B-153942, JUNE 22, 1964, 43 COMP. GEN. 821

B-153942, JUNE 22, 1964, 43 COMP. GEN. 821

PAY - RETIRED - FOREIGN RESIDENCE EFFECT AN OFFICER OF THE REGULAR AIR FORCE WHO, AFTER RETIREMENT FOR LENGTH OF SERVICE AS AN ENLISTED MEMBER, RESIDES OVERSEAS IN THE COUNTRY OF HIS BIRTH FOR MORE THAN 3 YEARS, WHICH WAS THE FOREIGN RESIDENCE PERIOD PRESCRIBED FOR LOSS OF CITIZENSHIP IN SECTION 352 (A) (1) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1484 (A) (1), THAT WAS SUBSEQUENTLY HELD TO BE UNCONSTITUTIONAL, HAS NOT LOST HIS UNITED STATES CITIZENSHIP BECAUSE OF SUCH RESIDENCE AND, THEREFORE, THE MEMBER IS ENTITLED TO CONTINUE TO RECEIVE RETIRED PAY.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, JUNE 22, 1964:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1964--- FORWARDED BY THE DIRECTORATE OF ACCOUNTING AND FINANCE ON APRIL 9, 1964--- REQUESTING A DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING VOUCHER STATED IN FAVOR OF CAPTAIN ARTHUR R. LOFTUS, AO 50 6961, RETIRED, IN THE AMOUNT OF $343.78, REPRESENTING RETIRED PAY FOR DECEMBER 1963. THE SUBMISSION WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF 758 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT CAPTAIN LOFTUS WAS RETIRED ON DECEMBER 31, 1947, AS AN ENLISTED MAN OF THE REGULAR AIR FORCE (MASTER SERGEANT) UNDER THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, APPROVED OCTOBER 6, 1945, CH. 393, 59 STAT. 539, AS AMENDED BY THE ACT OF AUGUST 10, 1946, CH. 952, 60 STAT. 996 (NOW 10 U.S.C. 8914). UNDER THE PROVISIONS OF THE 1945 ACT, AS AMENDED, AN ENLISTED MAN OF THE REGULAR AIR FORCE WAS AUTHORIZED TO BE TRANSFERRED TO THE ENLISTED RESERVE CORPS AFTER 20 YEARS' ACTIVE SERVICE (TO REMAIN A MEMBER OF THE ENLISTED RESERVE CORPS UNTIL HIS ACTIVE SERVICE PLUS THE PERIOD OF HIS MEMBERSHIP IN THE ENLISTED RESERVE CORPS EQUALED 30 YEARS) AND AT THE SAME TIME "BE PLACED ON THE RETIRED LIST" OF THE REGULAR AIR FORCE WITH RETIRED PAY. CAPTAIN LOFTUS COMPLETED 30 YEARS' ACTIVE AND INACTIVE SERVICE ON APRIL 12, 1954, AND WAS ADVANCED TO THE HIGHEST TEMPORARY GRADE (CAPTAIN) IN WHICH HE SERVED SATISFACTORILY AS DETERMINED BY THE SECRETARY OF THE AIR FORCE UNDER THE PROVISIONS OF SECTION 203 (E) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1086, 10 U.S.C. 1004.

ON OCTOBER 31, 1963, THE PAYMENT OF RETIRED PAY TO CAPTAIN LOFTUS WAS ADMINISTRATIVELY SUSPENDED PENDING OFFICIAL CONFIRMATION OF HIS LOSS OF AMERICAN CITIZENSHIP. BY LETTER DATED DECEMBER 10, 1963, THE AMERICAN CONSUL, BIRMINGHAM, ENGLAND, REPORTED THAT CAPTAIN LOFTUS, WHO WAS BORN IN ENGLAND ON NOVEMBER 24, 1901, EXPATRIATED HIMSELF ON NOVEMBER 5, 1959, UNDER THE PROVISIONS OF SECTION 352 (A) (1) OF THE IMMIGRATION AND NATIONALITY ACT OF JUNE 27, 1952, CH. 477, 66 STAT. 269, 8 U.S.C. 1484 (A) (1), BY HAVING A CONTINUOUS RESIDENCE FOR 3 YEARS IN THE TERRITORY OF THE FOREIGN STATE OF WHICH HE WAS FORMERLY A NATIONAL.

YOU REFER TO OUR DECISION DATED MAY 1, 1962, B-147777, 41 COMP. GEN. 715, AS FOR POSSIBLE APPLICATION IN THIS MATTER. THE QUESTION INVOLVED IN THAT DECISION CONCERNED PERSONS RETIRED FOR LENGTH OF SERVICE AS RESERVE OFFICERS UNDER THE PROVISIONS OF 10 U.S.C. 3911, 6323, 8911, OR 14 U.S.C. 232, WHOSE RETIRED PAY ACCRUED TO THEM BY VIRTUE OF THEIR STATUS AS MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES. IT WAS HELD THAT THEY WERE NOT ENTITLED TO RETIRED PAY, SINCE THEIR BECOMING CITIZENS OF A FOREIGN COUNTRY WAS INCONSISTENT WITH CONTINUATION OF THEIR RESERVE STATUS. CAPTAIN LOFTUS WAS RETIRED FOR LENGTH OF SERVICE AS AN ENLISTED MAN, AND IT APPEARS THAT NO ADDITIONAL RETIRED PAY HAS BEEN RECEIVED BY HIM ON ACCOUNT OF SERVICE AS A RESERVE OFFICER. ALSO, IT IS NOT DISCLOSED THAT HE HAS BECOME A CITIZEN OF ENGLAND OR ANY COUNTRY OTHER THAN THE UNITED STATES. HENCE, NO BASIS IS PERCEIVED FOR APPLYING OUR DECISION OF MAY 1, 1962, IN HIS CASE. HOWEVER, THERE IS FOR CONSIDERATION WHETHER THE STATUS OF A RETIRED REGULAR ENLISTED MAN WHO RESIDES IN THE COUNTRY OF HIS BIRTH FOR MORE THAN 3 YEARS IS SUCH AS TO WARRANT CONTINUATION OF RETIRED PAY PAYMENTS. SEE 10 U.S.C. 8075 AND 8504.

IN THE CASE OF SCHNEIDER V. RUSK, SUP.CT. NO. 368, DECIDED MAY 18, 1964, THERE WAS CONSIDERED THE CASE OF A GERMAN NATIONAL BY BIRTH (A NATURALIZED CITIZEN OF THE UNITED STATES) WHO RETURNED TO GERMANY IN 1956 WHERE SHE MARRIED AND WHERE SHE HAS RESIDED EVER SINCE. IN 1959 THE UNITED STATES DENIED HER A PASSPORT, CERTIFYING THAT SHE HAD LOST HER AMERICAN CITIZENSHIP UNDER THE PROVISIONS OF SECTION 352 (A) (1) OF THE IMMIGRATION AND NATIONALITY ACT OF JUNE 27, 1952, WHICH PURPORTED TO TAKE AWAY HER AMERICAN CITIZENSHIP, AS A NATURALIZED CITIZEN, BY REASON OF CONTINUOUS RESIDENCE FOR 3 YEARS IN THE TERRITORY OF THE FOREIGN STATE OF WHICH SHE WAS FORMERLY A NATIONAL. IN ITS DECISION DATED MAY 18, 1964, THE SUPREME COURT HELD THE SAID PROVISION OF LAW TO BE UNCONSTITUTIONAL. IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE SCHNEIDER CASE, IT DOES NOT APPEAR THAT CAPTAIN LOFTUS HAS IN FACT LOST HIS AMERICAN CITIZENSHIP MERELY BECAUSE HE HAS BEEN RESIDING IN ENGLAND.

IN UNITED STATES V. GAY, 264 U.S. 353 (1924), THERE WAS CONSIDERED THE CASE OF A RETIRED MACHINIST OF THE REGULAR NAVY, WHO WAS A NATURALIZED CITIZEN OF THE UNITED STATES. IN THAT CASE THE MEMBER SECURED THE PERMISSION OF THE DEPARTMENT OF THE NAVY TO REMAIN ABROAD AND REPORTED HIS ADDRESS EACH YEAR AS REQUIRED. THE SUPREME COURT HELD THAT UNDER THE CIRCUMSTANCES THE DEPARTMENT OF THE NAVY HAD NO RIGHT TO DISCONTINUE THE MEMBER'S RETIRED PAY.

ACCORDINGLY, ON THE ASSUMPTION THAT THE ONLY THING THAT MAKES CAPTAIN LOFTUS' RIGHT TO RETIRED PAY QUESTIONABLE IS HIS RESIDENCE IN ENGLAND, THE VOUCHER SUBMITTED WITH YOUR REQUEST FOR A DECISION, AND RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.