B-159429, SEPTEMBER 9, 1966, 46 COMP. GEN. 202

B-159429, SEPTEMBER 9, 1966, 46 COMP. GEN. 202

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - LIMITATION ON COLLEGE YEARS. WHEN A COLLEGE COURSE IS INTERSPERSED WITH TOURS IN INDUSTRY AND A DEGREE IS EARNED IN 5 INSTEAD OF 4 YEARS, THE UNDERGRADUATE EXPENSES OF THE 4 YEAR SCHOLARSHIP PROGRAM AUTHORIZED BY THE RESERVE OFFICER'S TRAINING CORPS VITALIZATION ACT OF 1964, MAY NOT BE PAID OVER A 5-YEAR PERIOD, THE "BUT NOT FOR MORE THAN FOUR YEARS" PRESCRIBED FOR THE PAYMENT OF A MONTHLY SUBSISTENCE ALLOWANCE, CONTEMPLATING A PROGRAM TOTALING 4 ACADEMIC YEARS, EVEN THOUGH A SCHOLARSHIP PROGRAM IS NOT LIMITED TO A PERIOD OF 4 CONSECUTIVE YEARS, AND THE COST OF THE FIFTH YEAR OF ACADEMIC TRAINING MAY NOT BE PRORATED OVER THE PRECEDING SEMESTERS, 31 U.S.C. 529 CONSTITUTING A BAR TO THE ADVANCE PAYMENT OF PUBLIC FUNDS, ABSENT STATUTORY AUTHORITY FOR THE PAYMENT.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 9, 1966:

REFERENCE IS MADE TO LETTER OF AUGUST 1, 1966, FROM THE ASISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) REQUESTING A DECISION WHETHER IT IS LEGALLY PERMISSIBLE UNDER THE PROVISIONS OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, PUBLIC LAW 88-647, APPROVED OCTOBER 13, 1964, 78 STAT. 1063, 10 U.S.C. 2031 NOTE, TO:

A. PAY ALL UNDERGRADUATE EXPENSES OF A FOUR-YEAR RESERVE OFFICER'S TRAINING CORPS SCHOLARSHIP OVER A FIVE-YEAR PERIOD, THESE EXPENSES TO INCLUDE TUITION, FEES, BOOKS AND LABORATORY EXPENSES; OR;

B. PRORATE THE COST OF THE FIFTH YEAR OVER THE PRECEDING SEMESTERS IN ORDER TO COMPLY WITH THE FOUR-YEAR LIMITATION.

THE LETTER STATES THAT SECTION 2107 OF TITLE 10, U.S. CODE, APPEARS TO PROVIED THAT ROTC SCHOLARSHIPS MAY BE AWARDED FOR A MAXIMUM OF 4 YEARS, AND THAT DREXEL INSTITUTE OF TECHNOLOGY IS A COOPERATIVE INSTITUTION WHERE PERIODS ON CAMPUS ARE INTERSPERSED WITH TOURS IN INDUSTRY AND THE 4 YEARS OF COLLEGE LEADING TO A BACCALAUREATE DEGREE ARE ACTUALLY SPREAD OVER A 5- YEAR PERIOD, IT BEING THE POLICY TO CHARGE STUDENTS FOR TUITION AND FEES EACH SEMESTER WHETHER OR NOT THE STUDENT IS ON CAMPUS. IT IS FURTHER STATED THAT THE SEMESTER TUITION AND FEE COSTS AT DREXEL INSTITUTE ARE CORRESPONDINGLY LESS THAN AT OTHER COOPERATIVE INSTITUTIONS THOUGH THE TOTAL COST FOR THE ENTIRE PROGRAM IS ABOUT THE SAME, BUT THAT DREXEL INSTITUTE HAS EXPRESSED ITS WILLINGNESS TO MAKE AN EXCEPTION TO ITS POLICY FOR ARMY ROTC SCHOLARSHIP RECIPIENTS BY PRORATING THE COST OF THE FIFTH YEAR OVER THE PRECEDING SEMESTERS.

THE ASSISTANT SECRETARY STATES FURTHER THAT IT APPEARS THAT THE INTENT OF CONGRESS UNDER THE RESERVE OFFICERS' TRAINING CORPS PROGRAM IS TO PROVIDE ASSISTANCE FOR THE ENTIRE UNDERGRADUATE EDUCATION OF SPECIALLY SELECTED MEMBERS CONTEMPLATING A MINIMUM PARTICIPATION OF 4 YEARS AND THAT IT IS THE VIEW OF THE DEPARTMENT OF THE ARMY THAT LIMITING PAYMENTS TO 4 CALENDAR YEARS, EVEN THOUGH THE ACADEMIC AND MILITARY REQUIREMENTS OF THE 4-YEAR PROGRAM MIGHT BE SPREAD OVER 5 CALENDAR YEARS AT COMPARABLE COST, WOULD DISCRIMINATE AGAINST MEMBERS ATTENDING SCHOOLS HAVING PROGRAMS SIMILAR TO THAT OF DREXEL INSTITUTE.

THE 1964 LAW EXTENDED TO ALL MILITARY DEPARTMENTS THE 4-YEAR ROTC PROGRAM WITH SCHOLARSHIP ASSISTANCE THAT WAS ESTABLISHED FOR THE NAVY BY THE ACT OF AUGUST 13, 1946, CH. 962, 60 STAT. 1057, 34 U.S.C. 1020 (1952 ED.). SEE 42 COMP. GEN. 669, 671. SUBSECTION (C) OF SECTION 2107 PROVIDES THAT THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY PROVIDE FOR THE PAYMENT OF ALL EXPENSES IN HIS DEPARTMENT OF ADMINISTERING THE 4-YEAR FINANCIAL ASSISTANCE PROGRAM UNDER THAT SECTION, INCLUDING TUITION, FEES, BOOKS, AND LABORATORY EXPENSES, WHICH AT THE TIME OF ENACTMENT OF THE STATUTE WERE ESTIMATED AT $800 TO $850 A YEAR. SECTION 209/B) OF TITLE 37, U.S. CODE, AS AMENDED BY THE 1964 LAW PROVIDES THAT A STUDENT RECEIVING SCHOLARSHIP ASSISTANCE UNDER SECTION 2107/C) IS ENTITLED TO A SUBSISTENCE ALLOWANCE AT THE RATE OF $50 A MONTH WHILE ATTENDING LLEGE,"BUT NOT FOR MORE THAN FOUR YEARS;,

IN DISCUSSING THE FINANCIAL ASSISTANCE TO STUDENTS UNDER THE 4-YEAR ROTC PROGRAM, THE HOUSE COMMITTEE ON ARMED SERVICES SAID THAT THIS SCHOLARSHIP PROGRAM "COULD CONSIST OF A MAXIMUM OF 4 YEARS OR A MINIMUM OF 1-YEAR SCHOLARSHIP ASSISTANCE, OR ANY FIGURE IN BETWEEN;, SEE H. REPT. NO. 925, 88TH CONG; 1ST SESS. 22. THE SENATE COMMITTEE ON ARMED SERVICES STATED THAT:

* * * THIS SCHOLARSHIP ASSISTANCE COULD BE PROVIDED FOR A MINIMUM OF 1 YEAR OR A MAXIMUM OF 4 YEARS, AND WOULD BE VIRTUALLY THE SAME AS THAT NOW PROVIDED BY THE NAVY IN THE SO-CALLED HOLLOWAY PROGRAM.

THE COMMITTEE SAID THAT IT EXPECTED THE SCHOLARSHIP PROGRAMS OF THE ARMY AND THE AIR FORCE WOULD BE ADMINISTERED SUBSTANTIALLY IN THE SAME MANNER AS THE NAVY THEN ADMINISTERED THE HOLLOWAY PROGRAM. SEE S. REPT. NO. 1514, 88TH CONG; 2D SESS. 2, 3.

IN AN OPINION OF SEPTEMBER 12, 1949, THE JUDGE ADVOCATE GENERAL OF THE NAVY POINTED OUT THAT THE 1946 HOLLOWAY LAW LIMITED GOVERNMENT- FINANCED EDUCATION TO A PERIOD NOT EXCEEDING 4 ACADEMIC YEARS PER STUDENT, THAT NO STUDENT WAS ENTITLED TO RECEIVE RETAINER PAY (NOW SUBSISTENCE ALLOWANCE) AND OTHER MONETARY BENEFITS FOR A PERIOD IN EXCESS OF 4 ACADEMIC YEARS, AND THAT THE LEGISLATIVE HISTORY OF THE 1946 LAW INDICATED THAT PERIODS OF EDUCATION THAT EXCEED 4 YEARS MUST BE PAID FOR BY THE INDIVIDUAL CONCERNED ---DESPITE HIS SATISFACTORY ACADEMIC PERFORMANCE AT ALL TIMES. CONCLUDED,"A FORTIORI, THE GOVERNMENT DID NOT INTEND TO BE MORE LIBERAL WITH THOSE INDIVIDUALS WHO TAKE MORE THAN FOUR ACADEMIC YEARS TO ACQUIRE A NORMAL FOUR-YEAR DEGREE;, SEE NAVY C.M.O. NO. 3, 1950. PP. 92, 93.

NAVY REGULATIONS UNDER THE HOLLOWAY PROGRAM AND CURRENTLY APPLICABLE REGULATIONS PROVIDE THAT THE TOTAL TIME DURING WHICH A REGULAR ROTC STUDENT MAY BE RETAINED IN A REGULARLY ENROLLED NROTC STATUS, RECEIVING BENEFITS AND RETAINER PAY (SUBSISTENCE ALLOWANCE), MAY NOT EXCEED 4 ACADEMIC YEARS. IN CASES OF STUDENTS WHO ARE REGULARLY ENROLLED IN COLLEGE COOPERATIVE PROGRAMS REQUIRING ALTERNATE PERIODS OF EMPLOYMENT IN INDUSTRY OR BUSINESS AND NORMALLY REQUIRING 5 YEARS FOR COMPLETION OF THE REQUIREMENTS FOR A BACCALAUREATE DEGREE, LEAVE STATUS MAY BE ESTABLISHED DURING THE PERIODS IN WHICH THE STUDENT IS ENGAGED IN SUCH EMPLOYMENT AND IS NOT EFFECTIVELY IN RESIDENCE AT THE EDUCATIONAL INSTITUTION, OR UPON THE COMPLETION OF THE FOURTH YEAR OF HIS ACADEMIC PROGRAM IF HE HAS REMAINED IN RESIDENCE (ON A PART-TIME BASIS) THROUGHOUT 4 YEARS OF THE PROGRAM. A STUDENT ENROLLED IN A CURRICULUM NORMALLY REQUIRING 5 YEARS FOR COMPLETION WILL BE PLACED IN A LEAVE STATUS FOR ONE OF THE 5 YEARS IN ORDER THAT HE MAY COMPLETE THE CURRICULUM LEADING TO HIS DEGREE. WHILE IN SUCH LEAVE STATUS HE IS NOT ELIGIBLE TO RECEIVE THE COMPENSATION OR BENEFITS PAID TO, OR IN BEHALF OF, NROTC STUDENTS UNDER INSTRUCTION, NOR WILL HE BE REQUIRED TO TAKE ANY NAVAL SCIENCE COURSES. THE NAVY PREFERS THAT 5-YEAR STUDENTS TAKE LEAVE DURING AN INTERMEDIATE YEAR RATHER THAN IN THE FIFTH YEAR, BUT IN ANY EVENT MONETARY BENEFITS ARE LIMITED TO 4 ACADEMIC YEARS. SEE 32 CFR 711.311.

IT SEEMS REASONABLY CLEAR THAT IT WAS NOT THE INTENT OF CONGRESS THAT THE 4-YEAR ROTC SCHOLARSHIP PROGRAM OR THE SUBSISTENCE ALLOWANCE SHOULD NECESSARILY BE LIMITED TO A PERIOD OF 4 CONSECUTIVE YEARS, BUT RATHER THAT A PROGRAM TOTALING 4 ACADEMIC YEARS WAS CONTEMPLATED. WHERE THE UNDERGRADUATE PROGRAM IS SO ARRANGED THAT IT TAKES 5 YEARS TO COMPLETE THE REQUIREMENTS FOR A DEGREE, THERE IS NOTHING IN THE STATUTE THAT PRECLUDES PAYMENT OF THE SCHOLARSHIP ASSISTANCE AND SUBSISTENCE ALLOWANCE DURING THE FIFTH YEAR OF ACADEMIC TRAINING IF PAYMENT HAS NOT BEEN MADE FOR 4 YEARS. HOWEVER, IN VIEW OF THE SPECIFIC MONTHLY RATE OF SUBSISTENCE ALLOWANCE ESTABLISHED BY THE STATUTE FOR ROTC STUDENTS AND THE STATUTORY LIMITATION TO 4 YEARS OF THAT BENEFIT, THE STATUTORY PRESCRIPTION OF THE 4-YEAR ROTC SCHOLARSHIP ASSISTANCE PROGRAM, AS WELL AS THE DISCUSSIONS IN THE LEGISLATIVE HISTORY OF THE 1946 AND THE 1964 LAWS CONCERNING THE MAXIMUM 4 -YEAR ROTC PROGRAM, THERE IS NO AUTHORITY OF LAW FOR PAYMENT OF SUCH BENEFITS FOR MORE THAN 4 ACADEMIC YEARS. QUESTION A IS ANSWERED ACCORDINGLY.

THE PROVISIONS OF 31 U.S.C. 529 CONSTITUTE A STATUTORY BAR TO THE ADVANCE PAYMENT OF PUBLIC FUNDS UNLESS AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW, AND HENCE THE COST OF ACADEMIC TRAINING IN THE FIFTH YEAR MAY NOT BE PRORATED OVER THE PRECEDING SEMESTERS. QUESTION B MUST, THEREFORE, BE ANSWERED IN THE NEGATIVE.