B-168880, APRIL 8, 1970, 49 COMP. GEN. 679

B-168880, APRIL 8, 1970, 49 COMP. GEN. 679

APPROPRIATIONS -- RESTRICTIONS -- LEGAL EDUCATION THE TUITION CHARGES FOR THE LEGAL EDUCATION OF ROTC CADETS ENROLLED DURING THE ACADEMIC YEAR 1968-1969 UNDER 10 U.S.C. 2107, FALL WITHIN THE PROHIBITION IN SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR 1969 AND, THEREFORE, PAYMENT OF THE CHARGES IS PRECLUDED, EVEN THOUGH THE PROHIBITION AND ITS IMPLEMENTING REGULATION, PARAGRAPH 22-900 OF THE ARMED SERVICES PROCUREMENT REGULATION, WERE APPROVED AFTER THE CADETS WERE ENROLLED. THE RESTRICTION AGAINST THE PAYMENT OF TUITION FEES FOR LEGAL TRAINING FIRST APPEARED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR FISCAL YEAR 1953, AND THE EXCLUSION IN THAT ACT OF STUDENTS IN ROTC UNITS WAS REMOVED IN THE 1954 ACT, AND THE AUTHORITY IN 10 U.S.C. 2107(C) TO PAY THE EXPENSES OF ROTC CADETS ELIGIBLE TO PARTICIPATE IN EDUCATIONAL ASSISTANCE PROGRAMS DOES NOT EXEMPT THE CADETS FROM THE LEGAL TRAINING RESTRICTION CONTAINED IN THE ANNUAL DEPARTMENT OF DEFENSE APPROPRIATION ACTS, INCLUDING THE 1969 ACT.

TO CAPTAIN PAUL E. HUGHES, DEPARTMENT OF THE AIR FORCE, APRIL 8, 1970:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1970 (FILE REFERENCE BCAF), WITH ATTACHMENTS, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON SEVERAL VOUCHERS COVERING TUITION CHARGES FOR LEGAL EDUCATION OF ROTC CADETS ENROLLED DURING THE ACADEMIC YEAR 1968-1969 (SEPTEMBER-JUNE) UNDER SECTION 2107 OF TITLE 10, U.S.C. PAYMENT OF SUCH CHARGES IS QUESTIONED BECAUSE OF THE PROHIBITION IN SECTION 517 OF THE ACT OF OCTOBER 17, 1968, PUBLIC LAW 90-580, 82 STAT. 1132. YOUR REQUEST WAS FORWARDED HERE UNDER DATE OF JANUARY 22, 1970, BY CHIEF, CONTRACTUAL, ACCOUNTABILITY, AND ADMINISTRATION SYSTEMS BRANCH, DIRECTORATE OF ACCOUNTING OPERATIONS, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO.

THE RESTRICTION AGAINST THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF TUITION FOR LEGAL TRAINING, WHICH YOU CITE, IS CONTAINED IN SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1969, PUBLIC LAW 90-580, 82 STAT. 1132, APPROVED OCTOBER 17, 1968, WHICH PROVIDES AS FOLLOWS:

NONE OF THE FUNDS PROVIDED IN THIS ACT SHALL BE AVAILABLE FOR TRAINING IN ANY LEGAL PROFESSION NOR FOR THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION: PROVIDED, THAT THIS LIMITATION SHALL NOT APPLY TO THE OFF-DUTY TRAINING OF MILITARY PERSONNEL AS PRESCRIBED BY SECTION 521 OF THIS ACT. SECTION 521 REFERRED TO IN SECTION 517 PROVIDES THAT:

NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAYMENT OF MORE THAN 75 PER CENTUM OF CHARGES OF EDUCATIONAL INSTITUTIONS FOR TUITION OR EXPENSES FOR OFF-DUTY TRAINING OF MILITARY PERSONNEL, NOR FOR THE PAYMENT OF ANY PART OF TUITION OR EXPENSES FOR SUCH TRAINING FOR COMMISSIONED PERSONNEL WHO DO NOT AGREE TO REMAIN ON ACTIVE DUTY FOR TWO YEARS AFTER COMPLETION OF SUCH TRAINING.

IF WE HOLD THAT THE RESTRICTION IN SECTION 517 IS APPLICABLE TO TUITION CHARGES FOR LEGAL EDUCATION OF ROTC CADETS ENROLLED DURING THE ACADEMIC YEAR 1968-1969 (SEPTEMBER-JUNE), YOU ASK WHETHER WE WOULD "OBJECT TO PAYMENT OF THESE CLAIMS DUE TO A MISUNDERSTANDING AND DELAY IN PUBLISHING APPROPRIATE DIRECTIVES TO EFFECT CONGRESSIONAL LIMITATIONS IMPOSED IN APPROPRIATION ACTS."

YOU SAY THAT THE INVOICES (RECEIVED WITH YOUR LETTER) ARE FROM SIX CIVILIAN INSTITUTIONS REPRESENTING CLAIMS FOR LEGAL EDUCATION TUITION CHARGES OF SEVEN CADETS WHO WERE ACCEPTED AND ENROLLED IN THE ADVANCED ROTC PROGRAM AS AUTHORIZED IN 10 U.S.C. 2107. YOU FURTHER STATE THAT WHILE SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR 1969 IMPLIES PROHIBITION OF LEGAL TRAINING FOR ROTC CADETS, THAT ACT WAS NOT APPROVED UNTIL OCTOBER 17, 1968, OR 1 1/2 MONTHS AFTER THE STUDENTS WERE ENROLLED IN THE ROTC PROGRAM. YOU REFER TO PARAGRAPH 22 -900, ARMED SERVICES PROCUREMENT REGULATION, WHICH YOU SAY FIRST PROHIBITED PAYMENT OF FUNDS FOR LEGAL TRAINING EFFECTIVE SEPTEMBER 1968, AND THAT SIMILAR RESTRICTIONS ARE CONTAINED IN THE JANUARY 1969 REGULATIONS.

CONCERNING THE PROVISION IN THE STANDARD EDUCATIONAL SERVICES CONTRACT THAT "NO CHANGE TO OR TERMINATION OF THIS CONTRACT SHALL AFFECT ANY STUDENTS ENROLLED PRIOR TO THE EFFECTIVE DATE OF SUCH ACTION," YOU SAY THAT CLAIMS ARE FOR THE ACADEMIC YEAR 1968-1969, AND THAT STUDENTS WERE ACCEPTED AND ENROLLED BY OFFICIAL ORDERS DURING SEPTEMBER 1968.

AS A POSSIBLE BASIS FOR JUSTIFYING PAYMENT OF THE CLAIMS, YOU POINT OUT (A) THAT THE STUDENTS WERE ENROLLED UNDER A VALID CONTRACT PRIOR TO KNOWLEDGE AND EFFECTIVE DATE OF ARMED SERVICES PROCUREMENT REGULATION CHANGES; (B) THAT HISTORICALLY, STUDENTS HAVE BEEN PERMITTED TO CONTINUE TRAINING IF ENROLLED PRIOR TO THE CHANGES IN POLICY; (C) THAT CONGRESS DID NOT INTEND TO DENY TUITION FOR LEGAL TRAINING FOR ROTC STUDENTS ENROLLED UNDER THE ROTC VITALIZATION ACT; AND (D) THAT IF THE 1969 FISCAL YEAR APPROPRIATION ACT IS CONSTRUED TO PROHIBIT THE PAYMENT OF TUITION FOR LEGAL TRAINING FOR ROTC MEMBERS, SUCH ACT WOULD HAVE BEEN RETROACTIVE TO JULY 1, 1968, AND WOULD DENY STUDENTS THE PRECEDENT FOR CONTINUING OR COMPLETING TRAINING.

AS POINTED OUT BY YOU, THE RESTRICTION AGAINST PAYMENT OF TUITION FEES FOR LEGAL TRAINING WAS FIRST INCORPORATED IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1953. SECTION 636 OF THAT ACT, 66 STAT. 537, RESTRICTED PAYMENT OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION OR FOR THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION IN EXCESS OF 20 PERSONS PER YEAR, "EXCLUSIVE OF STUDENTS IN ROTC UNITS." SECTION 636 FURTHER PROVIDED THAT NOTHING CONTAINED IN THAT ACT SHOULD PROHIBIT PERSONS THEN ATTENDING LAW COURSES FROM COMPLETING SAME.

A REVIEW OF THE LEGISLATIVE HISTORY OF THE 1953 APPROPRIATION ACT DISCLOSES THAT THE RESTRICTION AGAINST THE USE OF APPROPRIATED FUNDS FOR "TRAINING IN ANY LEGAL PROFESSION" AND THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION WAS INTENDED TO PROHIBIT THE TRAINING OF INDIVIDUALS FOR THE PURPOSE OF QUALIFYING THEM AS LAWYERS. SEE ENCLOSED COPY OF OUR DECISION OF JULY 29, 1959, 39 COMP. GEN. 58, FOR A DISCUSSION OF THE LEGISLATIVE HISTORY OF SECTION 636 (ORIGINALLY DESIGNATED AS SECTION 637 IN THE HOUSE BILL, H.R. 7391, 82ND CONGRESS).

THE DEPARTMENT OF DEFENSE APPROPRIATION ACT FOR THE FISCAL YEAR 1954, 67 STAT. 336, NOT ONLY CONTINUED THE LEGAL TRAINING RESTRICTION AS PROVIDED IN SECTION 633, BUT DELETED THE EXEMPTION OF STUDENTS IN ROTC UNITS. THAT SECTION FURTHER PROVIDED THAT "NOTHING CONTAINED IN THIS ACT SHALL PROHIBIT PERSONS NOW ATTENDING LAW COURSES FROM COMPLETING SAME." WE HAVE BEEN UNABLE TO DETERMINE FROM THE LEGISLATIVE HISTORY OF THE 1954 APPROPRIATION ACT WHY IT WAS CONCLUDED THAT STUDENTS IN ROTC UNITS SHOULD NO LONGER BE EXEMPT FROM THE LEGAL TRAINING RESTRICTION. IT IS NOTED THAT THE SENATE COMMITTEE ON APPROPRIATIONS RECOMMENDED THE CHANGE IN THE LANGUAGE OF SECTION 633, AS PASSED BY THE HOUSE, WHICH DELETED THE EXEMPTION RELATING TO STUDENTS IN ROTC UNITS. SEE PAGE 10 OF S. REPT. NO. 601 TO ACCOMPANY H.R. 5969 WHICH BECAME THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1954.

THE LEGAL TRAINING PROVISION IN SECTION 724 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, 68 STAT. 355, REMOVED THE RESTRICTION AGAINST THE USE OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION SO FAR AS CONCERNS "OFF-DUTY TRAINING" OF MILITARY PERSONNEL AS PRESCRIBED BY SECTION 730 OF THAT ACT.

SIMILAR PROVISIONS IN SECTIONS 517 AND 521 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 74 STAT. 352, 353, WERE CONSTRUED IN A CASE INVOLVING A PROPOSAL TO PAY A PORTION OF THE LAW SCHOOL TUITION FOR SELECTED GRADUATES IN THE ROTC PROGRAM WHO WOULD BE APPOINTED OFFICERS IN THE REGULAR ARMY, BE GRANTED EXCESS LEAVE WITHOUT PAY AND ALLOWANCES AND BE PERMITTED TO ATTEND LAW SCHOOL AT THEIR OWN EXPENSE AND WE SAID IN OUR DECISION OF MARCH 10, 1961, 40 COMP. GEN. 505, 507, THAT THE TERM "OFF- DUTY TRAINING" CONTEMPLATES A MEMBER BEING IN AN ACTIVE MILITARY STATUS, PERFORMING REGULAR DUTY ATTENDANT TO SUCH STATUS AND CONTEMPORANEOUSLY FURTHERING HIS EDUCATION ON HIS OWN TIME WHILE NOT ENGAGED IN MILITARY DUTIES. WE CONCLUDED THAT THE OFF-DUTY TRAINING EXEMPTION TO THE PROHIBITION AGAINST USING APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION WAS NOT APPLICABLE IN THE SITUATION THERE STATED. THIS DECISION WOULD SEEM TO BE EQUALLY APPLICABLE TO THE ROTC STUDENTS DESCRIBED IN YOUR SUBMISSION.

THE SAVINGS CLAUSE IN SECTION 636 OF THE 1953 APPROPRIATION ACT, WHICH PROVIDED FOR THE CONTINUATION OF LEGAL TRAINING FOR THOSE PERSONS THEN ATTENDING LAW COURSES AND PAID FOR FROM APPROPRIATED FUNDS TERMINATED WITH THE FISCAL YEAR ENDING JUNE 30, 1957 (SECTION 619, 70 STAT. 471).

UNDER SECTION 2107(C) OF TITLE 10, U.S. CODE, WHICH WAS ADDED BY SECTION 201 OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, 78 STAT. 1063, THE SECRETARY CONCERNED IS AUTHORIZED TO PAY ALL EXPENSES FOR ROTC CADETS WHO ARE ELIGIBLE TO PARTICIPATE IN THE FINANCIAL ASSISTANCE PROGRAM, INCLUDING TUITION, FEES, BOOKS, AND LABORATORY EXPENSES. YOU STATE THAT THIS PROVISION OF LAW "DOES NOT EXCLUDE CANDIDATES BECAUSE OF ANY DEGREE PROGRAM."

WE FIND NOTHING IN THE LAW OR THE LEGISLATIVE HISTORY OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 WHICH WOULD WARRANT A CONCLUSION THAT CONGRESS INTENDED TO EXEMPT ROTC STUDENTS FROM THE LEGAL TRAINING RESTRICTION CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF DEFENSE, INCLUDING SECTION 517 OF THE 1969 ACT. HAD CONGRESS SO INTENDED, WE BELIEVE APPROPRIATE LANGUAGE WOULD HAVE BEEN USED TO EXPRESS SUCH INTENTION.

THE FACT THAT PUBLIC LAW 90-580 WAS ENACTED INTO LAW (OCTOBER 17, 1968) 1 -1/2 MONTHS AFTER THE STUDENTS WERE ENROLLED IN THE ROTC PROGRAM AFFORDS NO BASIS FOR CONCLUDING THAT THE LEGAL TRAINING RESTRICTION PROVISION WAS NOT IN EXISTENCE WHEN THE STUDENTS ENROLLED. IN THIS CONNECTION, SEE SECTION 101(B) OF THE JOINT RESOLUTION, PUBLIC LAW 90 366, DATED JUNE 29, 1968, 82 STAT. 275, MAKING CONTINUING APPROPRIATIONS FOR THE FISCAL YEAR 1969, AND FOR OTHER PURPOSES. THE LEGAL TRAINING RESTRICTION APPLICABLE ON JUNE 30, 1968, CONTINUED TO BE IN EFFECT AND WAS CARRIED FORWARD INTO THE 1969 FISCAL YEAR APPROPRIATION ACT UPON THE ENACTMENT OF PUBLIC LAW 90 -580. AS INDICATED ABOVE, THAT PRECEDENT, IF IT BE THAT, FOR CONTINUING OR COMPLETING LEGAL TRAINING FOR THOSE PERSONS THEN ATTENDING LAW COURSES TERMINATED WITH THE FISCAL YEAR ENDING JUNE 30, 1957.

THE FACT THAT IT WAS NOT UNTIL SEPTEMBER 1, 1968, THAT THE ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 22-900 (ADDED BY REVISION NO. 30), INCLUDED A PROVISION PROHIBITING PAYMENT OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION AFFORDS NO BASIS FOR AUTHORIZING PAYMENT CONTRARY TO AN EXPRESS PROVISION IN THE LAW WHICH HAD BEEN REENACTED ANNUALLY FOR A NUMBER OF YEARS.

SINCE, IN 1954, CONGRESS SAW FIT TO REMOVE THE EXEMPTION AFFORDED STUDENTS IN ROTC UNITS FROM THE LEGAL TRAINING RESTRICTION AND HAS CONTINUED SUBSTANTIALLY THE SAME LANGUAGE IN SUBSEQUENT DEPARTMENT OF DEFENSE APPROPRIATION ACTS ENACTED TO DATE, IT IS OUR VIEW THAT IN THE ABSENCE OF SOME OTHER SPECIFIC STATUTORY AUTHORITY, ROTC STUDENTS PURSUING DEGREES IN LAW, AS INDICATED IN YOUR SUBMISSION AND ENCLOSURES, FALL WITHIN THE PROHIBITION IN SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1969, SO AS TO PRECLUDE PAYMENT OF THEIR TUITION FEES FROM APPROPRIATED FUNDS.

ACCORDINGLY, PAYMENT ON THE VOUCHERS IS NOT AUTHORIZED AND THE VOUCHERS AND SUPPORTING PAPERS WILL BE RETAINED HERE.