B-23727, FEBRUARY 27, 1942, 21 COMP. GEN. 823

B-23727: Feb 27, 1942

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DISQUALIFYING ALIENS FOR MILITARY SERVICE ARE NOT WITHIN THE ALIEN EMPLOYMENT RESTRICTIONS OF THE SAID DEFICIENCY APPROPRIATION ACT AND. PROVIDED THE FUNDS ARE OTHERWISE AVAILABLE. OF SALARY EITHER FOR ACTUAL SERVICES PERFORMED OR FOR ACCRUED ANNUAL LEAVE IS UNAUTHORIZED. 1942: I HAVE YOUR LETTER OF FEBRUARY 9. WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES. IN CONNECTION WITH THIS PROVISION OF LAW A DECISION IS REQUESTED (1) AS TO WHETHER FILIPINOS WHO WERE IN THE ARMED FORCES ON JULY 3. WHO WERE SINCE DISCHARGED. (2) IN THE EVENT THE REPLY TO THE FOREGOING INQUIRY IS IN THE NEGATIVE WHETHER SUCH FILIPINOS WHO WERE INELIGIBLE FOR EMPLOYMENT UNDER THE AFOREMENTIONED DEFICIENCY ACT BUT WHO WERE NEVERTHELESS SO EMPLOYED ARE ENTITLED TO RECEIVE PAY AND ACCRUED ANNUAL LEAVE WITH PAY EARNED SINCE JULY 3.

B-23727, FEBRUARY 27, 1942, 21 COMP. GEN. 823

ALIENS - EMPLOYMENT - FILIPINOS FILIPINOS LEGALLY IN THE ARMED FORCES OF THE UNITED STATES ON JULY 3, 1941, DATE OF THE SECOND DEFICIENCY APPROPRIATION ACT, 1941, AND SUBSEQUENTLY DISCHARGED FOR REASONS OTHER THAN UNDER THE TERMS OF THE ACT OF AUGUST 19, 1937, AS AMENDED, OR OTHER SIMILAR STATUTE, DISQUALIFYING ALIENS FOR MILITARY SERVICE ARE NOT WITHIN THE ALIEN EMPLOYMENT RESTRICTIONS OF THE SAID DEFICIENCY APPROPRIATION ACT AND, THEREFORE, MAY NOW BE EMPLOYED UNDER THE NAVY DEPARTMENT AND PAID FROM FUNDS APPROPRIATED UNDER THAT ACT, PROVIDED THE FUNDS ARE OTHERWISE AVAILABLE. IF THE NAVY DEPARTMENT HAS EMPLOYED FILIPINOS INELIGIBLE FOR EMPLOYMENT BECAUSE OF ALIEN EMPLOYMENT RESTRICTIONS, PAYMENT TO SUCH PERSONS FROM FUNDS APPROPRIATED UNDER THE SECOND DEFICIENCY APPROPRIATION ACT, 1941, OF SALARY EITHER FOR ACTUAL SERVICES PERFORMED OR FOR ACCRUED ANNUAL LEAVE IS UNAUTHORIZED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, FEBRUARY 27, 1942:

I HAVE YOUR LETTER OF FEBRUARY 9, 1942, L16-4/17) (L10-5 (410210), AS FOLLOWS:

THE SECOND DEFICIENCY APPROPRIATION ACT OF JULY 3, 1941, PUBLIC, NO. 150, 77TH CONGRESS PROVIDES IN SECTION 304 THEREOF AS FOLLOWS:

SEC. 304. "NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED (EXCEPT AS OTHERWISE PROVIDED FOR HEREIN) SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAD THERETOFORE FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.'

IN CONNECTION WITH THIS PROVISION OF LAW A DECISION IS REQUESTED (1) AS TO WHETHER FILIPINOS WHO WERE IN THE ARMED FORCES ON JULY 3, 1941, THE DATE OF THE APPROVAL OF THE AFOREMENTIONED DEFICIENCY ACT, BUT WHO WERE SINCE DISCHARGED, MAY NOW BE EMPLOYED AND PAID FROM THE FUNDS APPROPRIATED BY THE AFOREMENTIONED DEFICIENCY ACT; (2) IN THE EVENT THE REPLY TO THE FOREGOING INQUIRY IS IN THE NEGATIVE WHETHER SUCH FILIPINOS WHO WERE INELIGIBLE FOR EMPLOYMENT UNDER THE AFOREMENTIONED DEFICIENCY ACT BUT WHO WERE NEVERTHELESS SO EMPLOYED ARE ENTITLED TO RECEIVE PAY AND ACCRUED ANNUAL LEAVE WITH PAY EARNED SINCE JULY 3, 1941.

THE ACT OF AUGUST 19, 1937, 50 STAT. 696, ENTITLED "AN ACT FOR THE PROTECTION OF CERTAIN ENLISTED MEN OF THE ARMY," AS AMENDED BY THE ACT OF AUGUST 16, 1940, 54 STAT. 788, PROVIDES AS FOLLOWS:

THAT, NOTWITHSTANDING THE LANGUAGE CONTAINED IN THE SECOND PROVISO UNDER THE SUBHEADING "PAY, AND SO FORTH, OF THE ARMY" OF THE ACT OF JULY 1, 1937 (50 STAT. 446), AND SIMILAR PROVISOS OF OTHER ACTS HERETOFORE OR HEREAFTER ENACTED, ANY ALIEN OTHERWISE ELIGIBLE FOR ENLISTMENT IN THE REGULAR ARMY, WHO SHALL HAVE BEEN AN ENLISTED MAN THEREIN FOR ANY PERIOD SUBSEQUENT TO JUNE 30, 1937, WHO SHALL HAVE MADE A VALID AND STILL EFFECTIVE DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE UNITED STATES, OR SHALL HAVE FURNISHED PRIMA FACIE EVIDENCE OF HIS ELIGIBILITY FOR ADMISSION TO SUCH CITIZENSHIP WITHOUT PRIOR FORMAL DECLARATION OF INTENTION, AND SHALL HAVE AGREED IN WRITING TO COMPLETE HIS NATURALIZATION WITHOUT UNNECESSARY DELAY, SHALL UP TO AND INCLUDING JUNE 30, 1943, BE DEEMED ELIGIBLE (1) IF IN THE SERVICE, FOR CONTINUANCE THEREIN UNTIL EXPIRATION OF CURRENT ENLISTMENT, FOR REENLISTMENT, AND FOR CONTINUANCE IN THE SERVICE UNDER SUCH REENLISTMENT NOT LATER THAN JUNE 30, 1943; (2) IF NOT IN THE SERVICE, FOR REENLISTMENT NOT LATER THAN JUNE 30, 1943; (2) IF NOT IN THE SERVICE, FOR REENLISTMENT AND FOR CONTINUANCE IN THE SERVICE UNDER SUCH REENLISTMENT NOT LATER THAN JUNE 30, 1943; AND (3) IN EITHER CASE FOR RECEIPT WHILE SO SERVING OF THE PAY OF HIS GRADE AND LENGTH OF PRIOR SERVICE: PROVIDED, THAT FILIPINOS WHO WERE SERVING IN THE ARMY ON JULY 1, 1937, MAY BE RETAINED IN THE SERVICE UNDER CURRENT ENLISTMENTS AND MAY BE REENLISTED WITHOUT REGARD TO THEIR CITIZENSHIP STATUS, AND MAY RECEIVE THEIR PROPER PAY AND ALLOWANCES UNDER SUCH ENLISTMENTS AND REENLISTMENTS.

SEC. 2. HEREAFTER, SERVICE IN THE REGULAR ARMY HONORABLY TERMINATED SHALL BE CREDITED FOR PURPOSES OF LEGAL RESIDENCE UNDER THE NATURALIZATION LAWS OF THE UNITED STATES, REGARDLESS OF THE LEGALITY OR ILLEGALITY OF THE ORIGINAL ENTRY INTO THE UNITED STATES OF THE ALIEN, THE CERTIFICATE OF THE HONORABLE TERMINATION OF SUCH SERVICE OR A DULY AUTHENTICATED COPY THEREOF MADE BY A NATURALIZATION EXAMINER OF THE IMMIGRATION AND NATURALIZATION SERVICE BEING ACCEPTED IN LIEU OF THE CERTIFICATE FROM THE DEPARTMENT OF LABOR OF THE ALIEN'S ARRIVAL IN THE UNITED STATES REQUIRED BY THE NATURALIZATION LAWS; AND SERVICE SO CREDITED IN EACH CASE SHALL BE CONSIDERED AS HAVING BEEN PERFORMED IMMEDIATELY PRECEDING THE FILING OF THE PETITION FOR NATURALIZATION.

BEGINNING WITH THE ACT OF JUNE 11, 1938, 52 STAT. 646, MAKING APPROPRIATIONS FOR THE MILITARY SERVICE FOR THE FISCAL YEAR ENDED JUNE 30, 1939, AND CONTINUING THROUGH THE FISCAL YEAR ENDED JUNE 30, 1941, BY THE ACT OF JUNE 13, 1940, 54 STAT. 355, UNDER THE HEADING " PAY OF THE ARMY," IDENTICAL PROVISIONS APPEAR PROHIBITING THE USE OF FUNDS APPROPRIATED THEREIN FOR PAYMENT TO ALIENS--- THE LANGUAGE EMPLOYED BEING 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 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: * * *

THE CORRESPONDING APPROPRIATION ACT FOR THE FISCAL YEAR 1942, APPROVED JUNE 30, 1941, PUBLIC LAW 139, 55 STAT. 369, CONTAINS THE SAME PROVISION BUT AT THE END THEREOF THERE WERE ADDED THE RDS,"AS AMENDED BY THE ACT APPROVED AUGUST 16, 1940.' SEE ALSO, SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885. THE STATUTORY PROVISIONS ABOVE QUOTED WERE CONSTRUED IN 20 COMP. GEN. 585; ID. 588; ID. 896. NO SIMILAR RESTRICTION ON THE USE OF FUNDS FOR THE PAYMENT OF COMPENSATION OR PAY OF ALIENS HAS APPEARED IN ANY OF THE ANNUAL APPROPRIATION ACTS FOR THE NAVY DEPARTMENT AND NAVAL SERVICE.

SECTION 304 OF THE SECOND DEFICIENCY APPROPRIATION ACT OF JULY 3, 1941, 55 STAT. 576, QUOTED IN YOUR LETTER, EXEMPTS FROM THE RESTRICTION ON THE USE OF APPROPRIATIONS THEREIN PROVIDED FOR THE COMPENSATION OF NONCITIZENS, TWO CLASSES OF ALIENS WHO WERE "IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT," ONE CONSISTING OF THOSE "WHO BEING ELIGIBLE FOR CITIZENSHIP HAD THERETOFORE FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN," AND THE OTHER, CONSISTING OF THOSE "WHO OWE ALLEGIANCE TO THE UNITED STATES.'

IN DECISION OF JUNE 2, 1938, 17 COMP. GEN. 1047, 1048, WHEREIN WAS CONSIDERED THE FIRST APPROPRIATION RESTRICTION ON THE PAYMENT OF COMPENSATION TO ALIENS, IT WAS STATED:

THE CLAUSE "WHO OWES ALLEGIANCE TO THE UNITED STATES" WAS ADDED IN AN AMENDMENT TO H.R. 8947 ON THE FLOOR OF THE SENATE FEBRUARY 28, 1938, AND FROM THE DEBATES IT IS CLEARLY APPARENT THE INTENT WAS TO EXEMPT FROM THE RESTRICTION FILIPINOS IN THE SERVICE OF THE UNITED STATES ON MARCH 28, 1938, IN RECOGNITION OF THE FOLLOWING PROVISIONS OF SECTION 2 (A) (1) OF THE PHILIPPINE ISLANDS INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 456:

"THE CONSTITUTION FORMULATED AND DRAFTED SHALL BE REPUBLICAN IN FORM, SHALL CONTAIN A BILL OF RIGHTS, AND SHALL, EITHER AS A PART THEREOF OR IN AN ORDINANCE APPENDED THERETO, CONTAIN PROVISIONS TO THE EFFECT THAT, PENDING THE FINAL AND COMPLETE WITHDRAWAL OF THE SOVEREIGNTY OF THE UNITED STATES OVER THE PHILIPPINE ISLANDS---

"/1) ALL CITIZENS OF THE PHILIPPINE ISLANDS SHALL OWE ALLEGIANCE TO THE UNITED STATES.'

* * * WITH THE EXCEPTION OF FILIPINOS WHOSE STATUS IS FIXED BY THE ACT OF MARCH 24, 1934, SUPRA, THE WORD "ALLEGIANCE" AS USED IN THE STATUTORY RESTRICTION UNDER CONSIDERATION MEANS ABSOLUTE AND PERMANENT ALLEGIANCE TO THE UNITED STATES AS DISTINGUISHED FROM QUALIFIED AND TEMPORARY ALLEGIANCE. OTHERWISE THE STATUTE WOULD BE PRACTICALLY A NULLITY. HENCE, IN APPLYING THE STATUTE, ALIENS RESIDING IN THE UNITED STATES, OTHER THAN FILIPINOS, SHOULD NOT BE REGARDED AS OWING ALLEGIANCE TO THE UNITED STATES. FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM THE RESTRICTION.

IN DECISION OF JUNE 25, 1938, 17 COMP. GEN. 1116, 1117, WHEREIN THE STATUS OF FILIPINOS WAS GIVEN FURTHER CONSIDERATION, IT WAS STATED:

FILIPINOS ARE EXEMPT FROM THE STATUTORY RESTRICTIONS IN QUESTION IF THEY WERE "IN THE SERVICE OF THE UNITED STATES"--- IN ANY DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT--- ON APRIL 27, 1938, DATE OF THE APPROVAL OF THE ACT. THE STATEMENT IN DECISION OF JUNE 2, 1938, A 95291, 17 COMP. GEN. 1047, THAT " FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM RESTRICTION," QUOTED IN YOUR LETTER, WAS INTENDED TO REFER TO ORIGINAL ENTRY INTO THE SERVICE OF THE UNITED STATES AFTER MARCH 28, 1938, NOT TO FILIPINOS WHO WERE IN THE SERVICE OF THE UNITED STATES ON THAT DATE AND CONTINUE IN THE SERVICE OR ARE REAPPOINTED THEREAFTER.

THERE IS NOTHING IN THE STATUTE TO REQUIRE APPLICATION OF THE RESTRICTION TO FILIPINOS IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THE ACT WHO HAVE A BREAK IN SERVICE THEREAFTER OR WHO TRANSFER WITHOUT BREAK IN SERVICE FROM ONE DEPARTMENT OR ESTABLISHMENT TO ANOTHER AFTER THE DATE OF THE APPROVAL OF THE ACT.

COMPARE 19 COMP. GEN. 492.

THERE APPEARS JUSTIFIED THE CONCLUSION THAT SERVICE IN THE ARMED FORCES OF THE UNITED STATES IS COMPREHENDED IN THE PHRASE "IN THE SERVICE OF THE UNITED STATES" WITHIN THE MEANING THEREOF AS USED IN ABOVE STATUTES AND THE RULES STATED IN THE QUOTED DECISIONS APPLICABLE TO FILIPINOS. THUS, HAVING REGARD FOR THE PROVISIONS OF SECTION 2 (A) (1) OF THE PHILIPPINE ISLANDS INDEPENDENCE ACT OF MARCH 24, 1934, 48 STAT. 456, YOU ARE ADVISED, WITH REFERENCE TO QUESTION (1) STATED IN YOUR LETTER, THAT IF A FILIPINO WAS LEGALLY IN THE ARMED FORCES OF THE UNITED STATES ON JULY 3, 1941, AND WAS NOT SUBSEQUENTLY DISCHARGED THEREFROM BY REASON OF SOME DISQUALIFICATION UNDER THE TERMS OF THE ACT OF AUGUST 19, 1937, AS AMENDED BY THE ACT OF AUGUST 16, 1940, OR UNDER THE TERMS OF SOME OTHER STATUTE DISQUALIFYING ALIENS FOR SERVICE IN THE ARMED FORCES, HE NOW MAY BE EMPLOYED UNDER THE NAVY DEPARTMENT AND PAID FROM THE FUNDS APPROPRIATED BY THE DEFICIENCY ACT OF JULY 3, 1941, IF SUCH FUNDS OTHERWISE ARE AVAILABLE TO PAY FOR HIS SERVICES.

REFERRING TO QUESTION (2), IF THERE HAVE BEEN EMPLOYED ANY FILIPINOS INELIGIBLE FOR EMPLOYMENT, THEY MAY NOT BE PAID FROM THE DEFICIENCY APPROPRIATION ANY SALARY EITHER FOR ACTUAL SERVICES PERFORMED OR FOR ACCRUED ANNUAL LEAVE. SEE 18 COMP. GEN. 868; 20 ID. 337.