B-154218, AUGUST 4, 1964, 44 COMP. GEN. 51

B-154218, AUGUST 4, 1964, 44 COMP. GEN. 51

PAY - RETIRED - FOREIGN CITIZENSHIP EFFECT. PAY - RETIRED - FOREIGN RESIDENCE EFFECT A RETIRED ENLISTED MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES WHO LOSES HIS UNITED STATES CITIZENSHIP WHEN HE ACQUIRES CITIZENSHIP IN A FOREIGN COUNTRY HAS TAKEN A VOLUNTARY ACTION SO INCONSISTENT WITH HIS OATH OF ALLEGIANCE TO THE UNITED STATES AND STATUS AS A MEMBER OF THE ARMED FORCES TO WARRANT TERMINATION OF HIS RETIRED PAY. A RETIRED ALIEN ENLISTED MEMBER OF A REGULAR COMPONENT OF THE ARMED SERVICES WHO RESIDES IN A FOREIGN COUNTRY IS NOT REGARDED AS HAVING LOST HIS CITIZENSHIP BY REASON OF SUCH RESIDENCE IN A FOREIGN COUNTRY AND, THEREFORE, THE MEMBER MAY CONTINUE TO RECEIVE RETIRED PAY.

COMPTROLLER CAMPBELL TO THE SECRETARY OF DEFENSE, AUGUST 4, 1964:

REFERENCE IS MADE TO LETTER OF MAY 15, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER THE RETIRED PAY OF AN ENLISTED MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES WHO IS RETIRED FOR LENGTH OF SERVICE OR PHYSICAL DISABILITY IS IN ANY WAY AFFECTED IF:

(1) HE IS A CITIZEN OF THE UNITED STATES AND HE LOSES HIS CITIZENSHIP OR ACQUIRES FOREIGN CITIZENSHIP; OR

(2) HE IS AN ALIEN AND BECOMES A PERMANENT RESIDENT OF A FOREIGN COUNTRY? A DISCUSSION PERTAINING TO THE QUESTIONS IS SET FORTH IN COMMITTEE ACTION NO. 341 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN TIME OF PEACE, NO PERSON MAY BE ACCEPTED FOR ORIGINAL ENLISTMENT IN THE ARMY OR AIR FORCE UNLESS HE IS A CITIZEN OF THE UNITED STATES OR HAS MADE A LEGAL DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES. 10 U.S.C. 3253 (C) AND 8253 (C). WHILE THERE IS NO STATUTORY CITIZENSHIP REQUIREMENT FOR ORIGINAL ENLISTMENT IN THE NAVY OR MARINE CORPS, EACH PERSON ENLISTING IN AN ARMED FORCE OF THE UNITED STATES IS REQUIRED TO TAKE AN OATH TO BEAR TRUE FAITH AND ALLEGIANCE TO THE UNITED STATES AND THAT HE WILL SERVE THIS COUNTRY HONESTLY AND FAITHFULLY AGAINST ALL ITS ENEMIES WHOMSOEVER. 10 U.S.C. 501.

ENLISTED MEN OF THE REGULAR ARMY AND OF THE REGULAR AIR FORCE WHO HAVE COMPLETED 20, BUT LESS THAN 30 YEARS OF ACTIVE SERVICE MAY, UPON THEIR OWN REQUEST, BE RETIRED. THEY THEN BECOME MEMBERS OF THE RESERVE AND ARE REQUIRED TO PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED UNDER LAW UNTIL THEIR ACTIVE SERVICE, PLUS INACTIVE SERVICE AS A MEMBER OF THE RESERVE, EQUALS 30 YEARS. 10 U.S.C. 3914 AND 8914. SIMILARLY, ENLISTED MEMBERS OF THE REGULAR NAVY AND OF THE REGULAR MARINE CORPS WHO HAVE COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE MAY, UPON THEIR OWN REQUEST, BE TRANSFERRED TO THE FLEET RESERVE OR TO THE FLEET MARINE CORPS RESERVE AND BE PAID RETAINER PAY. 10 U.S.C. 6330. UPON COMPLETION OF 30 YEARS' ACTIVE AND INACTIVE SERVICE, SUCH MEMBERS ARE TRANSFERRED TO THE RETIRED LIST. U.S.C. 6331. ENLISTED MEMBERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES ENTITLED TO BASIC PAY WHO ARE DETERMINED TO BE UNFIT TO PERFORM THEIR OFFICIAL DUTIES MAY, IF OTHERWISE ELIGIBLE, BE RETIRED FOR DISABILITY UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1202.

ENLISTED MEN ON THE RETIRED LISTS OF THE REGULAR COMPONENTS OF THE ARMED FORCES REMAIN A PART OF THE ARMED FORCES OF THE UNITED STATES. LEGISLATIVE INTENT TO RELY UPON SUCH MEMBERS AS A DEPENDABLE SOURCE OF MANPOWER IS INDICATED BY THE ENACTMENT OF PROVISIONS OF LAW PERTAINING TO THE MATTER IN 10 U.S.C. 3504, 6482 AND 8504, PROVIDING FOR THE ORDERING OF SUCH MEMBERS TO ACTIVE DUTY WITHOUT THEIR CONSENT.

SINCE RETIRED ENLISTED MEN OF THE REGULAR COMPONENTS REMAIN A PART OF THE ARMED FORCES, IT SEEMS CLEAR THAT THEIR RIGHT TO RETIRED OR RETIRMENT PAY IS DEPENDENT ON A CONTINUATION OF THEIR MILITARY STATUS. 38 COMP. GEN. 523. WE HELD IN 37 COMP. GEN. 207 THAT THE RIGHT OF A RETIRED MEMBER (OFFICER) OF THE REGULAR NAVY TO RETIRED PAY ENDS IF HIS STATUS IN THE REGULAR NAVY TERMINATES AND THAT LOSS OF CITIZENSHIP IS INCONSISTENT WITH A CONTINUATION OF THAT STATUS. WE SEE NO REASON FOR A DIFFERENT RULE IF THE RETIRED MEMBER IS AN ENLISTED MAN RATHER THAN AN OFFICER. WHILE CITIZENSHIP IS NOT A REQUIREMENT IN ALL CASES FOR ENLISTMENT IN THE REGULAR ESTABLISHMENTS OF THE ARMED FORCES, IF AN ENLISTED MAN IS A CITIZEN IT WOULD SEEM THAT A LOSS OF HIS CITIZENSHIP AS A RESULT OF HIS OWN VOLUNTARY ACTION BY ACQUIRING CITIZENSHIP IN A FOREIGN COUNTRY WOULD BE INCONSISTENT WITH HIS OATH OF ENLISTMENT TO BEAR TRUE FAITH AND ALLEGIANCE TO THE UNITED STATES (10 U.S.C. 501) AND THUS WOULD BE SO REPUGNANT TO HIS STATUS AS A MEMBER OF THE ARMED FORCES AS TO WARRANT THE TERMINATION OF HIS RETIRED PAY. CF. 41 COMP. GEN. 715. QUESTION (1) IS ANSWERED ACCORDINGLY.

CONCERNING QUESTION (2), 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.

IN OUR DECISION OF JUNE 22, 1964, B-153942, 43 COMP. GEN. 821,IT WAS HELD THAT A RETIRED ENLISTED MAN (NATURALIZED CITIZEN OF THE UNITED STATES) OF THE REGULAR AIR FORCE DID NOT LOSE HIS CITIZENSHIP OR HIS RIGHT TO RETIRED PAY BE RESIDING IN ENGLAND, THE COUNTRY OF HIS BIRTH, ATTENTION BEING INVITED TO THE FACT THAT THE SUPREME COURT IN THE CASE OF SCHNEIDER V. RUSK, SUP.CT. NO. 368, MAY 18, 1964, HELD THAT THE APPLICABLE PROVISIONS OF SECTION 352 OF THE ACT OF JUNE 27, 1952, CH. 477, 66 STAT. 269, 8 U.S.C. 1484 (CITED IN THE COMMITTEE ACTION DISCUSSION), RELATING TO LOSS OF CITIZENSHIP ACQUIRED BY NATURALIZATION, AS A RESULT OF RESIDENCE IN A FOREIGN COUNTRY OF WHICH THE PERSON CONCERNED WAS FORMERLY A NATIONAL, WERE UNCONSTITUTIONAL.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR QUESTIONING THE RIGHT TO RETIRED PAY OF A RETIRED ALIEN ENLISTED MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES, BECAUSE OF HIS RESIDENCE IN A FOREIGN COUNTRY, IN THE ABSENCE OF SOME PROVISION OF LAW OR REGULATION AFFECTING HIS RIGHT IN SUCH CIRCUMSTANCES. SEE, ALSO, B-58879, FEBRUARY 27, 1947, WHICH DEALT WITH THE MATTER OF PAYMENT OF RETAINER AND RETIRED PAY TO NATURALIZED CITIZENS OF THE UNITED STATES OF JAPANESE ANCESTRY WHO RESIDED IN JAPAN FOLLOWING TRANSFER TO THE FLEET RESERVE OR RETIREMENT. QUESTION (2) IS ANSWERED IN THE NEGATIVE.