B-25053, MAY 1, 1942, 21 COMP. GEN. 969

B-25053, MAY 1, 1942, 21 COMP. GEN. 969

RESTRICTION ON PAYMENTS TO NONCITIZENS IN MILITARY SERVICE - APPLICABILITY TO PERSONS LOSING NATIONALITY BY WARTIME DESERTION THE PROHIBITION IN THE MILITARY APPROPRIATION ACT OF 1942 AGAINST THE USE OF FUNDS APPROPRIATED THEREBY FOR PAYMENTS TO "ANY PERSON, CIVIL OR MILITARY, NOT A CITIZEN OF THE UNITED STATES" DOES NOT OPERATE AS A RESTRICTION ON THE PAYMENT OF PAY AND ALLOWANCES TO NATIVE-BORN OR NATURALIZED CITIZENS OF THE UNITED STATES WHO, AFTER LOSING THEIR UNITED STATES NATIONALITY UNDER SECTION 401 OF THE ACT OF OCTOBER 14, 1940, BY REASON OF CONVICTION OF WARTIME DESERTION FROM THE ARMY, HAVE BEEN REENLISTED OR RESTORED TO DUTY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MAY 1, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED APRIL 4, 1942, AS FOLLOWS:

THERE HAS BEEN BROUGHT TO MY ATTENTION A PROBLEM INVOLVING THE PAY OF MILITARY PERSONNEL WHO ARE RESTORED TO DUTY FOLLOWING THE SUSPENSION, AND THE REMISSION OF THE UNEXECUTED PORTION, OF A COURT MARTIAL SENTENCE IMPOSED ON CONVICTION OF DESERTION IN WARTIME. IN THE ARMY IT HAS LONG BEEN THE PRACTICE, IN WORTHY CASES, TO SUSPEND THE EXECUTION OF AN ADJUDGED DISHONORABLE DISCHARGE UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT SO THAT, IF HIS BEHAVIOR IN THE MEANTIME WARRANTS, THE UNEXECUTED PORTION OF THE SENTENCE MAY BE REMITTED AND THE SOLDIER RESTORED TO DUTY. THIS PRACTICE HAS BEEN OF INESTIMABLE VALUE IN THE REHABILITATION AND CONSERVATION OF MANPOWER.

HOWEVER, SINCE THE ADVENT OF WAR, A QUESTION HAS ARISEN IN THE CASE OF PERSONS CONVICTED OF WARTIME DESERTION AND THEREAFTER RESTORED TO DUTY. IT APPEARS THAT SUCH PERSONS UPON CONVICTION LOSE THEIR UNITED STATES NATIONALITY (CITIZENSHIP) BY VIRTUE OF THE PROVISIONS OF SECTION 401 (G) OF THE NATIONALITY ACT OF 1940 (ACT OCT. 14, 1940, 54 STAT. 1168; 8 U.S.C. 801). IT IS BELIEVED THAT CITIZENSHIP SO LOST CAN BE RESTORED, SHORT OF REMEDIAL LEGISLATION, ONLY BY THE EXERCISE OF THE PARDONING POWER OF THE PRESIDENT AND IS NOT AFFECTED BY THE REMISSION OF THE SENTENCE OR RESTORATION TO DUTY. UNDER SUCH CIRCUMSTANCES THE APPLICABILITY OF THE RESTRICTION, CONTAINED UNDER THE HEADING " PAY OF THE ARMY" IN THE MILITARY APPROPRIATION ACT, 1942 (ACT JUNE 30, 1941, PUBLIC LAW 139, 77TH CONG.), AS TO THE USE OF FUNDS APPROPRIATED THEREBY FOR THE PAY OF NONCITIZENS, HAS BEEN QUESTIONED ON THE THEORY THAT THE INTENT OF THE CONGRESS WAS TO IMPOSE RESTRICTIONS PRIMARILY ON PAYMENTS TO ALIENS, OTHER THAN THOSE OF THE EXCEPTED CLASSES, AND NOT ON PAYMENTS TO UNITED STATES CITIZENS WHO MAY HAVE LOST THEIR NATIONALITY BY OPERATION OF LAW. THIS THEORY FINDS SOME SUPPORT IN THE FACT THAT, IN A LATER LAW (ACT JULY 29, 1941, PUBLIC LAW 189, 77TH CONG., AMENDING R.S. 1118), THE CONGRESS EMPOWERED THE SECRETARY OF WAR TO AUTHORIZE THE ENLISTMENT OF DESERTERS IN SPECIAL MERITORIOUS CASES, WHICH AUTHORIZATION, AS TO PERSONS CONVICTED OF WARTIME DESERTION, WOULD BE A NULLITY IF SUCH PERSONS COULD NOT BE PAID.

YOUR DECISION IS THEREFORE RESPECTFULLY REQUESTED WHETHER PERSONS REENLISTED, OR RESTORED TO DUTY, AFTER CONVICTION BY COURT MARTIAL OF WARTIME DESERTION CAN BE PAID UNDER THE MILITARY APPROPRIATION ACT, 1942, SUPRA, OR FROM ANY OTHER APPROPRIATED FUNDS. AS THERE ARE A NUMBER OF CASES OF THIS NATURE PENDING, YOUR DECISION AT THE EARLIEST PRACTICABLE DATE WILL BE GREATLY APPRECIATED.

SECTION 2 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1084, 1085 (10 U.S.C. 1457), PROVIDES IN PART:

WHENEVER HE SHALL DEEM SUCH ACTION MERITED THE SECRETARY OF WAR MAY REMIT THE UNEXECUTED PORTIONS OF THE SENTENCES OF OFFENDERS SENT TO THE UNITED STATES DISCIPLINARY BARRACKS FOR CONFINEMENT AND DETENTION THEREIN, AND IN ADDITION TO SUCH REMISSION MAY GRANT THOSE WHO HAVE NOT BEEN DISCHARGED FROM THE ARMY AN HONORABLE RESTORATION TO DUTY, AND MAY AUTHORIZE THE REENLISTMENT OF THOSE WHO HAVE BEEN DISCHARGED OR UPON THEIR WRITTEN APPLICATION TO THAT END ORDER THEIR RESTORATION TO THE ARMY TO COMPLETE THEIR RESPECTIVE TERMS OF ENLISTMENT, AND SUCH APPLICATION AND ORDER OF RESTORATION SHALL BE EFFECTIVE TO REVIVE THE ENLISTMENT CONTRACT FOR A PERIOD EQUAL TO THE ONE NOT SERVED UNDER SAID CONTRACT.

THE SAME ACT, 38 STAT. 1062, 1074 (10 U.S.C. 1457A), CONTAINS THE FOLLOWING PROVISION:

* * * PROVIDED FURTHER, THAT THE AUTHORITY NOW VESTED IN THE SECRETARY OF WAR TO GIVE AN HONORABLE RESTORATION TO DUTY, IN CASE THE SAME IS MERITED, TO GENERAL PRISONERS CONFINED IN THE UNITED STATES DISCIPLINARY BARRACKS AND ITS BRANCHES SHALL BE EXTENDED SO THAT SUCH RESTORATION MAY BE GIVEN TO GENERAL PRISONERS CONFINED ELSEWHERE * * *.

SECTION 401 OF THE ACT OF OCTOBER 14, 1940, 54 STAT. 1168, 1169 (8 U.S.C. 801), PROVIDES:

A PERSON WHO IS A NATIONAL OF THE UNITED STATES, WHETHER BY BIRTH OR NATURALIZATION, SHALL LOSE HIS NATIONALITY BY: * * *

(G) DESERTING THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES IN TIME OF WAR, PROVIDED HE IS CONVICTED THEREOF BY A COURT MARTIAL; * * *

COMMENCING WITH THE ACT OF JULY 1, 1937, 50 STAT. 446, ACTS MAKING ANNUAL APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT HAVE CONTAINED A PROHIBITION AGAINST THE USE OF THE FUNDS APPROPRIATED FOR PAYMENTS TO PERSONS NOT CITIZENS OF THE UNITED STATES, EXCEPT AS INDICATED THEREIN. THE MILITARY APPROPRIATION ACT, 1942, PUBLIC LAW 139, APPROVED JUNE 30, 1941, 55 STAT. 369, MAKING APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1942, CONTAINS THE FOLLOWING PROVISION UNDER THE HEADING " PAY OF THE ARMY: "

* * * PROVIDED FURTHER, 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, TO SELECTIVE TRAINEES, 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, AS AMENDED BY THE ACT APPROVED AUGUST 16, 1940: * * *

THE QUESTION PRESENTED IS WHETHER THE ABOVE RESTRICTION BARS PAYMENT TO A PERSON WHO DESERTS THE MILITARY SERVICE IN TIME OF WAR AND IS CONVICTED THEREOF. YOUR LETTER INDICATES THAT THE QUESTION CONCERNS PERSONS WHO, PRIOR TO THEIR DESERTION, WERE EITHER NATIVE-BORN OR NATURALIZED CITIZENS OF THE UNITED STATES AND THE DECISION HEREIN HAS REFERENCE TO SUCH PERSONS ONLY.

EXCEPT AS PROVIDED IN THE STATUTE, THE RESTRICTIONS IN THE APPROPRIATION ACTS PROHIBIT THE USE OF THE FUNDS "FOR THE PAY OF ANY PERSON, CIVIL OR MILITARY, NOT A CITIZEN OF THE UNITED STATES.' THESE RESTRICTIONS WERE DESIGNED TO PROHIBIT THE ENLISTMENT IN THE ARMY OF ALIENS, 20 COMP. GEN. 585, BUT IT DOES NOT NECESSARILY FOLLOW THAT THEY WERE INTENDED TO RESTRICT PAYMENTS TO PERSONS (IF OTHERWISE PROPERLY IN THE ARMY) WHO HAVE LOST THEIR UNITED STATES NATIONALITY UNDER THE ACT OF OCTOBER 14, 1940, SUPRA, BY REASON OF THEIR CONVICTION OF DESERTION IN TIME OF WAR. CLEARLY SUCH A DESERTER DOES NOT BECOME AN ALIEN, WITHIN THE ORDINARY MEANING OF THAT WORD, SOLELY BECAUSE OF HIS DESERTION. HE OWES NO ALLEGIANCE TO A FOREIGN COUNTRY, IS NOT A CITIZEN THEREOF OR ENTITLED TO THE PROTECTION OF ITS LAWS. HE IS DEPRIVED OF SOME OF THE RIGHTS AND PRIVILEGES ORDINARILY ENJOYED BY CITIZENS OF THE UNITED STATES, BUT IT APPEARS TO BE THE UNITED STATES TO WHICH HE MUST LOOK FOR THE PROTECTION OF HIS LIFE, LIBERTY, AND PROPERTY AND FOR WHICH HE MAY BE REQUIRED TO PERFORM MILITARY SERVICE.

BOUVIER'S LAW DICTIONARY DEFINES "NATIONALITY" AS " CHARACTER, STATUS, OR CONDITION WITH REFERENCE TO THE RIGHTS AND DUTIES OF A PERSON AS A MEMBER OF SOME ONE STATE OR NATION RATHER THAN ANOTHER.' FOR EXAMPLE, A DESERTER, UPON CONVICTION, MAY LOSE HIS RIGHT OF SUFFRAGE AND HIS RIGHT TO HOLD PUBLIC OFFICE, BUT THESE RIGHTS ARE NOT NECESSARILY CONSTITUENTS OF CITIZENSHIP. SEE MINOR V. HAPPERSETT, 88 U.S. 162. AND IN THE CASE OF WHITE V. HART, 80 U.S. 646, IT IS STATED ON PAGE 651 THAT---

* * * A CITIZEN IS STILL A CITIZEN, THOUGH GUILTY OF CRIME AND VISITED WITH PUNISHMENT. HIS POLITICAL RIGHTS MAY BE PUT IN ABEYANCE OR FORFEITED. THE RESULT DEPENDS UPON THE RULE, AS DEFINED IN THE LAW, OF THE SOVEREIGN AGAINST WHOM HE HAS OFFENDED. * * *

THE WORD "CITIZEN" DOES NOT HAVE BUT ONE FIXED MEANING. IN PARAGRAPH 1932, VOLUME 2, STORY ON THE CONSTITUTION, IT IS STATED---

THE WORD CITIZEN IS EMPLOYED IN THE LAW IN DIFFERENT SENSES UNDER DIFFERENT CIRCUMSTANCES. AS GENERALLY EMPLOYED, HOWEVER, IT MAY BE SAID TO MEAN A PERSON OWING ALLEGIANCE TO THE GOVERNMENT, AND ENTITLED TO PROTECTION FROM IT. * * * IT THEREFORE INCLUDES FEMALES AS WELL AS MALES, MINORS AS WELL AS ADULTS, THOSE WHO DO NOT AS WELL AS THOSE WHO DO POSSESS THE PRIVILEGE OF THE ELECTIVE FRANCHISE. THIS CLAUSE CONSEQUENTLY CONFERS THE RIGHT TO VOTE OR TO PARTICIPATE IN THE GOVERNMENT UPON NO ONE. THAT IS A PRIVILEGE WHICH UNDER NO GOVERNMENT BELONGS TO ALL CITIZENS, BUT IS CONFERRED UPON THOSE PERSONS ONLY WHO POSSESS THE SPECIAL QUALIFICATIONS WHICH ARE PRESCRIBED BY EXPRESS LAW. AND IN DILLAWAY V. BURTON ET AL., 153 N.E. 13, 17, DECIDED IN 1926, THE SUPREME JUDICIAL COURT OF MASSACHUSETTS USED THE FOLLOWING LANGUAGE:

THE WORD "CITIZEN" IS NOT A TERM OF EXACT MEANING; IT MAY BE USED TO DESCRIBE AN INHABITANT OF A CITY OR TOWN, WHO ENJOYS ITS FREEDOM AND PRIVILEGES, AS DISTINGUISHED FROM AN ALIEN, OR ONE NOT ENTITLED TO POLITICAL PRIVILEGES. IT MAY BE USED TO DESCRIBE A PERSON, NATIVE OR NATURALIZED, OF EITHER SEX, WHO OWES ALLEGIANCE TO THE GOVERNMENT AND IS ENTITLED TO RECIPROCAL PROTECTION FROM IT, AS DISTINGUISHED FROM AN ALIEN. A PERSON MAY BE A CITIZEN IN THE SENSE THAT AS SUCH HE IS ENTITLED TO THE PROTECTION OF HIS LIFE, LIBERTY AND PROPERTY, ALTHOUGH HE MAY NOT NECESSARILY BE VESTED WITH THE SUFFRAGE OR OTHER POLITICAL RIGHTS.

FROM THE FOREGOING, IT IS APPARENT THAT A DESERTER MAY BE CONSIDERED CERTAINLY A NATIONAL OF THE UNITED STATES AND IN VIEW OF THE FACT THAT THE PURPOSE OF THE RESTRICTIONS IN THE APPROPRIATION ACTS WAS TO PROHIBIT THE ENLISTMENT IN THE ARMY OF ALIENS, IT IS UNLIKELY THAT THE CONGRESS DID NOT INTEND TO MAKE FUNDS AVAILABLE FOR PAYMENTS TO ALL CITIZENS OR NATIONALS, INCLUDING THOSE WHO MAY BE RESTRICTED AS TO THE ENJOYMENT OF SOME PRIVILEGES, IF SUCH PERSONS ARE OTHERWISE ENTITLED TO PAYMENT. IT IS NOTED THAT BY THE ACT OF JULY 29, 1941, 55 STAT. 606, PUBLIC LAW 189, SEVENTY-SEVENTH CONGRESS, THE SECRETARY OF WAR WAS AUTHORIZED TO REENLIST DESERTERS IN THE MILITARY SERVICE AND WHILE THE FACT THAT SUCH REENLISTMENTS ARE AUTHORIZED IS NOT DETERMINATIVE OF THE QUESTION WHETHER OR NOT FUNDS ARE AVAILABLE FOR THE PAY OF SUCH PERSONS, THIS ACTION ON THE PART OF THE CONGRESS TAKEN INTO CONSIDERATION WITH WHAT HAS ALREADY BEEN STATED IS AN INDICATION THAT THE CONGRESS DID NOT INTEND TO INCLUDE DESERTERS WHO WERE FORMERLY CITIZENS OF THE UNITED STATES WITHIN THE RESTRICTIONS IN THE APPROPRIATION ACTS. ACCORDINGLY, IT IS THE OPINION OF THIS OFFICE THAT SUCH PERSONS WHO DESERT THE MILITARY SERVICE IN TIME OF WAR ARE AT LEAST "CITIZENS OF THE UNITED STATES" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE MILITARY APPROPRIATION ACT, 1942, AND, THEREFORE, THE FUNDS APPROPRIATED BY SUCH ACT ARE LEGALLY AVAILABLE FOR THE PAYMENT OF PAY AND ALLOWANCES TO SUCH PERSONS.