Date: February 10, 1995 O.G.C.[Precedent 6-95]{.underline}

From: General Counsel (022)

Subj: Classification of Service \-- Attendance at the United States
Military Academy Preparatory School or United States Naval Academy
Preparatory School.

To: Under Secretary for Benefits (212B)

[QUESTION PRESENTED]{.underline}:

Whether service consisting solely of attendance at the United States
Military Academy Preparatory School or United States Naval Academy
Preparatory School may be considered "active duty" for purposes of title
38, United States Code.

[COMMENTS]{.underline}:

1\. In O.G.C. Prec. 18-94, we held that classification, for purposes of
title 38, United States Code, of an individual's service at the United
States Air Force Academy Preparatory School (USAFAPS) depends upon the
status in which that individual entered the USAFAPS. Under Air Force
regulations, persons entering the USAFAPS from civilian life or reserve
or National Guard duty attend the school as reservists called to active
duty for the sole purpose of attending the USAFAPS. Such service
constitutes "active duty for training" within the meaning of 38 U.S.C. §
101(22) and is thus excluded from the definition of "active duty" in 38
U.S.C. § 101(21). In contrast, persons who enroll in the USAFAPS
directly from active duty under a prior enlistment continue to serve on
"active duty" within the meaning of 38 U.S.C. § 101(21) during their
attendance at the USAFAPS. You have requested our opinion as to whether
the analysis in O.G.C. Prec. 18-94 would apply equally to attendance at
the academy preparatory schools oper­ated by the other service
departments.

2\. The other service academy preparatory schools are the United States
Military Academy Preparatory School (USMAPS) and the United States Naval
Academy Preparatory School (USNAPS). The Coast Guard does not operate a
service academy preparatory school, but recruits cadets for the Coast
Guard Academy from the USNAPS. Based upon our contact with personnel at
the USMAPS and the United States Naval Academy (USNA), which handles
recruitment for the USNAPS, we find no significant differences between
the criteria governing the enlistment status and service obligation of
persons attending the USAFAPS and persons attending the USMAPS or
USNAPS. Accordingly, we conclude that the analysis stated in O.G.C.
Prec. 18-94 applies equally to all three service academy preparatory
schools.

3\. Like the USAFAPS, the USMAPS and the USNAPS accept applications from
active duty servicemembers, reservists, National Guard members, and
civilians. The Army and Navy have both issued instructions governing
application and enrollment procedures for their active duty
servicemembers and reservists. Army Regulation (AR) 351-12; Naval
Operations Instruction (OPNAVINST) 1531.4F. The Army regulation also
applies to members of the Army National Guard. The procedures
established in those instructions are essentially similar in pertinent
respects to the procedures discussed in O.G.C. Prec. 18-94 governing
enrollment at the USAFAPS by members of the regular Air Force, the Air
Force Reserve, and the Air National Guard. In contrast to the detailed
Air Force regulations and instructions discussed in O.G.C. Prec. 18-94,
neither the Army nor the Navy has issued specific regulations or
instructions governing the enlistment and service obligation of
civilians who are accepted to the USMAPS or USNAPS. However, personnel
at the USMAPS and the USNA have informed us that the procedures
governing enlistments and service obligations for civilians enrolling in
the USMAPS and USNAPS are essentially the same as those described in
O.G.C. Prec. 18-94 with respect to the USAFAPS.

4\. A person serving on active duty in the Army who is accepted to the
USMAPS will be reassigned from his or her current duty assignment to the
USMAPS, without any change in status or in the service obligation
incurred under the current enlistment. [See]{.underline} AR 351-12, 8,
13.a., and 14.a.(1). In the event that such a person becomes disenrolled
from the USMAPS prior to completion of the program, he or she will be
reassigned to other duty and required to serve out his or her existing
service obligation. AR 351-12, ¶ 14.d.

5\. A member of the Army Reserve or the Army National Guard who is
accepted into the USMAPS will be "ordered to active duty" and
transferred to the USMAPS. AR 351-12, 13.c. and d. and 14.a.(2) and (3).
As noted in O.G.C. Prec. 18-94, the service department's use of the term
"active duty" in this context is not conclusive as to whether the
service constitutes "active duty" within the meaning of 38 U.S.C. §
101(21) or "active duty for training" within the meaning of 38 U.S.C. §
101(22). In the event that such a person is disenrolled from the USMAPS
prior to completion of the program, he or she will be relieved from
active duty and returned to the appropriate National Guard unit or
assigned to the Army Reserve Personnel Center for further disposition in
accordance with his or her reserve status. AR 351-12, ¶ 14.e. and f.

6\. According to personnel responsible for overseeing recruit­ment and
enrollment into the USMAPS, a civilian who is accepted into the USMAPS
is enlisted into the Army Reserve and called to "active duty" as a
reservist for the sole purpose of attending the preparatory school. We
have been advised that the enlistment agreement under which such a
person enters the Army Reserve establishes that the enlistment is for
the purpose of attending the USMAPS and that, if the person becomes
disenrolled from the USMAPS prior to completing the program, he or she
will be separated from the Army Reserve and will incur no further
service obligation. However, these procedures apparently are not
expressly stated in Army regulations or other official directives.

7\. A person serving on active duty in the Navy or Marine Corps who is
accepted to the USNAPS will be reassigned from his or her current duty
assignment to the USNAPS without any change in status or in the service
obligation incurred under the current enlistment. [See]{.underline}
OPNAVINST 1531.4F, 7.a., 9.b., and enclosure (2), ¶ 2.i. In the event
that such a person becomes disenrolled from the USNAPS prior to
completing the program, he or she will be reassigned and required to
complete his or her existing service obligation. OPNAVINST 1531.4F, ¶
7.c.

8\. According to personnel responsible for overseeing recruitment and
enrollment into the USNAPS, a member of the Naval Reserve or Marine
Corps Reserve who is accepted into the USNAPS is called to "active duty"
as a reservist and transferred to the USNAPS. We have further been
advised that if such person becomes disenrolled from the USNAPS before
completing the program, he or she will be released from active duty and
returned to his or her prior reserve status. However, this procedure is
not expressly stated in OPNAVINST 1531.4F, and we have not found any
other Navy directive establishing such a procedure.

9\. We have been advised that a civilian who is accepted into the USNAPS
is enlisted into the Naval Reserve and ordered to active duty as a
reservist for the sole purpose of attending the USNAPS. We have further
been advised that the enlistment agreement under which such a person
enters the Naval Reserve establishes that the enlistment is for the
purpose of attending the USNAPS and that, if the person becomes
disenrolled from the USNAPS prior to completing the program, he or she
will be separated from the Naval Reserve and will incur no further
service obligation. However, these procedures apparently are not
expressly provided by Navy regulations or other official directives.

10\. Under the analysis of O.G.C. Prec. 18-94, the service of active
duty members of the Army who become enrolled in the USMAPS and active
duty members of the Navy and Marine Corps who become enrolled in the
USNAPS constitutes "active duty" within the meaning of 38 U.S.C. §
101(21). Those servicemembers serve under a preexisting enlistment in
the regular Army, Navy, or Marine Corps; they are not released from
active duty, but are merely transferred to the preparatory school.
Accordingly, their service at the preparatory school may be viewed as a
continuation of their period of active service under the preexisting
enlistment.

11\. The service of members of the Army Reserve and Army National Guard
who become enrolled in the USMAPS, and of members of the Naval Reserve
and Marine Corps Reserve who become enrolled in the USNAPS, is most
accurately characterized as "active duty for training" under 38 U.S.C. §
101(22). "Active duty for training" is defined to include "full-time
duty in the Armed Forces performed by Reserves for training purposes."
38 U.S.C. § 101(22)(A). In O.G.C. Prec. 18-94, we indicated that the
program of education and instruction at the USAFAPS constitutes
"training" within the meaning of section 101(22). The USMAPS and USNAPS
are essentially similar in nature and purpose to the USAFAPS. Army
Regulation 351-1, 3-3, states that "\[t\]he mission of the US Military
Academy Preparatory School (USMAPS) is to provide instruction and
training to qualify active duty candidates for entrance to the \[United
States Military Academy\]." Similarly, the Navy's instruction OPNAVINST
1531.4F, 4.b., states that "\[t\]he Naval Academy Preparatory School
provides intensive instruction and preparation for the academic,
military and physical training curricula at the Naval Academy."
Accordingly, attendance at the USMAPS or USNAPS by reservists
constitutes "active duty for training" under 38 U.S.C. § 101(22)(A),
rather than "active duty" under 38 U.S.C. § 101(21).

12\. "Active duty for training" is also defined to include full-time
duty by members of the Army National Guard under section 316, 502, 503,
504, or 505 of title 32, United States Code. 38 U.S.C. § 101(22)(C).
Section 505 of title 32, United States Code, provides that "the
Secretary of the Army may authorize a limited number of members of its
Army National Guard to . . . attend any service school except the United
States Military Academy, and to pursue a regular course of study at the
school." Accordingly, attendance at the USMAPS by a member of the Army
National Guard is authorized by 32 U.S.C. § 505 and may be considered
"active duty for train­ing" under 38 U.S.C. § 101(22)(C).

13\. The service of persons who are accepted into the USMAPS or USNAPS
from civilian life also is most accurately characterized as "active duty
for training." Such persons reportedly are enlisted into the Army
Reserve or Naval Reserve, respectively, and attend the preparatory
schools in the status of reservists ordered to active duty for the sole
purpose of attending those schools. Accordingly, their service at the
USMAPS or USNAPS constitutes "full-time duty in the Armed Forces
performed by Reserves for training purposes" and is thus "active duty
for training" under 38 U.S.C. § 101(22)(A).

14\. The Air Force regulations discussed in O.G.C. Prec. 18-94 clearly
establish the enlistment status and service obligations applicable to
the various classes of persons attending the USAFAPS. In contrast, the
Army and Navy directives discussed in this opinion do not establish
clear guidelines with respect to civilians who are accepted to attend
the USMAPS or USNAPS. Rather, we have been informed that the enlistment
status and service obligations of such persons are governed by the terms
of the enlistment agreements into which they enter prior to attending
the service preparatory schools. Accordingly, it may be advisable in
adjudicating an individual claim by a person who entered the USMAPS or
USNAPS from civilian life to examine the pertinent service records
regarding that servicemember's enlistment and separation to confirm that
the servicemember attended the USMAPS or USNAPS in the status of a
reserve called to active duty for training purposes, rather than as an
active duty member with a commitment to serve on active duty which would
be binding upon disenrollment from the preparatory school.

15\. Similarly, we note that OPNAVINST 1531.4F does not clearly
establish that members of the Naval Reserve and Marine Corps Reserve
remain in reserve status during their attendance at the USNAPS.
Accordingly, it may be advisable, in individual cases, to ensure that
the reserve member did not undergo a change in status which would bring
his or her service within the meaning of "active duty" under 38 U.S.C. §
101(21). As explained above, mere characterization of the service as
"active duty" by the service department is not conclusive as to the
nature of the service for purposes of title 38, United States Code.
Rather, the service of a member of a reserve component called to active
duty to attend the USNAPS should be considered active duty for training
unless the member, in documents accompanying the change of status, made
a commitment to service on active duty which would be binding upon
disen­rollment from the preparatory school.

[HELD]{.underline}:

The analysis of O.G.C. Prec. 18-94 regarding characterization of service
while attending the United States Air Force Academy Preparatory School
applies equally to service consisting of attendance at the United States
Military Academy Preparatory School or the United States Naval Academy
Preparatory School. Accordingly, persons transferred to these schools
from active duty remain on active duty status while in attendance at the
schools. For members entering the USMAPS and the USNAPS from reserve
components and the Army National Guard, attendance at the schools may
generally be characterized as active duty for training. However, in
adjudication of individual claims of persons who enrolled in the USNAPS
from the Naval Reserve or Marine Corps Reserve, it may be necessary to
confirm from service records that such persons attended the USNAPS in
the status of reserves called to active duty for training purposes. In
addition, it may be necessary in individual cases of persons entering
the USMAPS and USNAPS from civilian life to examine the pertinent
service records to confirm that such persons entered the service in
reserve status in order to attend the preparatory school.

Mary Lou Keener