITARY PERSONNEL AS PRESCRIBED BY SECTION 521 OF THE ACT, 74 STAT. 353. A SIMILAR PROVISION PROHIBITING "TRAINING IN ANY LEGAL PROFESSION" HAS BEEN IN DEPARTMENT OF DEFENSE APPROPRIATION ACTS FOR A NUMBER OF YEARS- - THE FIRST HAVING BEEN INCLUDED IN THE APPROPRIATION ACT FOR 1953, 66 STAT. 537. AS STATED IN DECISION OF JULY 29, 1959, 39 COMP. GEN. 58, THE LEGISLATIVE HISTORY OF THE PROVISION CLEARLY SHOWS ITS INTENDED PURPOSE IS TO PROHIBIT THE TRAINING OF INDIVIDUALS "FOR THE PURPOSE OF QUALIFYING THEM AS LAWYERS.' IN THAT DECISION, INVOLVING SPECIALIZED COURSES OF INSTRUCTION FOR QUALIFIED ATTORNEYS EMPLOYED AS SUCH BY THE DEPARTMENT OF DEFENSE, WE SAID THAT "1WHILE THE PROHIBITION IS INTENDED PRIMARILY TO PRECLUDE FINANCING BY THE GOVERNMENT OF LAW DEGREES FOR INDIVIDUALS AND COURSES ATTENDED BY QUALIFIED ATTORNEYS WOULD NOT NORMALLY BE INCLUDED THEREIN, THAT IS NOT TO SAY THAT TRAINING ON A HIGHER LEVEL WOULD BE AUTOMATICALLY EXEMPTED FROM THE PROHIBITION.' THE ASSISTANT SECRETARY SAYS QUESTIONS HAVE ARISEN AS TO THE APPLICATION OF THE STATEMENT IN CONNECTION WITH THE PROPOSED EXPENDITURE FOR THE PURPOSE OF QUALIFYING THE OFFICERS AS MILITARY LAWYERS.

ASIDE FROM THE STATUTORY PROHIBITION HERE INVOLVED, IT LONG HAS BEEN THE VIEW THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, AN AGENCY OF THE GOVERNMENT MAY ASSIGN ITS OFFICERS AND EMPLOYEES TO ATTEND COURSES OF INSTRUCTION OR TRAINING IN NON-FEDERAL FACILITIES AND PAY THEIR TUITION, PER DIEM, AND RELATED COSTS ONLY ON A SHOWING THAT THE PARTICULAR TRAINING INVOLVED (1) WAS SPECIAL IN NATURE AND WAS FOR A PERIOD OF LIMITED DURATION, (2) WAS ESSENTIAL TO CARRY OUT THE PURPOSE FOR WHICH THE APPROPRIATION INVOLVED WAS MADE, AND (3) WAS NOT OF A TYPE WHICH THE EMPLOYEE WOULD NORMALLY BE EXPECTED TO FURNISH AT HIS OWN EXPENSE. SEE 34 COMP. GEN. 631 AND 36 ID. 621 AND THE DECISIONS CITED THEREIN. COMPARE 34 COMP. GEN. 587.

IN THE PRESENT CASE, THE REFRESHER COURSE AND BAR EXAMINATION WOULD NOT BE FOR THE PURPOSE OF GIVING QUALIFIED OFFICERS SPECIALIZED TRAINING OR INSTRUCTION IN SUBJECTS RELATING TO THEIR PRESENT DUTIES WITHIN THE CONTEMPLATION OF OUR DECISION OF JULY 29, 1959, 39 COMP. GEN. 58. THE ASSISTANT SECRETARY SAYS IT IS GENERALLY RECOGNIZED THAT ATTENDING A LAW REFRESHER COURSE IS NECESSARY PRIOR TO TAKING A BAR EXAMINATION, THE FAILURE RATE BEING EXTREMELY HIGH AMONG THOSE INDIVIDUALS WHO HAVE NOT COMPLETED SUCH A COURSE. ON THAT BASIS, AND SINCE A REFRESHER COURSE IS UNDERSTOOD TO COVER GENERALLY THE ENTIRE FIELD OF LAW OF WHICH IT IS EXPECTED THE BAR EXAMINATION WILL BE GIVEN, IT IS EVIDENT THAT ENROLLMENT IN THE COURSE AND TAKING A BAR EXAMINATION CLEARLY WOULD BE FOR THE PURPOSE OF QUALIFYING THE OFFICERS AS LAWYERS AND, THUS, FALL WITHIN THE PROHIBITION CONTAINED IN THE APPROPRIATION ACT. FURTHER, WE BELIEVE THAT THE BAR EXAMINATION FEE IS OF A TYPE WHICH AN OFFICER OR EMPLOYEE WOULD NORMALLY BE EXPECTED TO BEAR HIMSELF. THEREFORE, OUR VIEW IS THAT THE EXPENDITURE OF APPROPRIATED FUNDS FOR THE PROPOSED PURPOSE IS NOT AUTHORIZED.