B-15663, APRIL 1, 1941, 20 COMP. GEN. 588

B-15663, APRIL 1, 1941, 20 COMP. GEN. 588

ALIENS - PAY AND ALLOWANCES AS SELECTIVE TRAINEES FUNDS APPROPRIATED UNDER THE TITLE " PAY OF THE ARMY" FOR SELECTIVE TRAINING AND SERVICE ACT OF 1940 ARE AVAILABLE FOR PAYMENT OF PAY AND ALLOWANCES TO AN ALIEN RESIDENT OF THE UNITED STATES INDUCTED INTO THE MILITARY SERVICE UNDER SAID ACT WHO HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN, EVEN THOUGH HE HAS FAILED TO FILE A PETITION FOR NATURALIZATION WITHIN 7 YEARS OF THE FILING OF HIS DECLARATION OF INTENTION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, APRIL 1, 1941:

I HAVE YOUR LETTER OF MARCH 18, 1941, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO THE LEGALITY OF PAYING AN ALIEN WHO HAS BEEN INDUCTED INTO THE MILITARY SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC, NO. 783, 76TH CONG.). THE ALIEN IN QUESTION MADE A DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES BUT FAILED TO FILE HIS PETITION FOR NATURALIZATION WITHIN SEVEN YEARS THEREAFTER, IN COMPLIANCE WITH THE ACT OF JUNE 29, 1906 (34 STAT. 596; U.S.C. 373, 378).

THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, PROVIDES IN PERTINENT PART:

"SECTION 3. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, EVERY MALE CITIZEN OF THE UNITED STATES, AND EVERY MALE ALIEN RESIDING IN THE UNITED STATES WHO HAS DECLARED HIS INTENTION TO BECOME SUCH A CITIZEN, BETWEEN THE AGES OF TWENTY-ONE AND THIRTY-SIX AT THE TIME FIXED FOR HIS REGISTRATION, SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES. * * *" BY THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, ( PUBLIC NO. 800, 76TH CONG.), APPROPRIATION IS MADE " FOR PAY OF THE ARMY, INCLUDING NOT MORE THAN EIGHT HUNDRED THOUSAND SELECTIVE TRAINEES UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. * * *.'

THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS EXPRESSED THE VIEW THAT THE CASE OF UNITED STATES EX REL BARTALINI V. MITCHELL (248 F. 997) IS CONTROLLING ON THE QUESTION OF INDUCTION OF A DECLARANT ALIEN WHO HAS PERMITTED HIS DECLARATION OF INTENTION TO EXPIRE AFTER SEVEN YEARS WITHOUT FILING A PETITION FOR NATURALIZATION AND THAT SUCH AN ALIEN IS A DECLARANT ALIEN WITHIN THE MEANING OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, AND IS LIABLE FOR TRAINING AND SERVICE THEREUNDER.

HE HAS ALSO EXPRESSED THE VIEW THAT THE LIMITATION SPECIFIED IN THE MILITARY APPROPRIATION ACT, 1941 ( PUBLIC, NO. 611, 76TH CONG.), PROHIBITING USE OF APPROPRIATIONS FOR THE PAY OF ANY PERSON NOT A CITIZEN OF THE UNITED STATES DOES NOT AFFECT OR MODIFY THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, SUPRA, AND THAT THE FUNDS APPROPRIATED THEREBY ARE AVAILABLE FOR USE TO PAY DECLARANT ALIENS LAWFULLY INDUCTED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

AN EARLY EXPRESSION OF YOUR VIEWS IN THE PREMISES IS REQUESTED.

THE MILITARY APPROPRIATION ACT APPROVED JUNE 13, 1940, PUBLIC, NO. 611, MAKING APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1941, 54 STAT. 355, CONTAINS A PROVISO UNDER " PAY OF THE ARMY" AS FOLLOWS:

* * * THAT NO PART OF THIS OR ANY OTHER APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAY OF ANY PERSON, CIVIL OR MILITARY, NOT A CITIZEN OF THE UNITED STATES, UNLESS IN THE EMPLOY OF THE GOVERNMENT OR IN A PAY STATUS OF ANY SUCH PERSON BEYOND THE PERIOD OF ENLISTMENT OR TERMINATION OF EMPLOYMENT, BUT NOTHING HEREIN SHALL BE CONSTRUED AS APPLYING TO INSTRUCTORS OF FOREIGN LANGUAGES AT THE MILITARY ACADEMY, OR TO FILIPINOS IN THE ARMY TRANSPORT SERVICE, OR TO PERSONS EMPLOYED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES EXCEPT ENLISTED MEN OF THE REGULAR ARMY, OTHER THAN PHILIPPINE SCOUTS, UPON EXPIRATION OF ENLISTMENT, AND THIS PROVISION SHALL BE SUBJECT TO THE PROVISIONS OF THE ACT ENTITLED " AN ACT FOR THE PROTECTION OF CERTAIN ENLISTED MEN OF THE ARMY," APPROVED AUGUST 19, 1937: * * *

THE PERTINENT PART OF SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PUBLIC, NO. 783, 54 STAT. 886, IS AS QUOTED IN YOUR LETTER. THE ACT OF SEPTEMBER 16, 1940, FURTHER PROVIDES:

SEC. 6. THE PRESIDENT SHALL HAVE AUTHORITY TO INDUCT INTO THE LAND AND NAVAL FORCES OF THE UNITED STATES UNDER THIS ACT NO GREATER NUMBER OF MEN THAN THE CONGRESS SHALL HEREAFTER MAKE SPECIFIC APPROPRIATION FOR FROM TIME TO TIME.

SEC. 16. (A) EXCEPT AS PROVIDED IN THIS ACT, ALL LAWS AND PARTS OF LAWS IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY SUSPENDED TO THE EXTENT OF SUCH CONFLICT FOR THE PERIOD IN WHICH THIS ACT SHALL BE IN FORCE.

(C) THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, SUCH SUMS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT.

THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED OCTOBER 8, 1940, PUBLIC, NO. 800, SEVENTY-SIXTH CONGRESS, 54 STAT. 965, PROVIDED UNDER " WAR DEPARTMENT, MILITARY ACTIVITIES"

FOR ADDITIONAL AMOUNTS FOR APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT, FISCAL YEAR 1941, TO BE SUPPLEMENTAL TO, AND MERGED WITH, THE APPROPRIATIONS UNDER THE SAME HEADS IN THE MILITARY APPROPRIATION ACT, 1941, INCLUDING THE OBJECTS AND SUBJECT TO THE LIMITATIONS AND CONDITIONS SPECIFIED THEREIN EXCEPT AS OTHERWISE PROVIDED HEREIN, AND FOR ALL PURPOSES NECESSARY TO CARRY INTO EFFECT THE PROVISIONS OF THE ACT OF AUGUST 27, 1940 ( PUBLIC RES. 96, 76TH CONG.), AUTHORIZING THE PRESIDENT TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS INTO ACTIVE MILITARY SERVICE, AND OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC, NO. 783, 76TH CONG.), AS FOLLOWS: ( ITALICS SUPPLIED.)

PAY OF THE ARMY

FOR PAY OF THE ARMY INCLUDING NOT MORE THAN EIGHT HUNDRED THOUSAND SELECTIVE TRAINEES UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND INCLUDING NOT TO EXCEED $345,000 FOR THE EMPLOYMENT OF CIVILIAN CLERKS AT MILITARY HEADQUARTERS, $280,174,562: * *

UNDER THE PROVISIONS OF THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, SUPRA, FUNDS WERE APPROPRIATED FOR NOT MORE THAN 800,000 SELECTIVE TRAINEES UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 16, 1640. UNDER SECTION 3 (A) MALE ALIENS RESIDING IN THE UNITED STATES, BETWEEN THE AGES THEREIN SPECIFIED, ARE SUBJECT TO SUCH TRAINING AND SERVICE IN THE LAND AND NAVAL FORCES OF THE UNITED STATES AND INASMUCH AS THE PERTINENT LANGUAGE IN THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, SUPRA, IS GENERAL IN PURPOSE, IT IS CLEAR THAT SUCH DECLARANTS WERE NOT INTENDED TO BE EXCLUDED AND EXCUSED FROM THE OBLIGATION TO SERVE IN SUCH FORCES BY REASON OF THE LIMITATION CONTAINED IN THE ANNUAL MILITARY APPROPRIATIONS, BUT WERE EXCEPTED FROM SUCH PROHIBITION UNDER THE SPECIFIC AND UNQUALIFIED PROVISION FOR THE TRAINING OF NOT MORE THAN 800,000 SELECTEES. ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT THE FUNDS APPROPRIATED UNDER " PAY OF THE ARMY" FOR SUCH TRAINEES ARE LEGALLY AVAILABLE FOR THE PAYMENT OF PAY AND ALLOWANCES TO ALIEN DECLARANTS RESIDING IN THE UNITED STATES WHO HAVE BEEN INDUCTED INTO THE MILITARY SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

WITH REFERENCE TO THE AVAILABILITY OF SUCH APPROPRIATION FOR PAYING AN ALIEN SELECTEE WHO HAD BEEN INDUCTED INTO THE MILITARY SERVICE AND WHO HAD FAILED TO FILE HIS PETITION FOR NATURALIZATION WITHIN SEVEN YEARS AFTER DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES, IT IS TO BE NOTED THAT THE LANGUAGE OF SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, INSOFAR AS MATERIAL, IS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN THE ORIGINAL SECTION 2 OF THE ACT OF MAY 18, 1917, 40 STAT. 77, 78, AND UNDER THE RULING IN THE CITED BARTALINI CASE, 248 FED. 997--- THAT AN ALIEN INDUCTEE WHO HAD ALLOWED SEVEN YEARS TO ELAPSE AFTER HIS DECLARATION OF INTENTION WAS NEVERTHELESS SUBJECT TO THE PROVISIONS OF THAT ACT AND TO MILITARY SERVICE THEREUNDER UNLESS EXEMPTED IN THE MANNER PRESCRIBED BY THE STATUTE--- IT FOLLOWS THAT ALIENS WITH A SIMILAR STATUS WHO HAVE BEEN SELECTED FOR MILITARY TRAINING AND SERVICE UNDER THE ACT OF SEPTEMBER 16, 1940, ARE ENTITLED TO THE SAME BENEFITS WITH RESPECT TO PAY AND ALLOWANCES AS OTHER ALIEN DECLARANTS. SEE, ALSO, NOTES TO FRANKE V. MURRAY, L.R.A. 1918 E, 1018, 1023. THE CONCLUSION HEREIN, OF COURSE, IS NOT TO BE UNDERSTOOD AS AFFECTING THE PROHIBITION AGAINST THE PAYMENT TO ALIENS WHO HAVE VOLUNTARILY ENLISTED FOR THE FIRST TIME SUBSEQUENT TO JUNE 30, 1937. SEE DECISION B-15605, TODAY, COPY HEREWITH.