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B-123584, AUG. 3, 1956

B-123584 Aug 03, 1956
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TO THE NATIONAL RADIO INSTITUTE: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 23. WHICH PROHIBITS THE PAYMENT OF THE ADMINISTRATIVE ALLOWANCE TO CORRESPONDENCE SCHOOLS IS INVALID. IN SUPPORT OF THIS CONTENTION IT IS URGED THAT THE REGULATION IS NOT IN HARMONY WITH THE PROVISIONS OF THE STATUTE. IT IS ALSO URGED THAT THIS REGULATION IS NOT REASONABLE IN THAT IT IS BASED ALMOST ENTIRELY ON THE TECHNICAL THEORY THAT THE WORK "ATTENDING" AS USED IN THE PHRASE . ENROLLED IN AND ATTENDING" APPEARING IN THE STATUTORY PROVISIONS INVOLVED IS RESTRICTED TO THE VERY NARROW MEANING THAT THE STUDENT MUST BE ACTUALLY PHYSICALLY PRESENT IN THE CLASSROOM OR ON THE CAMPUS. TERMINATION OF THE EDUCATION OR TRAINING OF EACH ELIGIBLE VETERAN ENROLLED THEREIN UNDER THIS SUBCHAPTER. "/B) THE ADMINISTRATOR SHALL PAY TO EACH EDUCATIONAL INSTITUTION WHICH IS REQUIRED TO SUBMIT REPORTS AND CERTIFICATIONS TO THE ADMINISTRATOR UNDER THIS SUBCHAPTER.

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B-123584, AUG. 3, 1956

TO THE NATIONAL RADIO INSTITUTE:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 23, 1956, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 19, 1956, WHICH DISALLOWED YOUR CLAIM FOR $14, REPRESENTING CHARGES FOR FURNISHING THE VETERANS ADMINISTRATION REPORTS AND CERTIFICATIONS ON TRAINING OF VETERANS ENROLLED AT YOUR INSTITUTION, ALLEGEDLY AUTHORIZED BY SECTION 265 (B) OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, PUBLIC LAW 550, 82D CONGRESS, 66 STAT. 663.

YOU CONTEND, IN EFFECT, THAT REGULATION OF THE VETERANS ADMINISTRATION, 38 C.F.R. 21.2303 (C) (3), WHICH PROHIBITS THE PAYMENT OF THE ADMINISTRATIVE ALLOWANCE TO CORRESPONDENCE SCHOOLS IS INVALID. IN SUPPORT OF THIS CONTENTION IT IS URGED THAT THE REGULATION IS NOT IN HARMONY WITH THE PROVISIONS OF THE STATUTE. IT IS ALSO URGED THAT THIS REGULATION IS NOT REASONABLE IN THAT IT IS BASED ALMOST ENTIRELY ON THE TECHNICAL THEORY THAT THE WORK "ATTENDING" AS USED IN THE PHRASE ,ENROLLED IN AND ATTENDING" APPEARING IN THE STATUTORY PROVISIONS INVOLVED IS RESTRICTED TO THE VERY NARROW MEANING THAT THE STUDENT MUST BE ACTUALLY PHYSICALLY PRESENT IN THE CLASSROOM OR ON THE CAMPUS.

SECTION 265 OF THE ACT, 38 U.S.C. 975, PROVIDES AS FOLLOWS:

"/A) EDUCATIONAL INSTITUTIONS AND TRAINING ESTABLISHMENTS SHALL, WITHOUT DELAY, REPORT TO THE ADMINISTRATOR IN THE FORM PRESCRIBED BY HIM, THE ENROLLMENT, INTERRUPTION, AND TERMINATION OF THE EDUCATION OR TRAINING OF EACH ELIGIBLE VETERAN ENROLLED THEREIN UNDER THIS SUBCHAPTER.

"/B) THE ADMINISTRATOR SHALL PAY TO EACH EDUCATIONAL INSTITUTION WHICH IS REQUIRED TO SUBMIT REPORTS AND CERTIFICATIONS TO THE ADMINISTRATOR UNDER THIS SUBCHAPTER, AN ALLOWANCE AT THE RATE OF $1.50 PER MONTH FOR EACH ELIGIBLE VETERAN ENROLLED IN AND ATTENDING SUCH INSTITUTION UNDER THE PROVISIONS OF THIS SUBCHAPTER TO ASSIST THE EDUCATIONAL INSTITUTION IN DEFRAYING THE EXPENSE OF PREPARING AND SUBMITTING SUCH REPORTS AND CERTIFICATIONS. SUCH ALLOWANCES SHALL BE PAID IN SUCH MANNER AND AT SUCH TIMES AS MAY BE PRESCRIBED BY THE ADMINISTRATOR, EXCEPT THAT IN THE EVENT ANY INSTITUTION FAILS TO SUBMIT REPORTS OR CERTIFICATIONS TO THE ADMINISTRATOR AS REQUIRED BY THIS SUBCHAPTER, NO ALLOWANCE SHALL BE PAID TO SUCH INSTITUTION FOR THE MONTH OR MONTHS DURING WHICH SUCH REPORTS OR CERTIFICATIONS WERE NOT SUBMITTED AS REQUIRED BY THE ADMINISTRATOR.'

AND, PURSUANT TO SECTION 261 (A) AUTHORIZING THE ADMINISTRATOR OF VETERANS AFFAIRS TO PRESCRIBE AND PUBLISH SUCH RULES AND REGULATIONS AS ARE CONSISTENT WITH AND NECESSARY TO CARRY OUT THE PROVISIONS OF TITLE II OF THE ACT, THE FOLLOWING REGULATION, 38 C.F.R. 21.2303 (C) (3) WAS ISSUED, AUGUST 8, 1952:

"/3) NO ADMINISTRATIVE ALLOWANCE SHALL BE PAID TO AN EDUCATIONAL INSTITUTION FOR A VETERAN ENROLLED IN A COURSE PURSUED EXCLUSIVELY BY CORRESPONDENCE.'

THE QUESTION PRESENTED HERE HAS BEEN THE SUBJECT OF CONFERENCES BETWEEN THE VETERANS ADMINISTRATION, OTHER INSTITUTIONS AND OUR OFFICE. FOLLOWING OUR REQUEST FOR FURTHER CONSIDERATION OF THE MATTER, THE ADMINISTRATOR ADVISED THAT HE HAD APPROVED AN OPINION OF HIS GENERAL COUNSEL DATED APRIL 16, 1954, IN WHICH IT WAS CONCLUDED THAT "THE INTERPRETATION OF THE MEANING OF SECTION 265, SUPRA, AS EXPRESSED IN VA REGULATION 12303 (C) (3), IS CORRECT AND SHOULD BE ADHERED TO; AND THAT ANY OTHER RESULT WOULD REQUIRE AMENDATORY LEGISLATION.' IN ARRIVING AT THIS CONCLUSION IT IS STATED IN THE OPINION THAT THE PHRASE "ENROLLED IN AND ATTENDING" WAS INSERTED BY THE CONFEREES OF BOTH HOUSES OF CONGRESS AFTER THE ORIGINAL LEGISLATION WAS PASSED, AND THAT THE "OBVIOUS PURPOSE" OF THE INSERTION OF THIS PHRASE IN SECTION 265 (B) "WAS TO PREVENT THE PAYMENT OF THE ALLOWANCE WHERE, AS IN THE CASE UNDER CONSIDERATION, THE COURSE PURSUED BY THE VETERAN DOES NOT REQUIRE HIS ATTENDANCE AT THE EDUCATIONAL INSTITUTION OFFERING THE SAME.'

AN EXAMINATION OF THE LEGISLATIVE HISTORY DISCLOSES THAT THE TESTIMONY OF INTERESTED PARTIES SET OUT IN THE REPORTS OF THE HEARINGS ON THE PROPOSED BILLS AND THE STATEMENTS CONTAINED IN THE COMMITTEE REPORTS ON THE LEGISLATION RELATE TO THE DESIRABILITY OF AFFORDING COMPENSATION FOR ADMINISTRATIVE EXPENSES INCURRED BY INSTITUTIONS OFFERING RESIDENCE COURSES. THE NEEDS OF INSTITUTIONS OFFERING COURSES PURSUED EXCLUSIVELY BY CORRESPONDENCE ARE NOT SPECIFICALLY MENTIONED AND APPARENTLY WERE NOT DISCUSSED DURING THE DELIBERATIONS. NO EXPLANATION IS GIVEN IN THE CONFEREES' REPORTS OR ELSEWHERE OF THEIR REASONS FOR MODIFYING SECTION 265 (B) TO INCLUDE THE PHRASE "ENROLLED IN AND ATTENDING SUCH INSTITUTION.'

IT IS RECOGNIZED THAT, AS STATED IN YOUR LETTER, THE WORD "ATTENDING" IS SUSCEPTIBLE OF SEVERAL DEFINITIONS, SOME OF WHICH ARE BROADER THAN THE CONCEPT OF PHYSICAL PRESENCE AT A PARTICULAR PLACE AS THAT WORD HAS BEEN CONSTRUED IN THE REGULATION. HOWEVER, THE COMMON MEANING ATTRIBUTED TO "ATTENDING" BY THE ADMINISTRATIVE AGENCY IN ACCORD WITH WEBSTER'S NEW INTERNATIONAL DICTIONARY, AS "TOBE PRESENT AT; AS TO ATTEND CHURCH," APPEARS TO BE A REASONABLE INTERPRETATION IN THE ABSENCE OF A LEGISLATIVE INTENT TO ASCRIBE SOME OTHER OR DIFFERENT MEANING TO THE WORD.

SUCH A VIEW WOULD BE CONSISTENT WITH TERMINOLOGY USED ELSEWHERE IN THE ACT. FOR EXAMPLE, THE PHRASE "PURSUING A PROGRAM OF EDUCATION OR TRAINING" IS USED MANY TIMES IN THE ACT WITHOUT DISTINCTION AS TO THE METHOD OF INSTRUCTION, WHETHER CLASSROOM, CORRESPONDENCE, OR OTHER. SEE, FOR EXAMPLE, SECTIONS 231 AND 232. ON THE OTHER HAND, WHEN THE WORD "ATTENDANCE" IS USED IN THE ACT PHYSICAL PRESENCE SEEMS TO BE IMPLIED. FOR EXAMPLE, SECTION 233 (A) (1) DEFINES A FULL-TIME COURSE AS REQUIRING "A MINIMUM OF THIRTY HOURS PER WEEK OF ATTENDANCE.' IN SECTIONS 254 (B) (5) AND (C) (7) REFERENCE IS MADE TO POLICY, RECORDS AND STANDARDS ON ATTENDANCE.

UNDER THE CIRCUMSTANCES, OUR OFFICE WOULD NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE REGULATION, WHICH PRECLUDES PAYMENTS OF ALLOWANCES TO CORRESPONDENCE SCHOOLS FOR REPORTS AND CERTIFICATIONS FURNISHED UNDER THE ACT, IS SO CLEARLY INCONSISTENT WITH THE ACT AS TO BE INVALID.

ACCORDINGLY, THE SETTLEMENT OF MARCH 19, 1956, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR ADVISE AS TO WHOM AN APPEAL IN THE MATTER SHOULD BE DIRECTED, YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. HOWEVER, YOUR ATTENTION IS INVITED GENERALLY TO 28 U.S.C. 1344 AND 1491, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS AND THE COURT OF CLAIMS OF THE UNITED STATES.

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