B-197500.OM, AUG 26, 1980

B-197500.OM, AUG 26, 1980

PRECIS-UNAVAILABLE

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED. MESSRS. BAILEY AND RHODES ARE ENTITLED TO THE SUBSISTENCE ALLOWANCE THEY RECEIVED FOR THE PERIODS MAY 22, 1977, TO JUNE 1, 1977, AND JULY 10, 1977, TO AUGUST 24, 1977. THE REGULATION IN QUESTION IS CLEAR ON ITS FACE AND MUST BE INTERPRETED IN A MANNER CONSISTENT WITH ITS PLAIN MEANING. THE REGULATION ENTITLES A STUDENT ENROLLED IN THE ADVANCED COURSE TO A SUBSISTENCE ALLOWANCE FOR ONE SUMMER VACATION PERIOD. THE SUMMER VACATION PERIOD IS THE FIRST ONE WHICH ARISES AFTER A STUDENT HAS COMMENCED HIS TRAINING AND MAINTAINED HIS ENROLLMENT.

MESSRS. BAILEY AND RHODES WERE ENROLLED IN THE COURSE IN THE FALL OF 1975, AND THEY COMMENCED TRAINING. HOWEVER, WHEN THE SUMMER VACATION OF 1976 AROSE, THEY HAD NOT MAINTAINED ENROLLMENT. THEREFORE, THEY WERE NOT ENTITLED TO A SUBSISTENCE ALLOWANCE, AND THEY DID NOT RECEIVE ONE. THE STUDENTS REENROLLED IN THE ADVANCED COURSE IN THE FALL OF 1976 AND AGAIN COMMENCED TRAINING. WHEN THE SUMMER VACATION PERIOD OF 1977 AROSE, THEY HAD COMMENCED TRAINING AND MAINTAINED ENROLLMENT. THUS, THE SUMMER VACATION PERIOD OF 1977 WAS THE FIRST SUMMER AFTER THEIR ENROLLMENT WHEN THEY MET THE REGULATORY CONDITIONS (I.E., COMMENCED TRAINING AND MAINTAINED ENROLLMENT) FOR THEIR ENTITLEMENT TO VEST.

COMPTROLLER GENERAL

HEREWITH ARE THE FILES CONCERNING MR. HENRY J. RHODES AND MR. EDWARD D. BAILEY, JR., FORMER CADETS ENROLLED IN THE RESERVE OFFICERS TRAINING CORPS AT LOUISIANA STATE UNIVERSITY. A QUESTION HAS ARISEN CONCERNING THEIR ENTITLEMENT TO A SUBSISTENCE ALLOWANCE FOR PORTIONS OF THE SUMMER OF 1977.

THE RECORD SHOWS THAT MR. RHODES AND MR. BAILEY ENTERED INTO THE ADVANCED COURSE OF THE ROTC IN THE FALL OF 1975, AT WHICH TIME THEY WERE ON SCHOLASTIC PROBATION FOR FAILURE TO MEET THE SCHOOL'S ACADEMIC STANDARDS. AT THE COMPLETION OF THE FALL TERM BOTH CADETS WERE SCHOLASTICALLY DROPPED FOR THE SPRING AND SUMMER 1976 TERMS. IN THE FALL OF 1976 THEY REENROLLED AT THE SCHOOL AND IN THE ROTC PROGRAM. DURING THE 1976/77 SCHOOL YEAR THEY COMPLETED THE REQUIRED FOURTH YEAR PORTION OF THE ADVANCED COURSE AND THE PORTION OF THE THIRD YEAR COURSE WHICH THEY HAD MISSED DURING THE SPRING 1976 TERM. THEY THEN ENROLLED IN THE FORT RILEY ADVANCED CAMP IN THE SUMMER OF 1977 IN ORDER TO COMPLETE THE REQUIREMENTS OF THE ADVANCED COURSE. HOWEVER, SINCE THEY HAD NOT YET COMPLETED THE SCHOOL'S REQUIREMENTS FOR A BACHELORS DEGREE, THEY REMAINED UNDER A VALID MILITARY SCIENCE ADVANCED COURSE CONTRACT WHEN THEY REENROLLED IN THEIR DEGREE PROGRAMS AT LSU FOR THE FALL 1977 TERM.

THERE IS NO QUESTION THAT THE SUBSISTENCE ALLOWANCE PAYMENTS FROM AUGUST 25 THROUGH SEPTEMBER 30, 1977, WERE ERRONEOUS. THIS PERIOD REPRESENTS A PORTION OF THE REGULAR SCHOOL YEAR AND NOT THE SUMMER TERM, AND THEREFORE, NO SUBSISTENCE ALLOWANCE WAS DUE MR. RHODES AND MR. BAILEY FOR THIS PERIOD. HOWEVER, THE QUESTION HAS ARISEN AS TO WHETHER THE PAYMENTS MADE FOR THE PERIODS MAY 22 THROUGH JUNE 1, 1977, AND JULY 10 THROUGH AUGUST 24, 1977, WERE PROPER OR ERRONEOUS WHEN MADE.

PARAGRAPH 80401 D(2)(B) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) PROVIDES, IN PERTINENT PART, THAT:

A MEMBER ENROLLED IN OR SELECTED FOR THE ADVANCED COURSE IS ENTITLED TO SUBSISTENCE ALLOWANCE DURING THE FIRST SUMMER VACATION PERIOD AFTER ENTERING UPON THE TRAINING OF THE ADVANCED COURSE AND DURING WHICH HE REMAINS ENROLLED IN THE PROGRAM, ... PAYMENT IS AUTHORIZED FOR ONLY ONE SUMMER VACATION PERIOD.

THE FINANCE AND ACCOUNTING OFFICER AT FORT RILEY HAS INTERPRETED THE ABOVE REGULATION TO MEAN THAT A CADET ENROLLED IN THE ADVANCED COURSE IS ENTITLED TO A SUBSISTENCE ALLOWANCE ONLY FOR THE FIRST SUMMER VACATION PERIOD IMMEDIATELY FOLLOWING HIS ENTRANCE INTO THE ADVANCED COURSE, PROVIDED HE REMAINS CONTINUOUSLY ENROLLED IN THE COURSE. IN THE CASE OF MR. RHODES AND MR. BAILEY, THE FINANCE AND ACCOUNTING OFFICER CONTENDS THAT SINCE THEY ENTERED THE ADVANCED COURSE IN THE FALL OF 1975, THEY WERE NOT ENTITLED TO A SUBSISTENCE ALLOWANCE FOR THE SUMMER OF 1977, SINCE THAT SUMMER WAS NOT THE FIRST SUMMER AFTER THEIR ENTRANCE INTO THE PROGRAM. THEREFORE, HE ASSERTS THAT THE PAYMENTS THE CADETS RECEIVED FOR THE SUMMER OF 1977 WERE ERRONEOUS AND MUST BE REFUNDED.

THE COMMANDANT OF CADETS AND PROFESSOR OF MILITARY SCIENCE AT LSU, HOWEVER, HAS DISAGREED WITH THIS INTERPRETATION. HE CONTENDS THAT THE DODPM DOES NOT STIPULATE THAT A CADET IS ENTITLED TO A SUBSISTENCE ALLOWANCE ONLY FOR THE SUMMER IMMEDIATELY FOLLOWING THE TERM THE CADET ENTERED THE ADVANCED COURSE. INSTEAD, HE INTERPRETS THE DODPM TO MEAN THAT A CADET IS DUE A SUBSISTENCE ALLOWANCE FOR A SUMMER FOLLOWING HIS ENTRANCE INTO THE ADVANCED PROGRAM, IF HE IS CONTINUOUSLY ENROLLED IN THE PROGRAM. IN THE CASE OF MR. RHODES AND MR. BAILEY, HE FEELS THAT PAYMENT SHOULD NOT BE AUTHORIZED FOR THE SUMMER OF 1976, THE FIRST SUMMER AFTER THEIR ENTRANCE, BECAUSE NEITHER OF THE CADETS WAS ENROLLED DURING THE SPRING 1976 TERM AND IT WAS NOT CERTAIN IF EITHER OF THEM WOULD REENTER THE ROTC IN THE FALL OF 1976. SINCE THE CADETS WERE ENROLLED IN THE ADVANCED PROGRAM IN THE SPRING OF 1977 AND CONTINUED TO HAVE A VALID ADVANCED COURSE CONTRACT WHILE PURSUING THEIR DEGREE REQUIREMENTS DURING THE FALL OF 1977, THE SUMMER OF 1977 WAS THE FIRST SUMMER AFTER THEIR ENTRANCE INTO THE ADVANCED PROGRAM WHEN THEY REMAINED CONTINUOUSLY ENROLLED IN THE PROGRAM, AND THEREFORE, THEY WERE ENTITLED TO A SUBSISTENCE ALLOWANCE FOR THIS SUMMER. FURTHERMORE, THE COMMANDANT ARGUES THAT TO TAKE THE VIEW OF THE FINANCE AND ACCOUNTING OFFICER WOULD BE TO PRECLUDE CADETS WHO DO NOT FOLLOW A STANDARD 4-YEAR MILITARY SCIENCE AND BACCALAUREATE PROGRAM DUE TO ACADEMIC DIFFICULTY, A LEAVE OF ABSENCE, AND/OR A 5-YEAR DEGREE COMPLETION REQUIREMENT FROM BEING ENTITLED TO RECEIVE A SUBSISTENCE ALLOWANCE FOR A SUMMER TERM.

FROM THE INFORMATION BEFORE US, IT APPEARS THAT THE SUBSISTENCE PAYMENTS RECEIVED THROUGH AUGUST 24, 1977, WOULD BE APPROPRIATE FOR FAVORABLE WAIVER CONSIDERATION IF IN FACT THEY WERE ERRONEOUS PAYMENTS. HOWEVER, IN VIEW OF THE QUESTIONS CONCERNING THE PROPER INTERPRETATION OF THE REGULATIONS, THIS MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.