B-134884, JUL. 17, 1958

B-134884, JUL. 17, 1958

TO MR. WILLIAM ROBERT LEONARD:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1957, CONCERNING THE CLAIM OF THE UNITED STATES AGAINST YOU BECAUSE OF YOUR FAILURE TO REFUND THE AMOUNTS, TOTALING $429.30, PAID TO YOU AS COMMUTATION OF SUBSISTENCE WHILE YOU WERE UNDER CONTRACT AS A MEMBER OF THE RESERVE OFFICERS' TRAINING CORPS AT INDIANA UNIVERSITY.

OUR CLAIMS DIVISION ADVISED YOU THAT SINCE YOU WERE DISCHARGED FROM THE RESERVE OFFICERS' TRAINING CORPS FOR YOUR OWN CONVENIENCE PRIOR TO COMPLETING THE ADVANCED COURSE, SENIOR DIVISION, YOU MUST REFUND TO THE UNITED STATES THE MONEY PAID TO YOU AS COMMUTATION OF SUBSISTENCE. YOU SAY IN YOUR LETTER THAT YOU WERE NOT DISCHARGED FOR YOUR OWN CONVENIENCE BUT RECEIVED A "WITHDRAWN FAILURE" FROM THE ADVANCED COURSE. ALSO YOU SAY YOU HAVE BEEN ADVISED THAT UNDER A NEW MEMORANDUM, HEADQUARTERS, FIFTH UNITED STATES ARMY, CHICAGO, ILLINOIS, PARAGRAPH 3, MEMORANDUM NO. 145- 101, YOU SHOULD NOT BE HELD MONETARILY RESPONSIBLE FOR THE SUBSISTENCE PAYMENTS WHICH YOU RECEIVED.

IN VIEW OF YOUR STATEMENT ABOUT THE REASON FOR YOUR DISCHARGE WE HAVE OBTAINED A FURTHER REPORT FROM THE ARMY IN YOUR CASE. THE RECORDS SHOW THAT BY LETTER OF MAY 12, 1954, YOU WERE ADVISED THAT, AS A RESULT OF YOUR FAILURE TO CONTINUE ATTENDANCE IN ROTC CLASSES, ACTION HAD BEEN INITIATED TO EFFECT YOUR DISCHARGE FROM THE ADVANCED COURSE. YOU WERE FURTHER ADVISED THAT SINCE THE DISCHARGE WOULD BE FOR YOUR OWN CONVENIENCE YOU WOULD HAVE TO REPAY ALL MONEY RECEIVED AS COMMUTATION OF SUBSISTENCE. HEADQUARTERS, FIFTH UNITED STATES ARMY, SAYS DEFINITELY THAT YOU WERE DISCHARGED FROM THE ADVANCED COURSE FOR YOUR OWN CONVENIENCE UNDER THE PROVISIONS OF PARAGRAPH 14F, ARMY REGULATIONS 145-350; BUT, THAT NO REFUND OF COMMUTATION OF SUBSISTENCE WILL BE REQUIRED BY THAT HEADQUARTERS IN VIEW OF THE PROVISIONS OF MESSAGE DA 586792, NOVEMBER 12, 1957, FROM THE ADJUTANT GENERAL, WHICH WAS QUOTED IN PART IN MEMORANDUM NO. 145-101, THAT HEADQUARTERS, DATED NOVEMBER 27, 1957.

SECTION 47C OF THE NATIONAL DEFENSE ACT AS ADDED BY SECTION 34 OF THE ACT OF JUNE 4, 1920, 41 STAT. 778, 10 U.S.C. (1952 ED.) 387, PROVIDES AS FOLLOWS:

"WHEN ANY MEMBER OF THE SENIOR DIVISION OF THE RESERVE OFFICERS' TRAINING CORPS HAS COMPLETED TWO ACADEMIC YEARS OF SERVICE IN THAT DIVISION, AND HAS BEEN SELECTED FOR ADVANCED TRAINING BY THE PRESIDENT OF THE INSTITUTION AND BY THE PROFESSOR OF MILITARY SCIENCE AND TACTICS, AND HAS AGREED IN WRITING TO CONTINUE IN THE RESERVE OFFICERS' TRAINING CORPS FOR THE REMAINDER OF HIS COURSE AT THE INSTITUTION, DEVOTING FIVE HOURS PER WEEK TO THE MILITARY TRAINING PRESCRIBED BY THE SECRETARY OF THE ARMY, AND HAS AGREED IN WRITING TO PURSUE THE COURSE IN CAMP TRAINING PRESCRIBED BY THE SECRETARY OF THE ARMY, HE MAY BE FURNISHED AT THE EXPENSE OF THE UNITED STATES COMMUTATION OF SUBSISTENCE AT SUCH RATE, NOT EXCEEDING THE COST OF THE GARRISON RATION PRESCRIBED FOR THE ARMY, AS MAY BE FIXED BY THE SECRETARY OF THE ARMY, DURING THE REMAINDER OF HIS SERVICE IN THE RESERVE OFFICERS' TRAINING CORPS, NOT EXCEEDING TWO YEARS.'

THE PERTINENT REGULATIONS IN EFFECT DURING THE PERIOD YOU WERE PAID THE SUBSISTENCE ALLOWANCE WERE CONTAINED IN ARMY REGULATIONS 145-350, OCTOBER 31, 1952, PARAGRAPH 23A (1) OF SUCH REGULATIONS PROVIDING AS FOLLOWS:

"/1) AN INDIVIDUAL CONTRACT WILL BE EXECUTED BETWEEN THE GOVERNMENT AND EACH STUDENT ENROLLED IN THE ADVANCED COURSE OF THE SENIOR DIVISION, ROTC, BY WHICH THE STUDENT, IN CONSIDERATION OF COMMUTATION OF SUBSISTENCE TO BE FURNISHED HIM IN ACCORDANCE WITH LAW, AGREES TO COMPLETE THE ADVANCED COURSE AT THE INSTITUTION IN WHICH HE IS ENROLLED OR ANY OTHER INSTITUTION WHERE HE MAY HEREAFTER BE ENROLLED WHERE SUCH COURSE IS GIVEN, TO DEVOTE 5 HOURS PER WEEK DURING SUCH PERIOD TO THE MILITARY TRAINING PRESCRIBED, AND TO PURSUE THE COURSES OF CAMP TRAINING DURING SUCH PERIOD AS PRESCRIBED BY THE SECRETARY OF THE ARMY. FORMALLY ENROLLED STUDENTS OF THE ADVANCED COURSE WILL BE PAID A MONETARY ALLOWANCE MONTHLY IN LIEU OF SUBSISTENCE AT A DAILY RATE SPECIFIED BY THE DEPARTMENT OF THE ARMY FOR A TOTAL PERIOD NOT IN EXCESS OF 595 DAYS IN THE CASE OF ANY STUDENT. THIS ALLOWANCE WILL NOT BE PAID DURING THE PERIOD OF THE ADVANCED ROTC CAMP, WHETHER OR NOT ATTENDED BY THE STUDENT, EXCEPT TO THOSE ADVANCED STUDENTS WHO, IN CONSEQUENCE OF AN ACCELERATED SUMMER PROGRAM, ARE PURSUING REGULARLY SCHEDULED INSTITUTIONAL ROTC INSTRUCTION DURING THAT IOD.'

PARAGRAPH 14F OF THOSE REGULATIONS PROVIDED:

"ARMY COMMANDERS ARE AUTHORIZED TO ADJUST CASES INVOLVING THE WITHDRAWAL OF MEMBERS OF THE ROTC FROM, OR RETURN TO, ADVANCED COURSE CONTRACTS UPON THE MERITS OF THE INDIVIDUAL CASE. EXCEPT WHEN WITHDRAWAL FROM THE CONTRACT IS FOR THE CONVENIENCE OF THE GOVERNMENT, THE STUDENT SHOULD BE REQUIRED TO REFUND TO THE GOVERNMENT ANY SUMS PREVIOUSLY PAID TO HIM AS COMMUTATION OF SUBSISTENCE. * * *"

THE PROVISIONS OF PARAGRAPH 14F WERE CARRIED FORWARD AND INCORPORATED WITHOUT CHANGE IN PARAGRAPH 16C, ARMY REGULATIONS 145 350, AUGUST 4, 1955. THOSE PROVISIONS, HOWEVER, WERE SUPERSEDED BY CHANGES NO. 11, ARMY REGULATIONS 145-350, OCTOBER 1, 1957, AND NOW PROVIDED AS FOLLOWS:

"C.(SUPERSEDED) REQUESTS FOR WITHDRAWAL, DISCHARGE FROM CURRENT CONTRACT, OR REINSTATEMENT UNDER PRIOR CONTRACT WILL BE APPROVED OR DISAPPROVED BY THE ARMY COMMANDER WHOSE DECISION WILL BE BASED UPON THE MERITS OF EACH INDIVIDUAL CASE. PAYMENT OF COMMUTATION OF SUBSISTENCE WILL BE STOPPED EFFECTIVE THE DATE OF DISCHARGE OF THE STUDENT FROM HIS ROTC CONTRACT. REFUND OF COMMUTATION OF SUBSISTENCE PAID TO THE STUDENT WHILE UNDER CONTRACT WILL NOT BE REQUIRED.'

THIS REGULATION CHANGE WAS FIRST ANNOUNCED IN DA MESSAGES 567273 AND 567682 DATED SEPTEMBER 10 AND 11, 1957, RESPECTIVELY. WHILE THE REGULATION CHANGE DOES NOT PURPORT TO BE RETROACTIVE, DA MESSAGE 586792, NOVEMBER 12, 1957, WAS ISSUED AS FOLLOWS:

"WITH REGARD TO ROTC STUDENTS DISCHARGED FROM THE PROGRAM FOR THEIR OWN CONVENIENCE, EFFECTIVE 10 SEPTEMBER 1957, NO FURTHER REFUNDS OF THE COMMUTATION OF SUBSISTENCE ALLOWANCE WILL BE REQUIRED. THIS POLICY INCLUDES THOSE STUDENTS DISCHARGED PRIOR TO 10 SEPTEMBER 1957, ONLY IF THEY HAVE NOT MADE FINAL SETTLEMENT.'

WE KNOW OF NO AUTHORITY, HOWEVER, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, WHICH WOULD AUTHORIZE THE DEPARTMENT OF THE ARMY TO ISSUE A RETROACTIVE AMENDMENT TO A REGULATION WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE GOVERNMENT AND THE STUDENTS UNDER THE ROTC PROGRAMS. IT IS WELL SETTLED THAT WHEN A REGULATION IS ISSUED RIGHTS THEREUNDER BECOME FIXED AND ALTHOUGH SUCH REGULATION MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY. COMPARE ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370. SEE, ALSO, 27 COMP. GEN. 339; 31 COMP. GEN. 619; AND 32 COMP. GEN. 315. IT SEEMS APPARENT THAT THE DEPARTMENT OF THE ARMY CANNOT ACCOMPLISH UNDER THE GUISE OF A POLICY DIRECTIVE THAT WHICH IT LEGALLY CANNOT DO BY REGULATION.

SINCE YOU WERE NOT DISCHARGED FROM THE ADVANCED COURSE FOR THE CONVENIENCE OF THE GOVERNMENT AND WERE REQUIRED UNDER THE REGULATIONS THEN IN EFFECT TO REFUND THE SUBSISTENCE PAYMENTS WHICH YOU HAD RECEIVED, YOU LEGALLY ARE LIABLE TO THE UNITED STATES FOR THE AMOUNT OF SUCH SUBSISTENCE PAYMENTS. YOU SHOULD BEGIN IMMEDIATELY TO LIQUIDATE YOUR INDEBTEDNESS OF $429.30. PAYMENT SHOULD BE MADE BY CERTIFIED CHECK OR MONEY ORDER PAYABLE TO THE TREASURER OF THE UNITED STATES ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C., CITING CLAIM NO. Z1-568- 076. IN THE EVENT YOU ARE NOT FINANCIALLY ABLE TO REPAY THE FULL AMOUNT OF YOUR INDEBTEDNESS AT THIS TIME, THE CLAIMS DIVISION WILL GIVE CONSIDERATION TO A REASONABLE PLAN TO LIQUIDATE THE DEBT BY MONTHLY INSTALLMENTS.