B-159429, SEPTEMBER 16, 1969, 49 COMP. GEN. 171

B-159429, SEPTEMBER 16, 1969, 49 COMP. GEN. 171

MILITARY PERSONNEL -- RESERVE OFFICERS' TRAINING CORPS -- PROGRAMS AT EDUCATIONAL INSTITUTIONS -- PHASE-OUT OF PROGRAMS MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS (ROTC) WHO COMPLETE BOTH THE THIRD AND FOURTH YEARS OF MILITARY TRAINING DURING THE THIRD YEAR AT INSTITUTIONS WHERE THE ROTC PROGRAM IS BEING PHASED OUT AND CONTINUE TO PARTICIPATE IN THE PROGRAM MAY BE PAID MONETARY BENEFITS DURING THE FOURTH ACADEMIC YEAR--THE PAYMENT APPROVAL LIMITED TO THE SENIOR ROTC PARTICIPANTS. A MEMBER WHO IN 3 YEARS COMPLETES A 4 YEAR COURSE OF MILITARY INSTRUCTION HAS FULLY PERFORMED UNDER THE ROTC ENROLLMENT CONTRACT AND HE IS ENTITLED TO THE BENEFITS PROVIDED BY THE CONTRACT, AND ALSO UNDER 10 U.S.C. 2108(C) THE SECETARY OF DEFENSE IS AUTHORIZED TO EXCUSE A MEMBER FORM A PORTION OF THE ROTC PRESCRIBED COURSE OF MILITARY INSTRUCTION WHEN FOUND QUALIFIED ON THE BASIS OF PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 16, 1969:

REFERENCE IS MADE TO LETTER OF AUGUST 27, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS MAY BE PAID MONETARY BENEFITS DURING THE FOURTH ACADEMIC YEAR IF BOTH THE THIRD AND FOURTH YEARS OF MILITARY TRAINING ARE COMPLETED BY THE MEMBERS DURING THE THIRD ACADEMIC YEAR, OBVIATING THE REQUIREMENT OF ANY FORMAL MILITARY TRAINING UNDER THE PROGRAM DURING THE FOURTH ACADEMIC YEAR ALTHOUGH THEY CONTINUE OTHERWISE A PARTICIPANT IN THE PROGRAM.

THE QUESTION, TOGETHER WITH A DISCUSSION RELATING THERETO, IS CONTAINED IN COMMITTEE ACTION NO. 434 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE COMMITTEE ACTION STATES THAT AS A MATTER OF POLICY THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT IT IS DESIRABLE THAT THE ROTC PROGRAMS, BOTH SCHOLARSHIP AND NONSCHOLARSHIP, BE TERMINATED AT CERTAIN EDUCATIONAL INSTITUTIONS AND THAT THE PLAN FOR WITHDRAWAL IS BASED ON THE PROVISIONS OF PARAGRAPH 2-13C, AR 145-1, WHICH PROVIDES FOR A 1 ACADEMIC YEAR PHASE- OUT.

THE PROBLEM ARISES IN CONNECTION WITH THOSE STUDENTS WITH WHOM THE ARMY HAS CONTRACTED AS AUTHORIZED BY LAW AND WHO ARE UNDERTAKING THE THIRD YEAR OF MILITARY TRAINING IN THE FALL OF 1969. NORMALLY, THE MILITARY TRAINING WOULD REQUIRE 2 ACADEMIC YEARS TO COMPLETE. HOWEVER, BECAUSE OF THE DECISION TO TERMINATE THE PROGRAM AT THE INSTITUTION WITHIN 1 YEAR, THE NORMAL PROCEDURE CANNOT BE FOLLOWED. WHILE A STUDENT MAY RECEIVE HIS MILITARY TRAINING AT ANOTHER INSTITUTION UNDER 10 U.S.C. 2103, IT IS STATED THAT IN AT LEAST ONE INSTANCE SUCH AN ARRANGEMENT WOULD BE COMPLETELY IMPRACTICABLE, THERE BEING NO ROTC UNIT REASONABLY AVAILABLE.

ALTHOUGH THE ROTC PROGRAM WILL BE TERMINATED AT THE INSTITUTIONS REFERRED TO ABOVE, THE DEPARTMENT OF THE ARMY NOT ONLY WISHES TO FULFILL ITS OBLIGATIONS UNDER THE ENROLLMENT CONTRACTS, BUT IT ALSO DESIRES TO RETAIN THE SELECT PERSONNEL AND PERMIT THEM TO COMPLETE THEIR ACADEMIC TRAINING AT THEIR CHOSEN INSTITUTIONS. AS TO THE 4 YEAR SCHOLARSHIP MEMBERS, FUNDS HAVE ALREADY BEEN EXPENDED FOR 2 YEARS.

TO MEET THIS PROBLEM THE DEPARTMENT OF THE ARMY PROPOSES THAT ENROLLED MEMBERS WILL BE OFFERED THE PROGRAM OF UNDERTAKING BOTH THE THIRD AND FOURTH YEAR OF MILITARY TRAINING DURING THEIR THIRD ACADEMIC YEAR, BUT THE DEPARTMENT WILL PAY ALL THE ENTITLEMENTS DURING THE FOURTH YEAR IN THE SAME MANNER AND TO THE SAME EXTENT IT WOULD HAVE PAID UNDER THE NORMAL PROGRAM EVEN THOUGH THERE IS NO LONGER AN ROTC UNIT AT THE INSTITUTION AND THE STUDENT IS NOT A MEMBER OF AN ROTC UNIT. HE WILL REMAIN A MEMBER OF THE ROTC, HOWEVER, WILL REMAIN ENLISTED IN THE USAR ASSIGNED TO THE USAR CONTROL GROUP (ROTC) UNDER THE APPROPRIATE UNITED STATES ARMY AREA COMMANDER (PARAGRAPH 3-19, AR 145-1) AND WILL BE UNDER THE ADMINISTRATIVE SUPERVISION OF A DESIGNATED PROFESSOR OF MILITARY SCIENCE AT ANOTHER INSTITUTION FOR PURPOSES OF MONITORING ACADEMIC PROGRESS, VERIFYING VOUCHERS AND COUNSELING.

THE COMMITTEE ACTION SUGGESTS THAT MEMBERSHIP IN AN ROTC UNIT DURING A PARTICIPANT'S FOURTH ACADEMIC YEAR DOES NOT AFFECT HIS ENTITLEMENTS, EITHER SCHOLARSHIP OR NONSCHOLARSHIP, INASMUCH AS THE STATUTE DOES NOT REQUIRE MEMBERSHIP IN AN ROTC UNIT AS A PREREQUISITE, BUT REQUIRES ONLY MEMBERSHIP IN THE PROGRAM. IN EACH CASE THE STUDENT CONTINUES TO BE A PARTICIPANT IN THE PROGRAM, HAVING MET ALL STATUTORY ELIGIBILITY REQUIREMENTS, AND IN EACH CASE THE INSTITUTION HAD ENTERED A CONTRACT WITH THE DEPARTMENT ESTABLISHING AND MAINTAINING AN ROTC PROGRAM, AND HAS AND DOES CURRENTLY OFFER AS PART OF ITS CURRICULUM "A FOUR-YEAR COURSE OF MILITARY INSTRUCTION OR A TWO-YEAR COURSE OF ADVANCED TRAINING OF MILITARY INSTRUCTION, OR BOTH, WHICH THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED PRESCRIBED AND CONDUCTS." 10 U.S.C. 2102.

THE COMMITTEE ACTION FURTHER STATES THAT THE 4-YEAR OR 2-YEAR COURSES ARE AS PRESCRIBED BY THE SECRETARY, PROVIDE THE MILITARY TRAINING DEEMED NECESSARY FOR THE PURPOSE, ARE OFFERED IN YEARLY UNITS OF STUDY, AND THAT IT IS APPARENT THAT THE NUMBER OF YEARS PRESCRIBED IN THE LAW REFERS TO THE SCOPE OF THE TRAINING, NOT CALENDAR YEARS, ALTHOUGH HISTORICALLY AND NORMALLY THE COURSES WOULD BE TAKEN OVER THE APPROPRIATE NUMBER OF CALENDAR YEARS. IT IS SUGGESTED THAT THE INTERPRETATION OF THE WORD "YEARS" AS NOT MEANING ONLY CALENDAR "YEARS" OF ACTUAL TRAINING UNDER THE ROTC PROGRAM, BUT RATHER THE SCOPE OF TRAINING WHICH NORMALLY REQUIRE A GIVEN NUMBER OF CALENDAR YEARS, IS SUPPORTED BY THE PROVISION IN 10 U.S.C. 2108(C) AUTHORIZING THE SECRETARY TO EXECUSE A MEMBER FROM A PORTION OF THE PRESCRIBED COURSE OF MILITARY INSTRUCTION WHEN FOUND QUALIFIED ON THE BASIS OF HIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH. PRESUMABLY, THE ABOVE USE OF THE WORD "CALENDAR" WAS DUE TO INADVERTENCE AND REFERENCE TO ACADEMIC YEARS WAS ACTUALLY INTENDED.

THE COMMITTEE ACTION THEREFORE CONSIDERS IT APPROPRIATE TO CONCLUDE THAT IF A MEMBER HAS COMPLETED THE ENTIRE "PRESCRIBED COURSE OF MILITARY INSTRUCTION," THE LAW WOULD NOT BAR A PARTICIPANT FROM RECEIVING ALL THE ENTITLEMENTS TO WHICH ENTITLED BY SO PERFORMING HIS PART OF THE CONTRACT, CITING OUR DECISION OF JULY 7, 1966, 46 COMP. GEN. 15, AS IN EFFECT, ADOPTING THAT PRINCIPLE, ALTHOUGH THAT CASE INVOLVED "EXCUSE" FROM TRAINING RATHER THAN ACCELERATED COMPLETION AS HERE PROPOSED. IT ALSO STATES THAT IN AN OPINION DATED JULY 8, 1969, THE JUDGE ADVOCATE GENERAL OF THE ARMY CONCLUDED THAT THE PROPOSED PAYMENTS ARE LEGALLY AUTHORIZED.

IN VIEW OF THE PROVISIONS OF 10 U.S.C. 2108(C) THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE ABOVE-DESCRIBED PAYMENTS IN THE CIRCUMSTANCES STATED IN COMMITTEE ACTION NO. 434. IT IS TO BE UNDERSTOOD, HOWEVER, THAT THE AFFIRMATIVE ANSWER TO THE QUESTION PRESENTED IS TO BE LIMITED TO PARTICIPANTS IN THE SENIOR ROTC PROGRAM AT INSTITUTIONS WHICH ARE WITHDRAWING FROM THE ROTC PROGRAM UNDER THE CIRCUMSTANCES DESCRIBED.