B-162343, OCTOBER 2, 1967, 47 COMP. GEN. 187

B-162343: Oct 2, 1967

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WHO ON CONVALESCENT LEAVE BECAUSE OF INJURIES INCURRED WHILE ON TEMPORARY DETAIL IS RECEIVING FULL PAY AND ALLOWANCES FROM THE ACADEMY. IS NOT ELIGIBLE UNDER PARAGRAPH 4 (A) ARMY REGULATIONS 621-5 FOR THE FINANCIAL ASSISTANCE PROVIDED ACTIVE DUTY PERSONNEL TO ATTEND A CIVILIAN SCHOOL OR COLLEGE. IS UNABLE TO QUALIFY FOR ASSISTANCE AS A COMMISSIONED OFFICER. FOR UNTIL HIS PHYSICAL CONDITION IS DETERMINED AND HE IS COMMISSIONED THERE IS NO ASSURANCE HE WOULD BE ABLE TO MEET THE AT LEAST 2 YEARS ACTIVE SERVICE AFTER COMPLETION OF THE TRAINING REQUIREMENT IMPOSED ON COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES. 1967: REFERENCE IS MADE TO LETTER DATED AUGUST 22. IT APPEARS THAT CADET SEARS IS ON CONVALESCENT LEAVE BECAUSE OF INJURIES INCURRED WHILE ON A TEMPORARY DETAIL.

B-162343, OCTOBER 2, 1967, 47 COMP. GEN. 187

MILITARY PERSONNEL - TRAINING - CIVILIAN SCHOOLS - ELIGIBILITY A UNITED STATES MILITARY ACADEMY 1967 GRADUATE, CONSIDERED A MEMBER OF THE REGULAR ARMY PURSUANT TO 10 U.S.C. 3075 (B) (2), WHO ON CONVALESCENT LEAVE BECAUSE OF INJURIES INCURRED WHILE ON TEMPORARY DETAIL IS RECEIVING FULL PAY AND ALLOWANCES FROM THE ACADEMY, IS NOT ELIGIBLE UNDER PARAGRAPH 4 (A) ARMY REGULATIONS 621-5 FOR THE FINANCIAL ASSISTANCE PROVIDED ACTIVE DUTY PERSONNEL TO ATTEND A CIVILIAN SCHOOL OR COLLEGE, AS THE CADET, NEITHER AN ENLISTED MAN NOR A WARRANT OFFICER, IS UNABLE TO QUALIFY FOR ASSISTANCE AS A COMMISSIONED OFFICER, FOR UNTIL HIS PHYSICAL CONDITION IS DETERMINED AND HE IS COMMISSIONED THERE IS NO ASSURANCE HE WOULD BE ABLE TO MEET THE AT LEAST 2 YEARS ACTIVE SERVICE AFTER COMPLETION OF THE TRAINING REQUIREMENT IMPOSED ON COMMISSIONED OFFICERS OF THE UNIFORMED SERVICES.

TO THE SECRETARY OF THE ARMY, OCTOBER 2, 1967:

REFERENCE IS MADE TO LETTER DATED AUGUST 22, 1967, FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, (FILE REFERENCE AGMG-G) WITH ENCLOSURES, REQUESTING OUR VIEWS AS TO THE ELIGIBILITY OF CADET STEPHEN R. SEARS, A 1967 GRADUATE OF THE U.S. MILITARY ACADEMY, FOR TUITION ASSISTANCE UNDER THE CIRCUMSTANCES DESCRIBED.

IT APPEARS THAT CADET SEARS IS ON CONVALESCENT LEAVE BECAUSE OF INJURIES INCURRED WHILE ON A TEMPORARY DETAIL. IN THE LETTER IT IS STATED THAT HE IS CURRENTLY DRAWING FULL PAY AND ALLOWANCES FROM THE U.S. MILITARY ACADEMY AND WILL CONTINUE TO DO SO UNTIL TERMINATION OF HIS CONVALESCENT LEAVE AND A DETERMINATION IS MADE OF HIS PHYSICAL QUALIFICATION FOR DUTY AS A COMMISSIONED OFFICER.

DURING THE CONVALESCENT LEAVE PERIOD, CADET SEARS SAYS HE WOULD LIKE TO ATTEND CLASSES IN A CIVILIAN SCHOOL OR COLLEGE AND HAS APPLIED FOR FINANCIAL ASSISTANCE THROUGH THE ARMY'S TUITION AID PROGRAM AS SET FORTH IN PARAGRAPH 14B, ARMY REGULATIONS 621-5. THAT REGULATION IS BASED ON LANGUAGE INCLUDED ANNUALLY IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT UNDER THE HEADING ,OPERATION AND MAINTENANCE, ARMY" AND PROVIDES THAT APPROPRIATED FUNDS MAY BE USED TO PAY UP TO 75 PERCENT OF TUITION COSTS, OR FEES IN LIEU OF TUITION COSTS, NOT TO EXCEED SPECIFIED AMOUNTS, FOR ARMY PERSONNEL ATTENDING OFF-DUTY CLASSES CONDUCTED BY ACCREDITED CIVILIAN SCHOOLS AND COLLEGES.

THE ADJUTANT GENERAL SAYS THAT THE REGULATION IS NOT DEFINITIVE WITH RESPECT TO THE ELIGIBILITY OF CADETS FOR TUITION ASSISTANCE. THEREFORE, HE REQUESTS OUR OPINION AS TO WHETHER CADET SEARS IS ELIGIBLE FOR SUCH TUITION ASSISTANCE.

SECTION 3075 (B) (2) OF TITLE 10, U.S. CODE, PROVIDES THAT THE REGULAR ARMY INCLUDES CADETS OF THE U.S. MILITARY ACADEMY. WITH RESPECT TO THE STATUS OF A CADET IN THE U.S. MILITARY ACADEMY IN CONNECTION WITH ELIGIBILITY OF SUCH CADET TO ACCEPT EMPLOYMENT WITH A GOVERNMENT AGENCY, WE HAVE CONSISTENTLY HELD THAT A CADET IS A MEMBER OF THE REGULAR ARMY, AND THEREFORE THE HOLDING OF A CIVILIAN POSITION WOULD BE INCOMPATIBLE WITH HIS MILITARY DUTY. SEE DECISION OF FEBRUARY 10, 1967, B-160805, TO THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION AND DECISIONS CITED THEREIN. SEE ALSO, MINNICH V. WORLD WAR II SERVICE COMPENSATION BOARD, 57 N.W. 2D 803, 804. HOWEVER, WHILE A CADET IS A MEMBER OF THE ARMY, THE LAWS EXTENDING CERTAIN PAY AND ALLOWANCES TO MEMBERS OF THE ARMY GENERALLY DO NOT APPLY TO CADETS. FOR EXAMPLE, 37 U.S.C. 504 PROVIDES THAT THE LEAVE PROVISIONS IN 37 U.S.C. 501-503 ARE NOT APPLICABLE TO CADETS. ALSO, CADETS ARE NOT ENTITLED TO PAY AT THE RATES PRESCRIBED IN 37 U.S.C. 203 FOR COMMISSIONED OFFICERS, WARRANT OFFICERS AND ENLISTED MEMBERS, BUT SECTION 201 (C) PROVIDES THAT THEY ARE ENTITLED TO MONTHLY PAY AT THE RATE OF 50 PERCENT OF THE BASIC PAY OF A COMMISSIONED OFFICER IN PAY GRADE O-1 WITH TWO OR LESS YEARS OF SERVICE.

PARAGRAPH 4 (A), ARMY REGULATIONS 621-5 PROVIDES THAT THE GENERAL EDUCATIONAL GOALS FOR PERSONNEL ON ACTIVE DUTY ARE FOR (1) COMMISSIONED PERSONNEL, THE COMPLETION OF AT LEAST A BACCALAUREATE DEGREE AT A COLLEGE ACCREDITED BY A REGIONAL ASSOCIATION; (2) WARRANT OFFICERS, THE ACHIEVEMENT OF AT LEAST THE EQUIVALENCY OF 2 YEARS OF COLLEGE, AND (3) ENLISTED PERSONNEL, COMPLETION OF HIGH SCHOOL (OR EQUIVALENT AS MEASURED BY THE USAFIGED TESTS). IT FURTHER PROVIDES THAT THE ABOVE GOALS ARE MINIMUM STANDARDS FOR MILITARY PERSONNEL, AND THAT THE MAIN OBJECTIVE IS TO BRING EVERY MEMBER OF THE ARMY AS NEARLY AS POSSIBLE TO HIS MAXIMUM PERFORMANCE POTENTIAL.

FROM THE FOREGOING, IT APPEARS THAT THE REGULATION PROVIDES AN OPPORTUNITY FOR COMMISSIONED AND WARRANT OFFICERS AND ENLISTED PERSONNEL ON ACTIVE DUTY TO PARTICIPATE IN THE PROGRAM AND WAS NOT INTENDED TO HAVE ANY APPLICATION TO CADETS WHO, BEING FULL TIME STUDENTS AT THE U.S. MILITARY ACADEMY, WOULD HAVE NO TIME OR NEED TO TAKE COURSES IN CIVILIAN EDUCATIONAL INSTITUTIONS.

MOREOVER, PARAGRAPH 1, SECTION 1 OF THE REGULATION STATES THAT THE PURPOSE IS TO ESTABLISH POLICIES AND AUTHORIZE THE USE OF FUNDS FOR GENERAL EDUCATIONAL DEVELOPMENT OF MILITARY PERSONNEL ON ACTIVE DUTY. WITH RESPECT TO PERSONNEL ATTENDING OFF-DUTY CIVILIAN SCHOOLS, PARAGRAPH 14B (1) PROVIDES THAT ENLISTED MEMBERS AND WARRANT OFFICERS ARE ELIGIBLE FOR TUITION ASSISTANCE WITHOUT ANY AGREEMENT TO REMAIN ON ACTIVE DUTY BEYOND COMPLETION OF THE COURSE; BUT THAT, AS REQUIRED BY A RESTRICTION IMPOSED BY A PROVISION CONTAINED IN THE "GENERAL PROVISIONS" OF THE ANNUAL APPROPRIATION ACTS, COMMISSIONED OFFICERS MUST AGREE TO REMAIN ON ACTIVE DUTY FOR A MINIMUM OF 2 YEARS AFTER COMPLETION OF THE COURSE OR COURSES. THUS, CADET SEARS WOULD NOT QUALIFY AS AN ENLISTED MEMBER OR WARRANT OFFICER AND UNTIL HIS PHYSICAL CONDITION IS DETERMINED AND HE IS COMMISSIONED THERE WOULD BE NO ASSURANCE THAT HE WOULD BE ABLE TO MEET THE STATUTORY REQUIREMENT FOR A COMMISSIONED OFFICER OF SERVING ON ACTIVE DUTY FOR AT LEAST 2 YEARS.

IN THESE CIRCUMSTANCES, IT IS OUR VIEW THAT CADET SEARS IS NOT ELIGIBLE FOR TUITION ASSISTANCE UNDER THE CITED ARMY REGULATIONS.