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at page 309 of the hearings before the Committee on Armed Services, U.S. Senate, on the bill.
Section 1209 of Title 10, U.S. Code, is a reenactment of section 402(g) of the Career Compensation Act and, while differently phrased in its codified form, no substantive change was made in the section. It follows, therefore, that 10 U.S.C. 1209 authorizes a member of the regular components to elect transfer to the inactive status list in lieu of separation with severance pay and to receive retirement pay under Chapter 71 of Title 10 only if he met all the qualifying requirements, except age, imposed by Chapter 67, Title 10, U.S. Code, including 10 U.S.C. 1331. Regular Army service following the completion of 20 years of satisfactory Federal service as defined in 10 U.S.C. 1332, the last 8 years of which were in a reserve component, does not deprive a member of eligibility for Chapter 71 retirement benefits. See 32 Comp. Gen. 225. However, if the member has not met all the service requirements imposed by section 1331, the retirement pay provisions of section 1209 have no application. 39 Comp. Gen. 360, answer to question lb.
Your question is answered accordingly.
[B-142449] Education Fellowships—Limitation-Applicability to Individuals v. Fellowships The limitation on the number of fellowships which may be authorized by the Commissioner of Education under section 402 of the National Defense Education Act of 1958 must, in view of the personal qualifications which individuals must satisfy to receive the benefits of the act, be regarded as a limitation on the number of awards made to individuals rather than a limitation on the number of fellowships; therefore, when a person who has been awarded a fellowship discontinues his study before the term of the fellowship has expired, the substitution of another individual for the unexpired portion must be counted as a new award. To the Secretary of Health, Education, and Welfare, June 2, 1960:
Your letter of March 30, 1960, concerns a problem which has arisen in the administration of the National Defense Graduate Fellowship Program, Title IV of the National Defense Education Act of 1958, Public Law 85–864, 20 U.S.C. 461-465.
Title IV of the National Defense Education Act of 1958, provides in pertinent part as follows: NUMBER OF FELLOWSHIPS
Sec. 402. During the fiscal year ending June 30, 1959, the Commissioner is authorized to award one thousand fellowships under the provisions of this title, and during each of the three succeeding fiscal years he is authorized to award one thousand five hundred such fellowships. Such fellowships shall be for periods of study not in excess of three academic years. AWARD OF FELLOWSHIPS AND APPROVAL OF INSTITUTIONS
Sec. 403. (a) The Commissioner shall award fellowships under this title to individuals accepted for study in graduate programs approved by him under this section. * * * FELLOWSHIP STIPENDS
Sec. 404. (a) Each person awarded a fellowship under the provisions of this title shall receive a stipend of $2,000 for the first academic year of study after the baccalaureate degree, $2,200 for the second such year, and $2,400 for the third such year, plus an additional amount of $400 for each such year on account of each of his dependents.
(b) In addition to the amounts paid to persons pursuant to subsection (a) there shall be paid to the institution of higher education at which each such person is pursuing his course of study such amount, not more than $2,500 per academic year, as is determined by the Commissioner to constitute that portion of the cost of the new graduate program or of the expansion in an existing graduate program in which such person is pursuing his course of study, which is reasonably attributable to him. FELLOWSHIP CONDITIONS
Sec. 405. A person awarded a fellowship under the provisions of this title shall continue to receive the payments provided in section 404 only during such periods as the Commissioner finds that he is maintaining satisfactory proficiency in, and devoting essentially full time to, study or research in the field in which such fellowship was awarded, in an institution of higher education, and is not engaging in gainful employment other than part-time employment by such insti. tution in teaching, research, or similar activities, approved by the Commissioner.
The specific question presented for our decision regarding the abovequoted act is set forth in your submission as follows:
When the Commissioner has awarded the maximum number of fellowships in a fiscal year for a three-year period as authorized by Section 402, and a fellowship holder discontinues his study before the full term of the fellowship award has been completed, may the Commissioner substitute another individual for the unexpired term of the fellowship originally awarded without the substitution counting as a new award ! The reason the question has arisen is because of the use of the word “individuals” in the first sentence of section 403(a), 20 U.S.C. 463(a), and the word "person” in sections 404 and 405, 20 U.S.C. 464(a), 20 id. 465.
You state that the omission of the term "individual” or “person" in the basic authorization contained in section 402 supports the conclusion that there was no intention to limit the number of individuals or persons who can hold the fellowships referred to in section 402 of the act. Also, that the term “fellowship” is generally used in the academic community to describe a financial benefit which remains available for award until the term of the award has ended. In addition, you contend that since section 403(b), 20 U.S.C. 463(b), of the act provides that, “The total of the fellowships awarded under this title for pursuing a course of study in a graduate program at any institution of higher education may not exceed a limit established by the Commissioner in the light of the objective referred to in subsection (a) (2),” 20 U.S.C. 463(a) (2), the Commissioner is, in effect, required to establish a maximum number of fellowships which can be allotted to any institution, and it is necessary to award fellowships in accordance with these allocations and keep such allocations filled as vacancies for unexpired terms occur. Therefore, you construe the authorization for awarding fellowships set forth in section 402 of the act as authorizing, what is, in effect, the establishment of a specified number of fellowships which would continue for the specified period of the award.
Section 402 of the act, 20 U.S.C. 462, authorizes the Commissioner to award fellowships “under the provisions of this title” for periods of study not in excess of 3 years, and limits the number of fellowships that can be awarded in each of the 4 fiscal years specified in the act. Section 403 (a) limits the award of fellowships to individuals accepted for study in graduate programs which have been approved by the Commissioner. Section 404 provides that a person who is awarded a fellowship shall receive a stipulated stipend during the period for which the fellowship has been awarded, and section 405 sets forth certain conditions and limitations which the person who is awarded a fellowship must satisfy in order to continue to receive the stipend
provided in section 404. Hence, the Commissioner, subject to the numerical limitation set forth in section 402, is authorized to award to a qualified individual a fellowship which may be used by that person for a period not in excess of 3 years, and so long as that person continues to satisfy certain conditions and limitations during such period, he will receive a stipulated stipend.
It thus seems clear that the act contemplates the granting of fellowships to individuals selected upon the basis of their personal qualifications and that the limitation in section 402 is applicable to the number of awards of such fellowships made to individuals under section 403 of the act. While we appreciate the reasons stated in your letter for permitting the substitutions you propose, we find nothing in the act or its legislative history which would authorize the Commissioner to substitute another individual for the unexpired term of the fellowship originally awarded without counting the substitution as a new award.
Therefore, in answer to your specific question, it is our view that if a person to whom the Commissioner has awarded a fellowship discontinues his study before the term of the fellowship has expired, the substitution of another individual for the unexpired term of the fellowship must be counted as a new award.
[B-142579] Highways—Advertising Control–Municipality Exemption The term "incorporated municipalities” as used in the highway advertising control exemption in 23 U.S.C. 131(b), which excludes highways traversing commercial and industrial zones within boundaries of incorporated municipalities, is construed to include incorporated towns in view of the general meaning of "municipal" as applicable to towns, cities, and incorporated villages and in light of the legislative history which shows a congressional intent that the regulatory prerogatives of incorporated municipalities are not to be encroached upon. To the Secretary of Commerce, June 2, 1960:
By letter of April 11, 1960, the Assistant Secretary of Commerce for Administration requested an opinion regarding application of the term “incorporated municipalities” as that term is used in section 131(b), Title 23, United States Code. Section 131(b), as amended by section 106 of the Federal-Aid Highway Act of 1959, 73 Stat. 612, provides, with respect to agreements for the control of outdoor advertising along the Interstate System of highways that:
(b) The Secretary of Commerce is authorized to enter into agreements with State highway departments (including such supplementary agreements as may be necessary) to carry out the national policy set forth in subsection (a) of this section with respect to the Interstate System within the State. Any such agreement shall include provisions for regulation and control of the erection and maintenance of advertising signs, displays, and other advertising devices in conformity with the standards established in accordance with subsection (a) of this section and may include, among other things, provisions for preservation of natural beauty, prevention of erosion, landscaping, reforestation, development of viewpoints for scenic attractions that are accessible to the public without charge, and the erection of markers, signs, or plaques, and development of areas in appreciation of sites of historical significance. Agreements entered into between the Secretary of Commerce and State highway departments under this section shall not apply to those segments of the Interstate System which traverse commercial or industrial zones within the presently existing boundaries of incorporated municipalities wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or which traverse other areas where the land use, as of the date of approval of this Act, is clearly established by State law as industrial or commercial: and any such segment excluded from the application of such standards shall not be considered in computing the increase of the Federal share payable on account thereof.
It is stated that proper construction of this language is particularly uncertain in connection with the town form of government peculiar to the New England States. It is pointed out that the State of Maine is divided into counties, districts, towns, plantations, and unorganized territory; that under Maine law, a “town” includes cities and plantations and the word “municipality” includes cities, towns and plantations. It is further pointed out that towns in Maine are generally rural in character and that in Maine, as well as in Connecticut and Vermont, incorporated villages may be within town limits.
The Assistant Secretary also points out the possibility of a problem arising, particularly with respect to those states that are entirely composed of incorporated areas pursuant to state law, involving the rezoning to commercial or industrial use of residential or other land within municipal boundaries after agreements are entered into covering the control of advertising in such residential or other areas. This problem, it is said, may result from the wording of the law which excludes those segments of the Interstate System traversing only commercial or industrial zones within the “presently existing" boundaries but which makes no provision with respect to property that might be rezoned. It is stated that subsequent rezoning of residential land to commercial or industrial use within the presently existing boundaries of an incorporated municipality may, therefore, require revision of agreements and repayment by states of any amounts comprising the increased Federal share on account of advertising control for affected Interstate System projects.
In view of the mandatory requirement for the exclusion of commercial and industrial zones within the presently existing boundaries of incorporated municipalities, our decision is requested on the specific question:
Is the incorporated town typified by towns in the New England States an incorporated municipality within the meaning of 23 U.S.C. 131(b)?
Legislation for the control of advertising over areas adjacent to the Interstate System was first enacted as section 12 of the Federal-Aid Highway Act of 1958, 72 Stat. 95, now codified as 23 U.S.C. 131. Prior