B-16775, JUNE 16, 1941, 20 COMP. GEN. 896

B-16775: Jun 16, 1941

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SUCH AN ALIEN WHO IS ERRONEOUSLY INDUCTED IS NOT EXCEPTED FROM THE PROHIBITION IN THE MILITARY APPROPRIATION ACT. MUST BE HELD TO HAVE REFERENCE TO THE FORMAL DECLARATION OF INTENTION CONTEMPLATED BY THE NATURALIZATION LAWS. AN ALIEN WHO HAD MERELY "APPLIED" FOR HIS FIRST PAPERS PRIOR TO INDUCTION WAS NOT EXCEPTED FROM THE PROHIBITION IN THE MILITARY APPROPRIATION ACT. FOR DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF WILLIAM H. THE RECORD DISCLOSES THAT MACLEAN IS AN ALIEN. THAT HE WAS INDUCTED INTO THE MILITARY SERVICE ON JANUARY 22. SUBMITTED WITH THE VOUCHER IS A STATEMENT SIGNED BY FIRST LIEUTENANT WILLIAM EVELAND. WAS ERRONEOUSLY INDUCTED INTO THE MILITARY SERVICE AT DETROIT.

B-16775, JUNE 16, 1941, 20 COMP. GEN. 896

ALIENS - PAY AS SELECTIVE TRAINEES SINCE SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SPECIFYING THE PERSONS LIABLE FOR TRAINING AND SERVICE UNDER THE ACT, DOES NOT CONTEMPLATE THE INDUCTION OF AN ALIEN WHO HAS NOT DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE UNITED STATES, SUCH AN ALIEN WHO IS ERRONEOUSLY INDUCTED IS NOT EXCEPTED FROM THE PROHIBITION IN THE MILITARY APPROPRIATION ACT, 1941, AGAINST PAYMENTS OF PAY TO ALIENS. 20 COMP. GEN. 588, DISTINGUISHED. SINCE THE WORDING "ALIEN * * * WHO HAS DECLARED HIS INTENTION TO TO BECOME SUCH A CITIZEN," AS USED IN SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SPECIFYING THE PERSONS LIABLE FOR TRAINING AND SERVICE UNDER THE ACT, MUST BE HELD TO HAVE REFERENCE TO THE FORMAL DECLARATION OF INTENTION CONTEMPLATED BY THE NATURALIZATION LAWS, AN ALIEN WHO HAD MERELY "APPLIED" FOR HIS FIRST PAPERS PRIOR TO INDUCTION WAS NOT EXCEPTED FROM THE PROHIBITION IN THE MILITARY APPROPRIATION ACT, 1941, AGAINST PAYMENTS OF PAY TO ALIENS, UNTIL HE BECAME A FORMAL DECLARANT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO E. E. FEIND, SPECIAL DISBURSING AGENT, JUNE 16, 1941:

THERE HAS BEEN CONSIDERED YOUR REQUEST DATED APRIL 16, 1941, FOR DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF WILLIAM H. MACLEAN, PRIVATE, COMPANY C; SEVEN HUNDRED AND SECOND MILITARY POLICE BATTALION ( Z/I ( ( SELECTIVE TRAINING AND SERVICE), COVERING PAY FOR THE PERIOD JANUARY 22, 1941, TO MARCH 26, 1941.

THE RECORD DISCLOSES THAT MACLEAN IS AN ALIEN; THAT HE WAS INDUCTED INTO THE MILITARY SERVICE ON JANUARY 22, 1941, AND THAT ON SUCH DATE HE HAD NOT DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE UNITED STATES. SUBMITTED WITH THE VOUCHER IS A STATEMENT SIGNED BY FIRST LIEUTENANT WILLIAM EVELAND, PERSONNEL ADJUTANT, AS FOLLOWS:

PRIVATE WILLIAM HARRY MACLEAN, 36101153, COMPANY C. 702D MILITARY POLICE BATTALION ( A/I (, WAS ERRONEOUSLY INDUCTED INTO THE MILITARY SERVICE AT DETROIT, MICHIGAN, ON JANUARY 22, 1941.

AT TIME OF INDUCTION PRIVATE MACLEAN WAS QUESTIONED REGARDING HIS CITIZENSHIP AND STATES THAT HE INFORMED THE BOARD THAT HE HAD "APPLIED" FOR HIS FIRST PAPERS ON JULY 5, 1940, TO FEDERAL COURT, DETROIT, MICHIGAN, AND THAT HE WAS THEN COLLECTING NECESSARY DOCUMENTARY EVIDENCE TO SUPPORT HIS APPLICATION FOR HIS FIRST PAPERS. THIS APPARENTLY WAS MISCONSTRUED BY THE INDUCTION BOARD, DUE TO THE LANGUAGE IN SECTION 3 (A) PUBLIC, NO. 783, 76TH CONGRESS, SINCE HE HAD ,DECLARED" HIS INTENTION TO BECOME A CITIZEN EVEN THOUGH HIS APPLICATION HAD NOT LEGALLY BEEN ACCEPTED AS REQUIRED BY LAW. FORM 221 INDICATES HE IS A CITIZEN OF THE UNITED STATES.

PRIVATE MACLEAN'S APPLICATION FOR FIRST PAPERS WAS ACCEPTED IN CIRCUIT COURT OF CHIPPEWA CO., MICHIGAN, ON MARCH 27, 1941, AND HE WAS ISSUED HIS FIRST PAPERS ON THAT DATE.

SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885, PROVIDES:

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. * * *

FUNDS FOR PAY OF TRAINEES INDUCTED UNDER THE ABOVE PROVISION WERE APPROPRIATED BY THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941 (ACT OF OCTOBER 8, 1940), 54 STAT. 966, UNDER " PAY OF THE ARMY.' SUCH ACT PROVIDES AS FOLLOWS:

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 RESOLUTION NUMBERED 96, SEVENTY-SIXTH CONGRESS), 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, NUMBERED 783, SEVENTY-SIXTH CONGRESS), AS FOLLOWS:

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: * *

THE MILITARY APPROPRIATION ACT, 1941, APPROVED JUNE 13, 1940, 54 STAT. 355, TO WHICH REFERENCE IS MADE IN THE ABOVE APPROPRIATION ACT, CONTAINS THE FOLLOWING PROVISO:

* * * 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 ON JULY 1, 1937, UNDER APPROPRIATIONS FOR THE WAR DEPARTMENT, NOR FOR THE PAY 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: * * *

IN DECISION OF APRIL 1, 1941, B-15663, 20 COMP. GEN. 588, IT WAS HELD THAT FUNDS APPROPRIATED BY THE THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, SUPRA, FOR TRAINEES UNDER THE SELECTIVE TRAINING AND SERVICE ACT WERE 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 SUCH ACT. HOWEVER, IN VIEW OF THE PROVISIONS OF SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT, IT IS EVIDENT THAT THE INDUCTION OF AN ALIEN OTHER THAN ONE WHO HAD DECLARED HIS INTENTION TO BECOME A CITIZEN OF THE UNITED STATES WAS NOT CONTEMPLATED, AND SUCH AN ALIEN IS NOT EXCEPTED FROM THE PROHIBITION AGAINST PAYMENTS TO ALIENS IN THE MILITARY APPROPRIATION ACT, 1941. THE WORDING "WHO HAS DECLARED HIS INTENTION TO BECOME SUCH A CITIZEN," AS USED IN SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT, MUST BE HELD TO HAVE REFERENCE TO THE FORMAL DECLARATION OF INTENTION CONTEMPLATED BY THE LAWS OF THE UNITED STATES RELATING TO NATURALIZATION OF ALIENS. SEE 8 U.S.C. 373 TO 377. SINCE MACLEAN DID NOT MAKE FORMAL DECLARATION OF INTENTION IN CONNECTION WITH HIS NATURALIZATION UNTIL MARCH 27, 1941, HE WAS NOT A DECLARANT ALIEN PRIOR TO THAT DATE AND THE LIMITATION IN THE MILITARY APPROPRIATION ACT, 1941, QUOTED ABOVE, PROHIBITS PAYMENT TO HIM OF PAY AND ALLOWANCES FOR THE PERIOD JANUARY 22, 1941 TO MARCH 26, 1941. ACCORDINGLY, YOU ARE ADVISED THAT YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.