B-152628, NOV. 30, 1965, 45 COMP. GEN. 293

B-152628, NOV. 30, 1965, 45 COMP. GEN. 293

UNIFORMS - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - FOREIGN STUDENTS FOREIGN STUDENTS ENROLLED IN THE SENIOR 4-YEAR RESERVE OFFICERS' TRAINING CORPS PROGRAM PURSUANT TO SECTION 2103 (B) OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, AND EXEMPT FROM THE CITIZENSHIP AND MILITARY SERVICE REQUIREMENTS OF SECTION 2104 (B), ARE ELIGIBLE TO PARTICIPATE IN THE ADVANCED TRAINING PART OF THE ROTC PROGRAM, ABSENT LANGUAGE IN THE ACT OR ITS LEGISLATIVE HISTORY TO THE CONTRARY, AND THE 1964 ACT REGULARIZING THE LONGSTANDING PRACTICE OF PERMITTING FOREIGN STUDENTS TO PARTICIPATE IN THE SENIOR ROTC PROGRAM, INCLUDING ADVANCED TRAINING, PARTICIPATING CIVILIAN COLLEGES AND OTHER EDUCATIONAL INSTITUTIONS OF HIGHER LEARNING ENTITLED TO UNIFORMS OR A MONTHLY ALLOWANCE IN LIEU OF UNIFORMS IN KIND UNDER SECTION 2110 OF THE ACT ARE ENTITLED FOR THE FOREIGN STUDENTS ENROLLED IN THE PROGRAM TO THE COMMUTED VALUE OF THE UNIFORM AS AUTHORIZED BY DEPARTMENT OF DEFENSE DIRECTIVE 1215.10.

TO THE SECRETARY OF DEFENSE, NOVEMBER 30, 1965:

REFERENCE IS MADE TO LETTER OF OCTOBER 21, 1965, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 PERMITS THE ENROLLMENT OF FOREIGN STUDENTS IN THE ADVANCED TRAINING PORTION OF THE SENIOR ROTC PROGRAM SO AS TO ENTITLE THE INSTITUTION TO THE COMMUTED VALUE OF THE UNIFORM AS AUTHORIZED BY DEPARTMENT OF DEFENSE DIRECTIVE 1215.10.

THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, APPROVED OCTOBER 13, 1964, PUBLIC LAW 88-647, 78 STAT. 1063, 10 U.S.C. 2101, PROVIDES FOR TWO DIFFERENT TYPES OF PROGRAMS FOR THE SENIOR ROTC TRAINING IN ACCREDITED CIVILIAN COLLEGES AND OTHER EDUCATIONAL INSTITUTIONS OF HIGHER LEARNING. IT AUTHORIZES IN A NEW SECTION 2107 ADDED TO TITLE 10, U.S. CODE, FOR EACH OF THE MILITARY SERVICES A 4 YEAR PROGRAM WITH SCHOLARSHIP ASSISTANCE FOR SPECIALLY SELECTED STUDENTS, CONSISTING OF TWO ELEMENTS: (1) TUITION, FEES, BOOKS, AND LABORATORY EXPENSES ESTIMATED AT $800 OR $850 A YEAR PER STUDENT AND (2) PAYMENT OF A SUBSISTENCE ALLOWANCE AT $50 A MONTH TO THE STUDENT FOR NO MORE THAN 4 YEARS. STUDENTS PARTICIPATING IN THIS PROGRAM ARE APPOINTED CADETS OR MIDSHIPMEN AND MUST ENLIST IN THE RESERVE COMPONENT OF THE ARMED FORCE IN WHICH APPOINTED CADETS OR MIDSHIPMEN, MUST BE CITIZENS OF THE UNITED STATES, AND MUST AGREE TO ACCEPT APPOINTMENTS AS OFFICERS AND SERVE ON ACTIVE DUTY FOR 4 OR MORE YEARS.

THE OTHER TYPE OF SENIOR ROTC PROGRAM IS THE 4-YEAR ROTC PROGRAM, WHICH PRIOR TO THE 1964 LAW WAS DIVIDED INTO THE BASIC COURSE FOR THE FIRST 2 YEARS OF COLLEGE AND THE "ADVANCED TRAINING" PROGRAM FOR STUDENTS IN THE LAST 2 YEARS OF COLLEGE, WITH PAYMENT OF A SUBSISTENCE ALLOWANCE TO STUDENTS IN THE "ADVANCED TRAINING" PORTION OF THE PROGRAM (DURING THEIR THIRD AND FOURTH YEARS OF COLLEGE). THE 1964 LAW PROVIDES FOR THE CONTINUATION OF THE 4-YEAR SENIOR ROTC PROGRAM AND THE ESTABLISHMENT OF AN OPTIONAL 2-YEAR SENIOR ROTC PROGRAM, WHICH WOULD PROVIDE 2 YEARS ROTC ADVANCED TRAINING. TO BE ELIGIBLE FOR SUCH ADVANCED TRAINING IN EITHER A 2-YEAR OR 4-YEAR SENIOR ROTC PROGRAM, GENERALLY THE STUDENT MUST BE A CITIZEN OF THE UNITED STATES AND MUST HAVE COMPLETED THE FIRST 2 YEARS OF HIS 4-YEAR ROTC COURSE OR HAVE SUCCESSFULLY COMPLETED FIELD TRAINING OR A PRACTICE CRUISE OR AT LEAST 6 WEEKS' DURATION.

SUBSECTION (B) OF SECTION 2103 OF TITLE 10, U.S. CODE, AS ADDED BY THE 1964 ACT, WHICH SECTION PRESCRIBES "ELIGIBILITY FOR MEMBERSHIP" IN THE SENIOR ROTC PROGRAM, PROVIDES:

(B) PERSONS FROM FOREIGN COUNTRIES MAY BE ENROLLED AS MEMBERS OF THE PROGRAM WHEN THEIR ENROLLMENT IS APPROVED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED UNDER CRITERIA APPROVED BY THE SECRETARY OF STATE.

SECTION 2104 (B) PROVIDES THAT TO BE ELIGIBLE FOR ADVANCED TRAINING A PERSON MUST BE A CITIZEN OF THE UNITED STATES, BE SELECTED FOR ADVANCED TRAINING UNDER PROCEDURES PRESCRIBED BY THE GOVERNMENT, ENLIST IN A RESERVE COMPONENT OF THE ARMED FORCE CONCERNED, CONTRACT TO COMPLETE THE ADVANCED TRAINING, AND AGREE TO ACCEPT APPOINTMENT AS AN OFFICER AND SERVE IN THE ARMED FORCES FOR THE PERIOD PRESCRIBED BY THE GOVERNMENT. THAT SECTION, ENTITLED "ADVANCED TRAINING; ELIGIBILITY FOR," OTHERWISE PROVIDES:

(A) ADVANCED TRAINING SHALL BE PROVIDED TO ELIGIBLE MEMBERS OF THE PROGRAM, AND, IF THE INSTITUTION CONCERNED SO REQUESTS, TO ELIGIBLE APPLICANTS FOR MEMBERSHIP IN THE PROGRAM, WHO HAVE TWO ACADEMIC YEARS REMAINING AT SUCH EDUCATIONAL INSTITUTION.

(C) A MEMBER OF THE PROGRAM WHO IS INELIGIBLE UNDER SUBSECTION (B) FOR ADVANCED TRAINING SHALL BE RELEASED FROM THE PROGRAM.

(D) THIS SECTION DOES NOT APPLY TO CADETS AND MIDSHIPMEN APPOINTED UNDER SECTION 2107, OR FOREIGN STUDENTS ENROLLED UNDER SECTION 2103 (B), OF THIS TITLE.

SECTION 2105 PROVIDES FOR THE DISPOSITION OF MEMBERS PARTICIPATING IN THE ADVANCED TRAINING PROGRAM UPON FAILURE TO COMPLETE THE ADVANCED TRAINING OR TO ACCEPT APPOINTMENTS AS OFFICERS AND SECTION 2106 CONCERNS APPOINTMENT AS OFFICERS OF PERSONS WHO COMPLETE ADVANCED TRAINING. SECTION 2107 COVERS APPOINTMENT OF PERSONS PARTICIPATING IN THE 4-YEAR FINANCIAL ASSISTANCE PROGRAM AS CADETS OR MIDSHIPMEN, ELIGIBILITY FOR SUCH APPOINTMENT, WHICH REQUIRES BEING A CITIZEN OF THE UNITED STATES AND ENLISTMENT IN A RESERVE COMPONENT OF THE ARMED FORCE IN WHICH APPOINTED A CADET OR MIDSHIPMAN, DISPOSITION UPON FAILURE TO COMPLETE SUCH 4-YEAR PROGRAM, APPOINTMENT AS OFFICERS UPON COMPLETION OF THE PROGRAM, AND THE 4 OR MORE YEARS OF COMPULSORY ACTIVE MILITARY SERVICE REQUIREMENT AFTER RELEASE FROM THE ROTC TRAINING PROGRAM. NEITHER THAT SECTION NOR ANY OTHER SECTION OF THE 1964 LAW CONTAINS ANY REFERENCE TO FOREIGN STUDENTS EXCEPT 2103 (B) AND 2104 (D). THE TERMS "PROGRAMS," "MEMBER OF THE PROGRAM," AND "ADVANCED TRAINING" ARE DEFINED IN SECTION 2101 AND IT IS CLEAR THAT "ADVANCED TRAINING" IS A PART OF THE "PROGRAM" THERE DEFINED. SECTION 2103 (B) MAKES SELECTED FOREIGN STUDENTS ELIGIBLE FOR ENROLLMENT "AS MEMBERS OF THE PROGRAM.'

BOTH SECTIONS 2104 AND 2107 SPECIFICALLY LIMIT ELIGIBILITY FOR PARTICIPATION IN THE 2-YEAR ,ADVANCED TRAINING" PROGRAM AND THE 4-YEAR FINANCIAL ASSISTANCE PROGRAM TO CITIZENS OF THE UNITED STATES. INDICATED ABOVE, HOWEVER, SUBSECTION 2104 (D) PROVIDES THAT SECTION 2104 DOES NOT APPLY TO CADETS AND MIDSHIPMEN APPOINTED UNDER SECTION 2107 OR TO "FOREIGN STUDENTS ENROLLED UNDER SECTION 2103 (B), OF THIS TITLE.'

IN VIEW OF THE LONGSTANDING PRACTICE PRIOR TO ENACTMENT OF THE 1964 ACT OF PERMITTING FOREIGN STUDENTS TO PARTICIPATE IN THE SENIOR ROTC PROGRAM, INCLUDING ADVANCED TRAINING, AND SINCE SUCH TRAINING IS CLEARLY A PART OF THE SENIOR ROTC 4-YEAR COURSE PROGRAM CONTEMPLATED BY THAT ACT, IT IS BELIEVED THAT SECTION 2103 (B) SHOULD BE VIEWED AS FURNISHING AUTHORITY FOR PROVIDING ADVANCED TRAINING TO PERSONS FROM FOREIGN COUNTRIES WHO HAVE BEEN ENROLLED IN THE PROGRAM FOR THE 4-YEAR COURSE, IN THE ABSENCE OF OTHER LANGUAGE IN THAT ACT OR IN ITS LEGISLATIVE HISTORY REQUIRING A DIFFERENT CONCLUSION.

IN THIS CONNECTION, IT IS NOTED THAT THE LANGUAGE CONTAINED IN SECTION 2103 (B) IS PERMISSIVE "MAY BE ENROLLED"), WHILE THAT CONTAINED IN SECTION 2104 (A) IS MANDATORY ("SHALL BE PROVIDED"). THEN TOO, SECTION 2104--- EVEN WITHOUT SUBSECTION (D/--- IS COUCHED IN TERMS WHICH DO NOT RELATE TO ENROLLEES FROM FOREIGN COUNTRIES, THUS LENDING FURTHER SUPPORT TO THE VIEW THAT THE MANDATORY PROVISIONS OF SECTION 2104 WERE INTENDED TO DEAL WITH MATTERS HAVING NO RELATION TO A POSSIBLE RESTRICTION ON THE INHERENT AUTHORITY IN SECTION 2103 (B) TO FURNISH ADVANCED TRAINING TO FOREIGN STUDENTS.

THERE WOULD APPEAR TO BE NO DOUBT THAT CADETS AND MIDSHIPMEN WHO ARE COVERED BY SECTION 2107 MAY BE FURNISHED ADVANCED TRAINING UNDER AUTHORITY THERE CONTAINED, WITHOUT REGARD TO THE ELIGIBILITY REQUIREMENTS OF SECTION 2104, SINCE SUBSECTIONS (A) AND (D) OF SECTION 2107 CLEARLY CONTEMPLATE PARTICIPATION IN THE PROGRAM FOR A PERIOD OF 4 YEARS. IT WOULD SEEM, THEREFORE, THAT DESPITE THE FACT THAT SECTION 2104 IS ADDRESSED SPECIFICALLY TO THE MATTER OF ELIGIBILITY FOR ADVANCED TRAINING, THAT SECTION MAY NOT BE VIEWED AS THE SOLE SOURCE OF AUTHORITY FOR FURNISHING SUCH TRAINING. THE FACT THAT SUBSECTION (D) STATES THAT SECTION 2104 DOES NOT APPLY TO CADETS AND MIDSHIPMEN APPOINTED UNDER SECTION 2107 DOES NOT MAKE THEM INELIGIBLE FOR ADVANCED TRAINING AND THAT SUBSECTION PROBABLY WAS ENACTED TO NEGATIVE ANY POSSIBILITY OF AN INTERPRETATION OF THE LAW WHICH WOULD REQUIRE THAT SUCH PERSONS MEET THE ELIGIBILITY REQUIREMENTS OF SECTION 2104. SECTION 2107 HAS ITS OWN ELIGIBILITY REQUIREMENTS. SIMILARLY, SINCE SECTION 2103 (B) APPEARS TO FURNISH AUTHORITY FOR THE ENROLLMENT OF PERSONS FROM FOREIGN COUNTRIES IN THE 4-YEAR SENIOR ROTC COURSE OF TRAINING, WITH ATTENDANT ADVANCED TRAINING IN THE THIRD AND FOURTH YEARS OF THAT COURSE, IT EVIDENTLY WAS DEEMED APPROPRIATE TO INCLUDE SUCH ENROLLEES ALSO IN SUBSECTION (D) OF SECTION 2104 AND THUS MAKE CERTAIN THAT SUCH ENROLLEES WOULD NOT BE RELEASED FROM THE PROGRAM UNDER SUBSECTION (C) AT THE COMPLETION OF THE SECOND YEAR OF THE COURSE.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS AND IN VIEW OF THE MATTERS MENTIONED BELOW, IT IS CONCLUDED THAT FOREIGN STUDENTS ENROLLED IN THE SENIOR ROTC PROGRAM PURSUANT TO THE PROVISIONS OF SECTION 2103 (B) OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 ARE ELIGIBLE TO PARTICIPATE IN THE ADVANCED TRAINING PART OF THAT PROGRAM. THERE WAS ATTACHED TO YOUR LETTER AN OPINION OF THE GENERAL COUNSEL OF THE DEPARTMENT OF THE ARMY IN WHICH HE ARRIVED AT THE SAME CONCLUSION. THAT OPINION THERE IS SUMMARIZED THE HISTORY OF THE PRACTICE OF THE ARMY FOR MANY YEARS IN PERMITTING NONCITIZENS TO ATTEND THE FULL 4 YEARS OF THE SENIOR ARMY ROTC COURSE WITH THE KNOWLEDGE OF THE CONGRESS AND IT IS POINTED OUT THAT IN ENACTING THE 1964 LAW THE CONGRESS WAS ASKED TO REGULARIZE "THE LONG-STANDING PRACTICE OF PERMITTING FOREIGN STUDENTS TO PARTICIPATE IN THE SENIOR ROTC PROGRAM, INCLUDING ADVANCED TRAINING.'

PROVISION IS MADE IN SECTION 2110 FOR PROVIDING PARTICIPATING COLLEGES AND EDUCATIONAL INSTITUTIONS WITH THE REQUISITE UNIFORMS OR A MONETARY ALLOWANCE IN LIEU OF UNIFORMS IN KIND. YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.