B-159429, JAN 13, 1971, 50 COMP GEN 486

B-159429, JAN 13, 1971, 50 COMP GEN 486

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - PRIOR MILITARY TRAINING - EXCUSED SERVICE STUDENTS ENROLLED IN THE RESERVE OFFICERS' TRAINING CORPS (ROTC) UNDER 10 U.S.C. 2107, WHICH AUTHORIZES SCHOLARSHIP BENEFITS, MAY ON THE BASIS OF THE CONCLUSION IN 46 COMP. GEN. 15 BE CONSIDERED TO BE WITHIN THE PURVIEW OF 10 U.S.C. 2108(C), AND THE SECRETARY CONCERNED MAY EXCUSE THEM FROM ALL OR PART OF THE GENERAL MILITARY COURSE (GMC) REQUIREMENTS, AND THE STUDENTS ARE ELIGIBLE TO RECEIVE THE FINANCIAL BENEFITS OF A SCHOLARSHIP AWARD. THEREFORE, A SCHOLARSHIP MAY BE OFFERED AND ALL OR PART OF THE GMC WAIVED FOR AN INCOMING COLLEGE FRESHMAN DESIGNATED TO RECEIVE A 4-YEAR ROTC COLLEGE SCHOLARSHIP; A COLLEGE STUDENT ENROLLED AS A TRANSFER FROM ANOTHER INSTITUTION DURING HIS FRESHMAN OR SOPHOMORE YEAR; AND A STUDENT CURRENTLY ENROLLED AT THE INSTITUTION BUT IN AN ROTC PROGRAM DURING HIS FRESHMAN OR SOPHOMORE YEAR. MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - SCHOLARSHIP BENEFITS - MILITARY TRAINING IF A STUDENT SUCCESSFULLY COMPLETES THE FIRST 2 YEARS OF A 4-YEAR SENIOR RESERVE OFFICERS' TRAINING CORPS COURSE FOR ADMISSION TO THE ADVANCED TRAINING PRESCRIBED IN 10 U.S.C. 2104(B)(6) BY REASON OF PRIOR MILITARY EDUCATION AND TRAINING, THE 6 WEEKS' FIELD TRAINING OR PRACTICE CRUISE PROVISION OF THE SECTION IS NOT A PRELIMINARY REQUIREMENT FOR ADMISSION TO THE "ADVANCED COURSE" - THE LAST 2 YEARS OF COLLEGE - WHERE THE STUDENT QUALIFIES FOR EXCUSAL OF THE GENERAL MILITARY COURSE UNDER 10 U.S.C. 2108(C). MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - SCHOLARSHIP BENEFITS - MILITARY TRAINING THE APPLICATION OF 10 U.S.C. 2108(C), PROVIDING FOR THE SECRETARY CONCERNED TO EXCUSE ALL OR PART OF THE GENERAL MILITARY COURSE REQUIREMENTS FOR STUDENTS ENROLLED IN THE RESERVE OFFICERS' TRAINING CORPS, IS NOT LIMITED TO THE SCHOLARSHIP PROGRAM PROVIDED IN 10 U.S.C. 2107, BUT THE EXCUSAL AUTHORITY EXTENDS AS WELL TO THE ADVANCED TRAINING PROGRAM PRESCRIBED IN 10 U.S.C. 2104. A STUDENT WHO IS ELIGIBLE FOR EXCUSAL ON THE BASIS OF HIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH, INSOFAR AS THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 (10 U.S.C. 2101-2111) IS CONCERNED, IS ELIGIBLE FOR THE FINANCIAL BENEFITS PROVIDED IN EITHER 10 U.S.C. 2104 OR 10 U.S.C. 2107, IF HE OTHERWISE QUALIFIES.

TO THE SECRETARY OF DEFENSE, JANUARY 13, 1971:

BY LETTER OF DECEMBER 2, 1970, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) HAS REQUESTED A DECISION ON CERTAIN QUESTIONS CONCERNING THE RIGHT OF STUDENTS ENROLLED IN THE RESERVE OFFICERS' TRAINING CORPS UNDER 10 U.S.C. 2107 (WHICH AUTHORIZES SCHOLARSHIP BENEFITS) TO BE EXCUSED FROM ALL OR PART OF THE GENERAL MILITARY COURSE UNDER 10 U.S.C. 2108(C) AND RECEIVE THE FINANCIAL BENEFITS OF THE SCHOLARSHIP. THE QUESTIONS, TOGETHER WITH A DISCUSSION PERTAINING THERETO, ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 447.

THE QUESTIONS ARE AS FOLLOWS:

1. DO THE PROVISIONS OF 10 U.S.C. 2108(C) APPLY TO ROTC APPOINTMENTS UNDER 10 U.S.C. 2107?

2. IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE:

A. MAY AN INCOMING COLLEGE FRESHMAN, DESIGNATED TO RECEIVE A 4-YEAR ROTC COLLEGE SCHOLARSHIP UNDER 10 U.S.C. 2107 BE EXCUSED FROM THE ENTIRE GENERAL MILITARY COURSE (GMC) UNDER THE PROVISIONS OF 10 U.S.C. 2108(C) AND RECEIVE THE BENEFITS OF THE SCHOLARSHIP?

B. MAY AN INCOMING COLLEGE STUDENT BE SELECTED FOR A SCHOLARSHIP UNDER 10 U.S.C. 2107 IF HE POSSESSES THE SAME PREREQUISITES FOR EXCUSED GMC, BUT IS ENROLLED AS A TRANSFER FROM ANOTHER INSTITUTION DURING HIS FRESHMAN OR SOPHOMORE YEAR?

C. MAY A STUDENT CURRENTLY ENROLLED AT THE INSTITUTION BUT IN AN ROTC PROGRAM DURING HIS FRESHMAN OR SOPHOMORE YEAR BE SELECTED FOR A SCHOLARSHIP UNDER 10 U.S.C. 2107 IF HE POSSESSES THE SAME PREREQUISITES FOR EXCUSED GMC UNDER 10 U.S.C. 2108(C) AND RECEIVE THE BENEFITS OF THE SCHOLARSHIP?

THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, PUBLIC LAW 88-647, 78 STAT. 1063, 10 U.S.C. 2101-2111, PROVIDES FOR TWO TYPES OF PROGRAMS FOR THE SENIOR ROTC TRAINING IN CIVILIAN COLLEGES AND OTHER EDUCATIONAL INSTITUTIONS OF HIGHER LEARNING: (1) A 4-YEAR SENIOR ROTC PROGRAM DIVIDED INTO THE BASIC COURSE FOR THE FIRST 2 YEARS OF COLLEGE AND THE "ADVANCED TRAINING" COURSE (10 U.S.C. 2101(3), 2104) FOR THE THIRD AND FOURTH YEARS OF COLLEGE, WITH A SUBSISTENCE ALLOWANCE OF $40 TO $50 A MONTH DURING THE "ADVANCED TRAINING" COURSE AND (2) A 4-YEAR PROGRAM UNDER 10 U.S.C. 2107 WHERE STUDENTS ARE APPOINTED CADETS OR MIDSHIPMEN, AS APPROPRIATE, AND RECEIVE SCHOLARSHIP ASSISTANCE FOR TUITION, FEES, BOOKS, AND LABORATORY EXPENSES THEN ESTIMATED TO BE ABOUT $800 TO $850 A YEAR AND A SUBSISTENCE ALLOWANCE OF $50 A MONTH.

UNDER BOTH PROGRAMS THE STUDENTS MUST BECOME MEMBERS OF THE ARMED SERVICES WITH AN OBLIGATION TO ACCEPT APPOINTMENTS AS COMMISSIONED OFFICERS (USUALLY UPON GRADUATION) AND TO SERVE ON ACTIVE DUTY IN SUCH CAPACITY FOR A PERIOD PRESCRIBED BY LAW. THE PURPOSE OF THE RESERVE OFFICERS' TRAINING CORPS PROGRAMS IS TO PROVIDE A SOURCE AND STEADY FLOW OF SELECTED, HIGH QUALITY JUNIOR OFFICERS TO THE ARMED SERVICES.

THE 1964 LAW PRESCRIBES CERTAIN CONDITIONS TO APPOINTMENT AS A CADET OR MIDSHIPMAN AND IN 10 U.S.C. 2107(A) PROVIDES THAT -

*** A MEMBER WHOSE ENROLLMENT IN THE SENIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM CONTEMPLATE LESS THAN FOUR YEARS OF PARTICIPATION IN THE PROGRAM MAY NOT BE APPOINTED A CADET OR MIDSHIPMAN UNDER THIS SECTION, OR RECEIVE ANY FINANCIAL ASSISTANCE AUTHORIZED BY THIS SECTION.

HOWEVER, SUBSECTION (A) OF 10 U.S.C. 2108 AUTHORIZES THE SECRETARY OF A MILITARY DEPARTMENT TO GIVE ANY PERSON WHO HAS SERVED ON ACTIVE DUTY IN ANY ARMED SERVICE SUCH ADVANCED STANDING IN THE PROGRAM AS MAY BE JUSTIFIED BY HIS EDUCATION AND TRAINING, AND SUBSECTION (B) THEREOF PROVIDES THAT, IN DETERMINING A MEMBER'S ELIGIBILITY FOR ADVANCED TRAINING, CREDIT MAY BE GIVEN FOR ANY MILITARY TRAINING THAT IS SUBSTANTIALLY EQUIVALENT IN KIND TO THAT PRESCRIBED FOR ADMISSION TO ADVANCED TRAINING. SUBSECTION (C) OF 10 U.S.C. 2108 PROVIDES:

THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY EXCUSE FROM A PORTION OF THE PRESCRIBED COURSE OF MILITARY INSTRUCTION, INCLUDING FIELD TRAINING AND PRACTICE CRUISES, ANY PERSON FOUND QUALIFIED ON THE BASIS OF HIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH.

SUBSECTION (B)(6) OF 10 U.S.C. 2104 PROVIDES THAT TO BE ELIGIBLE FOR CONTINUATION OR INITIAL ENROLLMENT IN THE PROGRAM FOR ADVANCED TRAINING A PERSON MUST, AMONG OTHER THINGS, COMPLETE SUCCESSFULLY -

(A) THE FIRST TWO YEARS OF A FOUR-YEAR SENIOR RESERVE OFFICERS' TRAINING COURSE; OR

(B) FIELD TRAINING OR A PRACTICE CRUISE OR NOT LESS THAN SIX WEEKS' DURATION WHICH IS PRESCRIBED BY THE SECRETARY CONCERNED AS A PRELIMINARY REQUIREMENT FOR ADMISSION TO THE ADVANCED COURSE.

DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 378 STATED THAT THE ABOVE-QUOTED PROVISION OF 10 U.S.C. 2107(A) MIGHT POSSIBLY BE VIEWED AS PRECLUDING APPOINTMENT OF A STUDENT TO THE SCHOLARSHIP PROGRAM PROVIDED IN 10 U.S.C. 2107 IF HE CONTEMPLATES LESS THAN 4 YEARS OF PARTICIPATION IN THE (MILITARY TRAINING) PROGRAM AND REGULATIONS WERE PROMULGATED THAT WOULD PERMIT EXCUSING OR WAIVING ANY OF THE MILITARY TRAINING PORTION OF THE (4-YEAR) PROGRAM BECAUSE HE HAD ALREADY HAD SUCH TRAINING OR EXPERIENCE. AS A RESULT, IT WAS STATED THAT ONE MILITARY DEPARTMENT DID NOT EXCUSE ANY ROTC MILITARY TRAINING BY SCHOLARSHIP STUDENTS, REGARDLESS OF PRIOR TRAINING OR EXPERIENCE, EVEN THOUGH NONSCHOLARSHIP STUDENTS MAY NOT BE REQUIRED TO TAKE MILITARY TRAINING WHICH THE DEPARTMENT HAD CONCLUDED WOULD ONLY BE REPETITIVE AND NOT CONTRIBUTORY TO THE BEST INTERESTS OF THE STUDENT OR THE MILITARY SERVICE.

IN DECISION OF JULY 7, 1966, 46 COMP. GEN. 15, IN RESPONSE TO THE QUESTION PRESENTED IN COMMITTEE ACTION NO. 378, THIS OFFICE HELD THAT A PERSON WHO IS AWARDED AN ROTC SCHOLARSHIP UNDER 10 U.S.C. 2107 WOULD NOT LOSE HIS RIGHT TO CONTINUE TO RECEIVE THE FINANCIAL ASSISTANCE AUTHORIZED UNDER THAT PROGRAM MERELY BECAUSE HE WAS EXCUSED BY THE APPROPRIATE SECRETARY FROM A PORTION OF THE PRESCRIBED PROGRAM OF MILITARY INSTRUCTION UNDER AUTHORITY CONTAINED IN 10 U.S.C. 2108(C).

COMMITTEE ACTION NO. 447 STATES THAT AFROTC HAS OPPORTUNITIES TO SELECT OUTSTANDING STUDENTS WHO POSSESS ACCEPTABLE PREREQUISITE EDUCATION AND EXPERIENCE FOR EXCUSED GMC (GENERAL MILITARY COURSE) UNDER 10 U.S.C. 2108(C). APPARENTLY THE TERM "GMC" RELATES TO THE "BASIC COURSE" OF MILITARY INSTRUCTION PRESCRIBED FOR THE FIRST 2 YEARS OF COLLEGE, AS DISTINGUISHED FROM THE "ADVANCED TRAINING" DEFINED IN 10 U.S.C. 2101 AS THE MILITARY TRAINING OFFERED TO STUDENTS IN THE THIRD AND FOURTH YEAR OF A 4-YEAR SENIOR ROTC COURSE, OR THE EQUIVALENT PERIOD OF TRAINING IN AN APPROVED 2-YEAR SENIOR ROTC COURSE. SEE PARAGRAPHS 2 AND 7 OF AFR 45-48, APRIL 30, 1970, AND 32 CFR 870.2(R), 870.7, 870.8, AND 870.20.

COMMITTEE ACTION NO. 447 SUGGESTS THAT THE SPECIFIC DIFFERENCE BETWEEN THE STUDENTS HERE INVOLVED AND THOSE WHOSE RIGHTS WERE CONSIDERED IN OUR DECISION OF JULY 7, 1966, 46 COMP. GEN. 15, APPEARS TO BE IN THE DESIGNATIONS OF THE TYPE OF ENROLLMENT, THE 2-YEAR PROGRAM OR 4-YEAR PROGRAM. TWO POSSIBLE POINTS OF VIEW ARE STATED AS FOLLOWS:

A. THOSE STUDENTS OBTAINING AN EXCUSED GMC (ACCREDITATION), DO NOT MEET OR HAVE TO COMPLY WITH THE REQUIREMENTS FOR ENTRY INTO THE 2-YEAR PROGRAM; THEY SHOULD BE CONSIDERED AS IN THE 4-YEAR PROGRAM AND THUS ELIGIBLE FOR SCHOLARSHIP. TO BE IN THE 2-YEAR PROGRAM, THEY WOULD BE REQUIRED TO ATTEND THE SIX WEEKS' SUMMER TRAINING (FIELD TRAINING). A WAIVER THUS WOULD BE SUPERFLUOUS. ON THE OTHER HAND, A PERSON SEEKING AN EXCUSED GMC MUST BE CONSIDERED IN THE 4-YEAR PROGRAM. OTHERWISE, THERE WOULD BE NO NECESSITY FOR THE EXCUSAL. A PERSON RECEIVING AN EXCUSAL ON ACCOUNT OF PRIOR MILITARY SERVICE OR EDUCATION SHOULD BE CONSIDERED TO HAVE PARTICIPATED FOR FOUR YEARS IN SENIOR ROTC.

B. OR, ANY ROTC CADET WHO HAS HAD THE FULL GMC PARTICIPATION EXCUSED SHOULD BE CONSIDERED A MEMBER OF THE 2-YEAR PROGRAM. AS A MEMBER OF THE 2 -YEAR PROGRAM, THE CADET WOULD NOT BE ENTITLED TO COMPETE FOR AN AFROTC SCHOLARSHIP. TO WAIVE THE ENTIRE GMC PROGRAM WOULD BE IN EFFECT INSTITUTING A 2-YEAR SCHOLARSHIP PROGRAM. CONGRESS DID NOT ESTABLISH THE PROGRAM FOR CADETS WHO ARE INVOLVED ONLY IN THE 2-YEAR PROGRAM.

IN AGREEMENT WITH THE CONCLUSION REACHED IN OUR DECISION OF JULY 7, 1966, 46 COMP. GEN. 15, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

DURING CONSIDERATION OF THE BILL WHICH BECAME THE 1964 LAW, THE HOUSE COMMITTEE ON ARMED SERVICES SAID (WITH RESPECT TO FINANCIAL ASSISTANCE TO STUDENTS UNDER THE 4-YEAR SENIOR ROTC PROGRAM) 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 SAID:

*** 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.

SEE S. REPT. NO. 1514, 88TH CONG., 2D SESS. 2.

IN VIEW OF SUCH COMMENTS, IT SEEMS CLEAR THAT THE MINIMUM "FOUR YEARS OF PARTICIPATION" IN THE PROGRAM MENTIONED IN 10 U.S.C. 2107(A) REFERS TO PARTICIPATION IN THE 4-YEAR MILITARY SERVICE AND TRAINING PROGRAM AND EQUIVALENT PORTIONS THEREOF PREVIOUSLY RECEIVED, THE EQUIVALENCY OF WHICH IS TO BE DETERMINED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. CONSEQUENTLY, A STUDENT WHO DOES NOT IN FACT PARTICIPATE IN THE EDUCATIONAL INSTITUTION'S SENIOR ROTC TRAINING PROGRAM FOR 4 YEARS MAY RECEIVE THE FINANCIAL ASSISTANCE THERE AUTHORIZED IF THE STUDENT IS EXCUSED BY THE SECRETARY CONCERNED FROM PORTIONS OF THE 4-YEAR PROGRAM ON THE BASIS OF HIS HAVING PERFORMED EQUIVALENT MILITARY TRAINING.

WHERE THE ENTIRE GENERAL MILITARY COURSE (GMC) OR A PORTION THEREOF IS WAIVED BY THE SECRETARY OF THE AIR FORCE IN ACCORDANCE WITH AUTHORITY VESTED IN HIM BY 10 U.S.C. 2108(C), IT IS OUR VIEW THAT EACH STUDENT IN THE CLASSES MENTIONED IN QUESTIONS "2A," "B," AND "C" MAY RECEIVE THE BENEFITS OF THE SCHOLARSHIP UNDER 10 U.S.C. 2107 IN THE CIRCUMSTANCES MENTIONED IN THE QUESTIONS.

THERE IS NOT APPARENT TO US THE BASIS OF THE OBSERVATIONS IN COMMITTEE ACTION NO. 447 QUOTED ABOVE. THE PROVISIONS OF 10 U.S.C. 2104(B)(6) REQUIRE AS A PREREQUISITE FOR "ADVANCED TRAINING" UNDER THAT SECTION THAT THE STUDENT "COMPLETE SUCCESSFULLY" EITHER "THE FIRST TWO YEARS OF A FOUR- YEAR SENIOR RESERVE OFFICERS' TRAINING CORPS COURSE" OR "FIELD TRAINING OR A PRACTICE CRUISE OF NOT LESS THAN SIX WEEKS' DURATION" PRESCRIBED BY THE SECRETARY CONCERNED AS A PRELIMINARY REQUIREMENT FOR ADMISSION TO THE ADVANCED COURSE.

IT SEEMS TO US THAT IF A STUDENT MEETS THE STATUTORY REQUIREMENTS FOR ADMISSION TO THE "ADVANCED TRAINING" COURSE BY REASON OF PRIOR MILITARY EDUCATION AND TRAINING, THE 6 WEEKS' FIELD TRAINING OR PRACTICE CRUISE IS NOT REQUIRED BY THE STATUTE AS A PRELIMINARY REQUIREMENT FOR ADMISSION TO THE "ADVANCED COURSE" (THE LAST 2 YEARS OF COLLEGE). TO SUGGEST OTHERWISE INDICATES THAT THE STUDENT IS NOT QUALIFIED FOR AN EXCUSAL OF THE GENERAL MILITARY COURSE UNDER 10 U.S.C. 2108(C).

THERE IS NOTHING IN THE LANGUAGE OF SUBSECTION 2108(C) OR IN ITS LEGISLATIVE HISTORY TO SUGGEST THAT ITS APPLICATION IS LIMITED TO THE SCHOLARSHIP PROGRAM PROVIDED IN 10 U.S.C. 2107. CONSEQUENTLY, WE MUST VIEW THE PROVISIONS OF SUBSECTION 2108(C) AS REACHING THE ADVANCED TRAINING PROGRAM PROVIDED IN 10 U.S.C. 2104 AS WELL AS THE SCHOLARSHIP PROGRAM AUTHORIZED IN 10 U.S.C. 2107. THEREFORE, WE ARE NOT AWARE OF ANY STATUTORY BASIS FOR DENYING A STUDENT - WHO IS ELIGIBLE FOR EXCUSAL UNDER 10 U.S.C. 2108(C) FROM THE GENERAL MILITARY COURSE (GMC) - ADMISSION TO THE ADVANCED COURSE PROVIDED IN 10 U.S.C. 2104 SIMPLY BECAUSE OF SUCH EXCUSAL. IN OUR OPINION, A STUDENT WHO IS ELIGIBLE FOR SUCH EXCUSAL "ON THE BASIS OF HIS PREVIOUS EDUCATION, MILITARY EXPERIENCE, OR BOTH," INSOFAR AS THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 IS CONCERNED, IS ELIGIBLE FOR THE FINANCIAL BENEFITS PROVIDED EITHER IN 10 U.S.C. 2104 OR IN 10 U.S.C. 2107, IF HE OTHERWISE IS QUALIFIED THEREFOR.