The opinion of the court was delivered by: Will, District Judge.
Petitioner filed a petition for Naturalization on September 10,
1965 under Section 329(a) of the Immigration and Nationality Act
of 1952 (8 U.S.C. § 1440 (a)) pursuant to the provisions of the
Act of June 30, 1950 (P.L. 597, 81st Cong. 2d Sess.) entitled "An
Act to Provide for the Enlistment of Aliens in the Regular Army,"
popularly known as the Lodge Act, as amended by Section 402(e)
of the Immigration and Nationality Act of 1952 (66 Stat. 276).
Pursuant to the applicable provisions of the 1952 Act, the
Naturalization Examiner submitted findings of fact and
conclusions of law to this court. The Examiner concluded that the
petitioner had established his eligibility for naturalization and
recommended that the petition be granted.
Petitioner, a 35 year old native and national of Bulgaria,
enlisted in the United States Army under the Lodge Act at
Heidelberg, Germany on September 4, 1956 for a period of five
years. Travelling under military orders, he entered the United
States at the port of New York on September 26, 1956. After
completing eight months of training at Fort Jackson, South
Carolina and Fort Benning, Georgia, he was assigned to Fort Corby
in the Panama Canal Zone. He served in an active duty status in
the Canal Zone until March 4, 1959 when he returned to the United
States for treatment of Buerger's disease. This disease resulted
in severe lameness and rendered him 70% disabled according to
Veterans Administration standards. On June 4, 1959 he was
released from Walter Reed Hospital and placed on the Temporary
Disability Retired List (TDRL). He remained on the TDRL until
August 28, 1964, almost eight years after his original
enlistment, when he was permanently retired and issued an
honorable Certificate of Retirement from the Army.
The Lodge Act authorized the Secretary of the Army within
specified time limits now expired, to accept enlistments or
reenlistments of unmarried male aliens for a period of not less
than five years. Section 4 of the Lodge Act provided that the
provisions of Section 329 of the Immigration and Nationality Act,
in so far as they provide a statutory basis for the
naturalization of aliens who have served in the Armed Forces of
the United States, are applicable to Lodge Act enlistees "who
have completed five or more years of military service, if
honorably discharged therefrom." (emphasis supplied) Section 4
further provided that Lodge Act enlistees who entered the United
States pursuant to military orders and who, after five years of
military service were honorably discharged, if otherwise
qualified for citizenship should "be deemed to have been lawfully
admitted to the United States for permanent residence within the
meaning of such section 329(a)."
Three questions are raised by this petition; first, whether the
standard of "military service" as stated in the Lodge Act is the
applicable standard in cases of petitions for naturalization
brought by Lodge Act enlistees or whether the "active-duty"
standard contained in § 329(a) of the Immigration and
Nationality Act is to be applied; second, assuming application of
the Lodge Act standard, whether a member of the armed forces on
the Temporary Disability Retired List is in "military service,"
and finally, whether an honorable Certificate of Retirement from
the armed forces is the equivalent of an honorable discharge.
This petition raises unusual questions solely because
petitioner, while on active duty in the United States armed
forces, was stricken with Buerger's disease. Had he remained on
active duty for the five year period of his enlistment, we would
not be making a determination of whether the Lodge Act standard,
i.e., "military service" or the § 329(a) standard
of "active-duty status" is applicable, for the record is clear
that, absent any physical disability, petitioner expected to
complete his five years in an "active-duty status."
Interestingly, however, while § 329(a) requires that aliens who
served during World Wars I and II and the Korean War have served
in an "active-duty status," no period of service is prescribed by
that section. § 329(a) merely requires active-duty service plus
separation "under honorable conditions." Thus if § 329(a) were
the sole provision here involved, petitioner would qualify for
naturalization on the basis of his active duty service from the
date of enlistment, September 4, 1956 to the date he was placed
on the TDRL, June 4, 1959, a period of almost three years.
Petitioner, however, is a Lodge Act enlistee, the important
distinction between Lodge Act enlistees and those enlistees
falling within the purview of § 329(a) being that the Lodge Act
was passed to provide for the enlistment of aliens such as the
petitioner who were not in the United States at the time of their
enlistment, whereas § 329(a) is applicable only to aliens
enlisting in the United States or other specified possessions or
to aliens who, subsequent to their enlistment were lawfully
admitted to the United States for permanent residence. As noted
above, the Lodge Act resolved the residence question for members
who enlisted under its provisions by providing that after
completion of five years military service the Lodge Act enlistee
is deemed to have been lawfully admitted for permanent residence.
The instant petition, therefore, could only have been filed under
the Lodge Act since Mr. Todorov enlisted in Germany.
Passage of the Lodge Act by Congress, with knowledge of the
reasons for and the provisions of § 329(a), leads to the
inference that Congress intended the Lodge Act to be
substantively complete and independent in itself, incorporating
by reference § 329(a) of the Immigration and Nationality Act only
in so far as it is the operative section of the immigration laws
providing for naturalization of aliens who served in the armed
forces. The Lodge Act contains the applicable standards for
naturalization of aliens who enlisted under its provisions.
Combining the standards of both the Lodge Act and § 329(a) could
not have been the intention of Congress. If Congress had meant
the words "military service" in the Lodge Act to be analogous to
service in an "active-duty status," it could have inserted that
requirement specifically in the Act. By the inclusion of the term
"military service" in place of the already existing term
"active-duty status" in § 329(a), there is a strong inference
that Congress intended the standard of the Lodge Act to be
different from that of § 329(a). Moreover, this comports with the
additional differences between the two provisions, e.g., the five
year period of service requirement in the Lodge Act and the
absence of any minimum period in § 329(a).
We conclude, therefore, that petitioner is eligible for
naturalization if he has completed five years of military service
and if he was honorably discharged therefrom.
The Secretary of Defense has issued the following policy
statement regarding the TDRL:
E. Temporary Disability Retired List (TDRL)
Placement on the TDRL is clearly not discharge. Personnel
placed on the TDRL continue to be members of the army, are
subject, if they recover, to active duty assignment, and continue
to enjoy certain military benefits until discharged or finally
retired. Under these circumstances we hold that a member of the
armed forces on the TDRL is in "military service."
To decide the remaining question we need only turn to
petitioner's retirement certificate entitled "CERTIFICATE OF
RETIREMENT." It reads that the petitioner "HAVING SERVED
FAITHFULLY AND HONORABLY WAS RETIRED FROM THE UNITED STATES
ARMY * * *." That petitioner was honorably discharged from the
army is self-evident. To conclude otherwise would result in an
unfair penalty to one who served honorably but who, while in
service, had the misfortune of receiving disabling injuries.
Indeed, the above reasoning applies to every aspect of this case.
In neither the Lodge Act, the immigration laws, nor the army
retirement provisions is there evidence which would warrant a
restricted and unfair reading of these laws. We hold that
petitioner has established ...