B-140300, OCT. 19, 1970

B-140300, OCT. 19, 1970

PREDISCHARGE EDUCATION PROGRAM - OVERSEAS DECISION CONCERNING THE PROPRIETY OF IMPLEMENTING THE PREDISCHARGE EDUCATION PROGRAM IN OVERSEAS AREAS UNDER THE AEGIS OF THE OVERSEAS DEPENDENTS SCHOOL SYSTEM. WHILE GAO DOES NOT AGREE THAT 10 U.S.C. 2205 PROVIDES AUTHORITY TO CREDIT TUITION PAYMENTS BY VA TO THE APPROPRIATION FROM WHICH THE DEPENDENTS SCHOOL SYSTEM IS FINANCED, PAST PRACTICE PLUS CONGRESSIONAL AWARENESS DOES NOT REQUIRE GAO TO QUESTION THIS METHOD. THE USE OF VOLUNTEER DEPENDENTS SCHOOL TEACHERS MAY CONFLICT WITH PROVISIONS OF 5 U.S.C. 5533 IF THE TEACHER IS CONSIDERED TO BE OCCUPYING TWO POSITIONS BUT SINCE DEFENSE DEP'T. IS TAKING ACTION TO SECURE NECESSARY LEGISLATION, THERE IS NO OBJECTION TO THIS PROCEDURE FOR THE 1970-71 SCHOOL YEAR. FINALLY, THE UTILIZATION OF MILITARY PERSONNEL AS TEACHERS IN THE PROGRAM CONFLICTS WITH GAO DECISION HOLDING THAT ACTIVE DUTY PERSONNEL IN THE UNIFORMED SERVICES MAY NOT BE EMPLOYED DURING THEIR OFF DUTY HOURS IN CIVILIAN POSITIONS PAID FROM APPROPRIATED FUNDS AND THEREFORE WOULD BE IMPROPER.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF AUGUST 19, 1970, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) AS SUPPLEMENTED BY LETTER OF SEPTEMBER 11, 1970, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (EDUCATION) CONCERNING THE IMPLEMENTATION IN OVERSEAS AREAS OF THE PREDISCHARGE EDUCATION PROGRAM AUTHORIZED BY THE VETERANS EDUCATION AND TRAINING AMENDMENTS ACT OF 1970, PUBLIC LAW 91-219, APPROVED MARCH 26, 1970, 84 STAT. 76.

THE PURPOSE OF THE PROGRAM IS TO ENCOURAGE AND ASSIST SERVICEMEN IN PREPARING FOR THEIR FUTURE EDUCATION, TRAINING, OR VOCATION BY PROVIDING THEM WITH AN OPPORTUNITY TO ENROLL IN APPROPRIATE EDUCATION OR TRAINING COURSES PRIOR TO THEIR RELEASE FROM ACTIVE DUTY. THE PROGRAM IS FINANCED BY THE VETERANS ADMINISTRATION AND ALL SERVICEMEN WHO SERVED A MINIMUM OF 180 DAYS OF ACTIVE DUTY ARE ELIGIBLE TO PARTICIPATE.

IT IS EXPLAINED THAT THE VETERANS ADMINISTRATION WILL NOT PROVIDE THE SERVICEMAN A MONETARY EDUCATIONAL ALLOWANCE FOR COURSES OFFERED BY A FOREIGN EDUCATIONAL INSTITUTION, BUT HAS AGREED TO A PROPOSAL TO CONDUCT THE PROGRAM OVERSEAS UNDER THE AEGIS OF THE OVERSEAS DEPENDENTS SCHOOL SYSTEM AFTER NORMAL SCHOOL HOURS.

UNDER THIS PROPOSAL THE VETERANS ADMINISTRATION WILL PAY THE SERVICEMAN THE AUTHORIZED MONETARY ALLOWANCE (COST OF TUITION, FEES, AND BOOKS OR $175 PER MONTH, WHICHEVER IS THE LESSER.) THE TUITION AND FEES OF MILITARY PERSONNEL PARTICIPATING IN THE OVERSEAS PROGRAM WILL BE DEPOSITED IN AN APPROPRIATED FUND ACCOUNT OF THE OVERSEAS DEPENDENTS SCHOOLS WHICH IS ADMINISTERED BY THE SCHOOL PRINCIPAL OR DISTRICT SUPERINTENDENT. DISBURSEMENTS TO THE DEPENDENTS SCHOOL TEACHERS AND STAFF WHO HAVE VOLUNTEERED TO SERVE IN THE PROGRAM WILL BE MADE FROM THIS APPROPRIATED FUND AND PAYMENTS WILL BE MADE AT A UNIFORMLY ESTABLISHED HOURLY RATE FOR EXTRA DUTY ASSIGNMENTS. THIS ACTION, IT IS SAID, IS CONSIDERED APPROPRIATE SINCE THE SECRETARY OF DEFENSE HAS OVER THE YEARS ESTABLISHED PAY SCALES FOR TEACHERS WHO ENGAGE IN OVERTIME WORK, SUCH AS ATHLETIC COACHES, BAND DIRECTORS, AND CHOIR DIRECTORS.

ALSO, IT IS POINTED OUT THAT IT HAS BEEN THE PRACTICE TO PERMIT A SMALL NUMBER OF DEPENDENTS OF AMERICAN NON-DEFENSE PERSONNEL TO ATTEND OVERSEAS SCHOOLS IN AREAS WHERE NO AMERICAN LANGUAGE SCHOOL IS AVAILABLE. THE TUITION PAYMENTS THUS RECEIVED ARE DEPOSITED INTO THE APPROPRIATE APPROPRIATION FUND ACCOUNT PURSUANT TO 10 U.S.C. 2205 AND ARE TREATED AS REIMBURSEMENTS AND ACCOUNTED FOR ON THE SAME BASIS AS APPROPRIATED FUNDS.

IN THOSE AREAS WHERE NO DEPENDENTS SCHOOLS EXIST, IT IS PROPOSED THAT THE PROGRAM BE OPERATED AS AN EXTENSION OF THE NEAREST DEPENDENTS SCHOOL UNDER THE SUPERVISION OF THE SCHOOL SUPERINTENDENT. IT IS STATED THAT IN THESE AREAS IT WILL BE NECESSARY TO UTILIZE MILITARY OFFICERS AND ENLISTED PERSONNEL AS VOLUNTEER TEACHERS SINCE IF THERE IS NO DEPENDENTS SCHOOL, THERE WILL BE FEW, IF ANY, QUALIFIED TEACHERS IN THE AREA.

OUR ADVICE IS REQUESTED AS TO THE LEGALITY OF IMPLEMENTING THE PROPOSALS OUTLINED ABOVE.

WE DO NOT AGREE THAT 10 U.S.C. 2205 PROVIDES AUTHORITY TO CREDIT TUITION PAYMENTS TO THE APPROPRIATION FROM WHICH THE DEPENDENTS SCHOOLS SYSTEM IS FINANCED. HOWEVER, SINCE, AS STATED ABOVE, IT HAS BEEN THE PRACTICE OVER THE YEARS TO DEPOSIT SUCH TUITION PAYMENTS FOR DEPENDENTS OF NON-DEFENSE PERSONNEL TO THE APPROPRIATION ACCOUNT; SUCH REIMBURSEMENTS ARE TAKEN INTO CONSIDERATION IN REQUESTING ANNUAL APPROPRIATIONS TO OPERATE THE SCHOOLS; AND SINCE THE CONGRESS IS AWARE OF SUCH MATTER, WE DO NOT FEEL REQUIRED TO QUESTION THIS PRACTICE. SEE, FOR EXAMPLE, THE HOUSE HEARINGS ON THE DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1971, PART 3, OPERATIONS AND MAINTENANCE, PAGES 38 AND 606.

IN VIEW OF THE FOREGOING WE WOULD NOT OBJECT TO THE MANNER IN WHICH IT IS NOW PROPOSED IN THE LETTER OF SEPTEMBER 11, 1970, TO HANDLE THE TUITION PAYMENTS MADE BY THE SERVICEMEN PARTICIPATING IN THE OVERSEAS PREDISCHARGE EDUCATION PROGRAM.

INSOFAR AS THE UTILIZATION OF VOLUNTEER DEPENDENTS SCHOOL TEACHERS IN THE PROGRAM IS CONCERNED, THERE IS FOR CONSIDERATION THE PROVISIONS OF 5 U.S.C. 5533 WHICH PROVIDES IN PART THAT AN INDIVIDUAL IS NOT ENTITLED TO RECEIVE BASIC PAY FOR MORE THAN ONE POSITION FOR MORE THAN AN AGGREGATE OF 40 HOURS OF WORK IN ONE CALENDAR WEEK.

YOUR DEPARTMENT APPARENTLY VIEWS THE TEACHING IN THE PREDISCHARGE EDUCATION PROGRAM AS BEING BUT AN EXTENSION OF THE DUTIES OF A TEACHER'S PRESENT POSITION. NOTWITHSTANDING THE FACT THAT THE PREDISCHARGE EDUCATION PROGRAM WOULD BE UNDER THE AEGIS OF THE DEPENDENTS SCHOOL SYSTEM, WE BELIEVE THERE EXISTS A REASONABLE BASIS FOR THE VIEW THAT SUCH TEACHER WOULD BE OCCUPYING 2 POSITIONS WITHIN THE PURVIEW OF 5 U.S.C. 5533.

WHILE WE THUS HAVE CONSIDERABLE DOUBT THAT THE PLAN IS CONSISTENT WITH THE PROVISIONS OF 5 U.S.C. 5533, IN VIEW OF THE STATEMENT THAT YOUR DEPARTMENT WILL TAKE PROMPT ACTION TO SECURE THE NECESSARY LEGISLATION TO SPECIFICALLY PROVIDE FOR THE OVERSEAS PREDISCHARGE EDUCATION PROGRAM IN SUCCEEDING YEARS, WE WILL NOT OBJECT TO YOUR PROCEEDING AS OUTLINED HEREIN FOR THE 1970-1971 SCHOOL YEAR INSOFAR AS THE UTILIZATION OF DEPENDENTS SCHOOL TEACHERS IS CONCERNED.

WITH RESPECT TO THE UTILIZATION OF MILITARY OFFICERS AND ENLISTED MEN AS TEACHERS IN THE PROGRAM, THERE CLEARLY WOULD BE FOR APPLICATION OUR DECISIONS HOLDING THAT OFFICERS AND ENLISTED PERSONNEL SERVING ON EXTENDED ACTIVE DUTY IN THE UNIFORMED SERVICES MAY NOT BE EMPLOYED DURING THEIR OFF -DUTY HOURS IN CIVILIAN POSITIONS PAID FROM APPROPRIATED FUNDS IN THAT SUCH ACTIVE MILITARY SERVICE IS INCOMPATIBLE WITH CONCURRENT FEDERAL CIVILIAN SERVICE. SEE 46 COMP. GEN. 400 (1966) AND CASES CITED THEREIN.