B-157989, DEC. 17, 1965, 45 COMP. GEN. 354

B-157989, DEC. 17, 1965, 45 COMP. GEN. 354

SUBSISTENCE ALLOWANCE - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - UNIT OF CHOICE NOT AT COLLEGE ATTENDED TO PERMIT A STUDENT ATTENDING A CIVILIAN EDUCATIONAL INSTITUTION THAT DOES NOT HAVE A UNIT OF THE RESERVE OFFICERS' TRAINING CORPS (ROTC) OF THE BRANCH OF THE SERVICE IN WHICH HE DESIRES MEMBERSHIP TO ENROLL IN THE SENIOR ROTC PROGRAM OF HIS CHOICE MAINTAINED AT ANOTHER INSTITUTION AND TO PAY HIM A SUBSISTENCE ALLOWANCE WOULD SERVE THE PURPOSE OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 TO IMPROVE THE ROTC PROGRAM AND TO STIMULATE CAREERS IN THE ARMED FORCES, AND THE LEGISLATIVE HISTORY INDICATING NO INTENT TO LIMIT ELIGIBLE COLLEGE STUDENTS TO MEMBERSHIP IN A PARTICULAR ROTC UNIT AT A PARTICULAR INSTITUTION, CURTAILING THE OPPORTUNITIES AVAILABLE TO PROSPECTIVE RESERVISTS INTERESTED IN A PARTICULAR SERVICE WOULD NOT BE CONSISTENT WITH THE REVITALIZING PURPOSES OF THE ACT AND IS NOT REQUIRED, THE STUDENT QUALIFICATIONS PRESCRIBED BY THE ACT FOR PARTICIPATION IN THE PROGRAM, PROTECTING THE UNITED STATES AGAINST THE FAILURE OF A STUDENT TO FULFILL HIS OBLIGATIONS; THEREFORE, A SUBSISTENCE ALLOWANCE MAY BE PAID TO A STUDENT PARTICIPATING IN A ROTC UNIT OTHER THAN THE ONE LOCATED AT THE COLLEGE HE ATTENDS.

TO THE SECRETARY OF DEFENSE, DECEMBER 17, 1965:

REFERENCE IS MADE TO THE LETTER OF NOVEMBER 5, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER A SUBSISTENCE ALLOWANCE MAY BE PAID TO A STUDENT MEMBER OF A RESERVE OFFICERS' TRAINING CORPS (ROTC) UNIT OF THE ARMED FORCE OF HIS CHOICE AT AN INSTITUTION OTHER THAN THE ONE HE ATTENDS IF THE STUDENT'S INSTITUTION HAS AN ROTC UNIT OF ANOTHER ARMED FORCE BUT NOT ONE OF THE PARTICULAR ARMED FORCE IN WHICH HE DESIRES MEMBERSHIP.

SECTION 2103 (A) OF TITLE 10, U.S. CODE, WHICH WAS ADDED BY SECTION 201 (1) OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1065, IS AS FOLLOWS:

TO BE ELIGIBLE FOR MEMBERSHIP IN THE PROGRAM A PERSON MUST BE A STUDENT AT AN INSTITUTION WHERE A UNIT OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS IS ESTABLISHED. HOWEVER, A STUDENT AT AN INSTITUTION THAT DOES NOT HAVE A UNIT OF THE CORPS IS ELIGIBLE, IF OTHERWISE QUALIFIED, TO BE A MEMBER OF A UNIT AT ANOTHER INSTITUTION.

UNDER THE PROVISIONS OF 10 U.S.C. 2102, AS ADDED BY THAT ACT, THE SECRETARY OF EACH MILITARY DEPARTMENT IS CHARGED WITH RESPONSIBILITY FOR ESTABLISHING AND MAINTAINING A SENIOR ROTC PROGRAM ORGANIZED INTO ONE OR MORE UNITS AT CERTAIN CIVILIAN EDUCATIONAL INSTITUTIONS UNDER AN AGREEMENT WITH EACH SUCH INSTITUTION.

THE JUDGE ADVOCATE GENERAL OF THE NAVY, IN AN OPINION ADDRESSED TO THE CHIEF OF NAVAL PERSONNEL UNDER DATE OF AUGUST 17, 1965, EXPRESSED THE BELIEF THAT THE PHRASE "A UNIT OF THE CORPS" AS USED IN THE ABOVE QUOTED SECTION REFERS TO A UNIT OF A SPECIFIC CORPS, EITHER ARMY, NAVY, OR AIR FORCE, AND THEREFORE THAT A STUDENT ENROLLED IN AN INSTITUTION WHICH DOES NOT HAVE A UNIT OF THE RESERVE OFFICERS' TRAINING CORPS OF THE ARMED FORCE IN WHICH HE DESIRES MEMBERSHIP MAY BE ENROLLED AS A MEMBER IN THE ROTC PROGRAM OF THE ARMED FORCE OF HIS CHOICE AT AN INSTITUTION WHICH HAS AN APPROPRIATE UNIT. THE JUDGE ADVOCATE GENERALS OF THE ARMY AND AIR FORCE HAVE EXPRESSED OPINIONS TO THE CONTRARY.

IN ARRIVING AT HIS OPINION THE JUDGE ADVOCATE GENERAL OF THE NAVY POINTED OUT THAT THE TERM ,PROGRAM" IS DEFINED IN THE 1964 LAW (10 U.S.C. 2101) AS THE "SENIOR RESERVE OFFICERS' TRAINING CORPS OF AN ARMED FORCE," WHICH INDICATES THAT THERE IS NOT A SINGLE RESERVE OFFICERS' TRAINING CORPS, BUT THAT THERE IS A CORPS FOR EACH OF THE ARMED FORCES. THE AUTHORIZATION IN 10 U.S.C. 2103 (A) FOR A STUDENT AT AN INSTITUTION "THAT DOES NOT HAVE A UNIT OF THE CORPS" TO BE A MEMBER OF A UNIT AT ANOTHER INSTITUTION WAS THEREFORE REGARDED AS REFERRING TO A SPECIFIC CORPS, NOT TO ANY CORPS, AND HENCE HE CONCLUDED THAT THE ABSENCE OF A UNIT OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS OF A PARTICULAR ARMED FORCE AT AN INSTITUTION MAKES THE STUDENTS IN ATTENDANCE THERE ELIGIBLE TO ENROLL IN A UNIT OF "THE CORPS" AT ANOTHER INSTITUTION, THAT IS, THAT A STUDENT ENROLLED IN AN INSTITUTION WHICH DOES NOT HAVE A UNIT OF THE SENIOR ROTC OF THE PARTICULAR ARMED FORCE IN WHICH THE STUDENT DESIRES MEMBERSHIP MAY BE ENROLLED AS A MEMBER IN THE ROTC PROGRAM OF THE ARMED FORCE OF HIS CHOICE AT AN INSTITUTION WHICH HAS AN APPROPRIATE UNIT.

THE JUDGE ADVOCATE GENERAL OF THE NAVY NOTED THAT THE PURPOSE OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 WAS TO IMPROVE THE ROTC PROGRAM AND TO STIMULATE CAREERS IN THE ARMED FORCES (IN ORDER TO OBTAIN ADDITIONAL NEEDED OFFICER CANDIDATES), TO ACCOMPLISH WHICH THERE WAS ESTABLISHED AN OPTIONAL 2-YEAR SENIOR ROTC PROGRAM (FOR THE LAST 2 YEARS OF COLLEGE) IN ADDITION TO THE 4-YEAR PROGRAM ALREADY IN EXISTENCE, AN INCREASE IN TRAINING PAY, EQUALIZATION OF TRAVEL PAY,AND A GENERAL INCREASE IN ASSISTANCE IN THE 4-YEAR SCHOLARSHIP PROGRAM (THERETOFORE AUTHORIZED FOR THE NAVY ONLY), WHICH WAS MADE UNIFORMLY APPLICABLE TO ALL BRANCHES OF THE ARMED FORCES. HE FOUND NO INDICATION IN THE LEGISLATIVE HISTORY OF AN INTENT TO LIMIT ELIGIBLE PERSONS AT AN EDUCATIONAL INSTITUTION TO MEMBERSHIP IN THE PARTICULAR ROTC UNIT OR UNITS ESTABLISHED AT THAT PARTICULAR INSTITUTION TO THE EXCLUSION OF THE CORPS OF AN ARMED FORCE WHICH DOES NOT HAVE A UNIT AT THAT INSTITUTION, THAT SUCH A RESTRICTIVE INTERPRETATION IS NOT REQUIRED, THAT IT WOULD CURTAIL THE OPPORTUNITIES TO PROSPECTIVE RECRUITS INTERESTED IN A PARTICULAR ARMED SERVICE, AND THAT IT WOULD NOT BE CONSISTENT WITH THE REVITALIZING PURPOSES OF THE 1964 ACT.

THE JUDGE ADVOCATE GENERAL OF THE ARMY INDICATED IN HIS OPINION THAT NEITHER AN AFFIRMATIVE NOR A NEGATIVE ANSWER TO THE QUESTION PRESENTED IS CLEARLY DICTATED BY THE LANGUAGE OF 10 U.S.C. 2103 (A), BUT HE EXPRESSED THE BELIEF THAT THE MOST LOGICAL CONCLUSION IS THAT THE CONGRESS WISHED EVERY COLLEGE STUDENT TO HAVE AN OPPORTUNITY TO ENROLL IN THE ROTC OF AN ARMED FORCE, AND MEANT TO AUTHORIZE SUCH ENROLLMENT IN AN ROTC UNIT AT A COLLEGE OTHER THAN THE ONE A STUDENT ATTENDS ONLY IF THERE IS NO UNIT OF ANY SERVICE AT HIS COLLEGE. THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE BASED HIS NEGATIVE CONCLUSION ON THE LACK OF DISTINCTION IN SECTION 2103 (A) BETWEEN SERVICE BRANCHES IN SPEAKING GENERALLY OF THE SENIOR ROTC PROGRAM TO PREPARE STUDENTS FOR COMMISSIONS IN ,THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS," AND THAT THEREFORE "A UNIT" OF THE SENIOR ROTC IN SECTION 2103 (A) IS A UNIT PREPARING STUDENTS FOR ANY OF THE FOUR BRANCHES.

IN ORDER TO QUALIFY TO RECEIVE A SUBSISTENCE ALLOWANCE FOR PARTICIPATION IN THE SENIOR ROTC PROGRAM, A STUDENT MEMBER MUST BE A CITIZEN OF THE UNITED STATES, MUST BE ENLISTED IN THE RESERVE COMPONENT OF THE ARMED FORCE CONDUCTING THE ROTC PROGRAM IN WHICH HE PARTICIPATES AS A MEMBER, MUST AGREE TO ACCEPT A COMMISSION AS AN OFFICER IF OFFERED AN APPOINTMENT AS SUCH, MUST AGREE TO SERVE ON ACTIVE DUTY FOR THE PERIOD PRESCRIBED BY LAW, AND IF HE FAILS TO COMPLETE THE COURSE OF INSTRUCTION OR TO ACCEPT A COMMISSION WHEN OFFERED ONE HE MAY BE REQUIRED TO PERFORM ACTIVE MILITARY SERVICE INVOLUNTARILY AS AN ENLISTED MEMBER OF THE RESERVE CONCERNED FOR SUCH PERIOD AS THE GOVERNMENT MAY REQUIRE, NOT IN EXCESS OF 4 YEARS. CONSEQUENTLY THE UNITED STATES IS AMPLY PROTECTED AGAINST THE FAILURE OF A STUDENT PARTICIPATING IN THE SENIOR ROTC PROGRAM TO FULFILL HIS PART OF THE BARGAIN.

IN VIEW OF SUCH PROTECTION AGAINST IRRESPONSIBILITY ON THE PART OF STUDENT PARTICIPANTS IN THE SENIOR ROTC PROGRAM AND THE PURPOSE OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 TO OBTAIN GREATER NUMBERS OF OFFICER CANDIDATES, WE THINK THAT THE ABSENCE OF ANYTHING IN THE LEGISLATIVE HISTORY OF THAT ACT INDICATING A CONTRARY INTENT IS A FACTOR OF CONSIDERABLE WEIGHT IN FAVOR OF THAT INTERPRETATION WHICH WILL RESULT IN THE GREATEST PARTICIPATION BY ELIGIBLE COLLEGE STUDENTS. WHILE THE STATUTE IS NOT SO CLEAR AS TO CAUSE THE MATTER TO BE FREE OF DOUBT, WE THINK THAT THE VIEW OF THE JUDGE ADVOCATE GENERAL OF THE NAVY REPRESENTS A TENABLE CONSTRUCTION AND ONE CONSISTENT WITH THE BROAD PURPOSE OF THE STATUTE. THEREFORE WE WOULD NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF A SUBSISTENCE ALLOWANCE TO A STUDENT WHO IS A MEMBER OF THE SENIOR ROTC PROGRAM AT ANOTHER INSTITUTION OF A DIFFERENT ARMED FORCE THAN THAT WHICH MAINTAINS AN ROTC UNIT AT THE INSTITUTION WHICH HE ATTENDS. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.