A-8945552.
Decided by Board October 19, 1955.
Expatriation — Section 401 (g) of Nationality Act of 1940 — Ineligible to citizenship — Sections 101 (a) (19) and 314 of Immigration and Nationality Act — Korean conflict regarded as a state of war.
(1) Desertion from the armed forces during the Korean conflict constitutes desertion in time of war.
(2) A citizen member of the armed forces who was convicted on March 24, 1953, by a general court-martial and dishonorably discharged on May 12, 1954, by reason of his desertion from June 10, 1951, to February 3, 1953, was subject to expatriation under section 401 (g) of the Nationality Act of 1940.
(3) Such a person is now excludable under section 212 (a) (22) of the Immigration and Nationality Act as an alien ineligible to citizenship within the definitions contained in sections 101 (a) (19) and 314 of the act.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (22) — Ineligible to citizenship.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of a special inquiry officer dated January 3, 1955, holding appellant an expatriate under section 401 (g) of the Nationality Act of 1940 and excluding him on the above-stated ground. Appellant sought admission at San Ysidro, California, on August 12, 1954, as a United States citizen, after a reported absence from this country of about 15 minutes. Appellant acquired United States citizenship at birth on August 23, 1929, and has resided in this country all his life.
The special inquiry officer's determination of loss of United States citizenship under section 401 (g) arose as a result of appellant's conviction on March 24, 1953, by a general courtmartial under Article 85 of the Uniform Code of Military Justice for absence from his Army duties from June 10, 1951, to February 3, 1953, when he voluntarily returned. Appellant was sentenced to two years' confinement at hard labor and a dishonorable discharge by the general court-martial. On June 5, 1953, this sentence was reduced upon review to one and a half years' confinement at hard labor and a dishonorable discharge, which was effected on May 12, 1954. Appellant's desertion from the United States military forces occurred shortly after his marriage to a United States citizen on June 5, 1951. They have two United States citizen sons.
Section 401 of the Nationality Act of 1940 provided as follows:
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 forces of the United States in time of war, provided he is convicted thereof by a court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces * * * (Emphasis supplied.)
The United States Military Court of Appeals recently held that certain offenses, occurring during the Korean conflict, took place during war-time. In United States v. Avers, 4 USCMA 220, 15 Ct. Martial Rep. 220, the United States Court of Military Appeals held that a soldier's absence without leave during the Korean conflict amounted to being: Absent without leave "in time of war," within the meaning of Article 43 (a) of the U.S. Code of Military Justice, citing United States v. Bancroft, 3 USCMA 3, 11 Ct. Martial Rep. 3, and United States v. Gann, 3 USCMA 12, 11 Ct. Martial Rep. 12.
In determining that the acts of the accused within the continental United States, as distinguished from overseas as in the Bancroft and Gann cases, were in fact punishable under the Code of Military Justice, the Court noted that the hostilities in Korea must be considered as a state of war for military criminal law purposes. (See also United States v. Taylor, 4 USCMA 232, 15 Ct. Martial Rep. 232; United States v. Aldridge, 4 USCMA 107, 15 Ct. Martial Rep. 107; United States v. Anderten, 4 USCMA 354, 15 Ct. Martial Rep. 354.)
Since a military criminal proceeding requires the same exactness and strictness of proof which is necessary in expatriation and because the military court was concerned with the same basic issue as here, we will follow their lead and conclude that appellent is an expatriate under section 401 (g) as a citizen convicted for desertion in time of war ( Prize Cases, 2 Black 635, 668-9 (U.S., 1863); Hamilton v. McClaughry, 136 Fed. 445 (1905) [The Boxer Rebellion]; LaRue v. Kansas Mutual Life Ins. Co., 68 Kan. 539, 75 Pac. 494 (1904) [The Filipino Insurrection]; Arce v. State, A3 Tex. Crim. App. 292, 202 S.W. 951 (1918) [The Pershing Expedition into Mexico]; 47 Col. L. Rev. 742 (1947)).
Because of appellant's expatriation, he was an alien on the occasion of his last application for admission on August 12, 1954, at San Ysidro, California. The special inquiry officer excluded appellant under section 212 (a) (22) as an alien ineligible to United States citizenship as that term is used in section 101 (a) (19) and section 314. These sections read as follows:
Section 212 (a) — Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * *
(22) Aliens who are ineligible to citizenship, * * *.
Section 101 (a) (19) — The term `ineligible to citizenship,' when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended ( 54 Stat. 885; 55 Stat. 844), or under section 4 (a) of the Selective Service Act of 1948, as amended ( 62 Stat. 605; 65 Stat, 76); or under any section of this Act, or any other Act, or under any law amendatory of, or supplementary to, or in substitution for, any of such sections or Acts.
Section 314-A person who, at any time during which the United States has been or shall be at war, deserted or shall desert the military, air, or naval forces of the United States, or who, having been duly enrolled, departed, or shall depart from the jurisdiction of the district in which enrolled, or who, whether or not having been duly enrolled, went or shall go beyond the limits of the United States, with intent to avoid any draft into the military, air, or naval service, lawfully ordered, shall, upon conviction thereof by a court martial or a court of competent jurisdiction, be permanently ineligible to become a citizen of the United States; and such deserters and evaders shall be forever incapable of holding any office of trust or of profit under the United States, or of exercising any rights of citizens thereof.
Recently the Board held in a similar case, that:
Appellant, now an alien, is excludable because he is permanently ineligible for naturalization. The fact that there is a remote possibility of his expatriation becoming a nullity at sometime in the future does not affect his status quo as of the time he seeks to enter. The bar to appellant regaining his citizenship may not be overcome solely by affirmative action on his part. His eligibility for repatriation depends upon circumstances over which he has no control. Now he is of a class described by the statute as permanently debarred from naturalization ( Matter of D---- E----, A-8945453, Int. Dec. No. 720 (B.I.A., 1955)).
Hence, for the same reasons, this appellant is also ineligible to citizenship and should be excluded. The appeal is accordingly dismissed.
Order: It is ordered that the appeal in this case be and the same is hereby dismissed.
APPENDIX
With respect to Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W. 2d 554 (1953), it was noted in the motion that there was admittedly no formal declaration of war in connection with the Korean conflict, but that the many congressional enactments served to recognize the existence of a state of war and constituted a ratification of the President's action in sending troops to assist the United Nations request. The Meadows case involved five life insurance policies with accidental death benefit provisions totaling $5,000, which were "void if the insured shall be in military, naval, or allied service in time of war at the date of the accident." On October 23, 1951, the insured was a Lieutenant Colonel in the U.S. Army Engineer Corps, traveling under orders to Fairbanks, Alaska, as a passenger in a U.S. Army place, which crashed and burned enroute.
The District Court found for the beneficiary-wife, with the Court of Civil Appeals affirming ( 256 S.W. 2d 674). The Texas Supreme Court reversed this determination. This last Court was persuaded by a Texas case, among others, to the effect that a war by the United States Government can occur upon indirect recognition of its existence, as well as through direct declaration by Congress. Since we are not compelled to adopt this pseudo-practical view, we are free to espouse the constitutional view that a "war" required a congressional declaration.
In Langlas v. Iowa Life Inc. Co., 63 N.W. 2d 885 (Iowa, 1954), the Court attempted to delve into the so-called realistic aspects of the Korean conflict in its relation to the meaning of the word "war." The insured's two life insurance policies contained a double indemnity clause providing for additional payment if death resulted from accidental means, unless death arose directly or indirectly from "military or naval service in time of war." The insured was killed on March 25, 1952, while a member of the United States Marine Corps during active combat duty with the 1st Marine Division in Korea.
The Court, deciding in favor of the insurer, clearly revealed that it favored the insurance company's contentions and inclination in seeking to alleviate risks from military service life insurance contracts. The Court adopted the dissenting view in the Beley case and shrugged off the insured's view on the theory that it is unrealistic, since the United States armed services suffered a large number of casualties in assisting United Nations forces and the South Korean Army.
In Weissman v. Metropolitan Life Ins. Co., 112 F. Supp. 420 (S.D. Calif., 1953), the insurance policy in question contained an exception to the accidental benefit clause that no accidental death payment should be made if the insured died while "in the military, naval, or air force of any country at war." The insured, a serviceman, was killed on August 31, 1951, by enemy small arms fire while attacking enemy-held positions in Korea. In finding for the insurer, the Court was swayed mainly by the sympathetic and emotional aspects of the Korean conflict and hence determined that it was a "war."