Appeal, No. 3, Jan. T., 1956, from order of Court of Common Pleas of Chester County, Misc. No. 3915, in re Petition for Naturalization for Franz Albert Schulz. Order reversed.
Fred T. Cadmus, III, with him C. Richard Morton and Cadmus & Morton, for appellant.
No argument was made nor brief submitted for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno And Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE:
This appeal is from a denial by the Court of Common Pleas of Chester County of appellant's petition for naturalization. The question presented is whether the appellant applied for an exemption, and was relieved thereby, from service in the armed forces of the United States on the ground that he was an alien. The trial court ruled that he had and, therefore, was ineligible to become a United States Citizen.
Appellant, a German national, has resided continuously in the United States since 1930. On March 2, 1942, appellant was examined by a Selective Service Local Board and, on the basis of War Department instructions excluding all enemy aliens from service, was placed in class 4-C, the class for unacceptable aliens. On August 12, 1942, petitioner furnished information from which an "Alien's Personal History and Statement" form (DSS 304) was completed. Section 41 of this form, allegedly signed by appellant, reads as follows: "41. I do"You are informed that if you are an enemy alien or subject of a country allied with the enemy, you will not ordinarily be acceptable for service in the land or naval
forces of the United States if you indicate in Item 41 above that you object to such service. If you are a citizen or subject of any other country, you may indicate in Items 41 whether you do or do not object to service in the land or naval forces of the United States but such objection may be disregarded. If you are a citizen or subject of a neutral country, and you do not wish to serve in the land or naval forces of the United States, you may apply to your local board for Application by Alien for Relief from Military Service (Form 301) which, when executed by you and filed with the local board, will relieve you from the obligation to serve in the land or naval forces of the United States, but will also debar you from thereafter becoming a citizen of the United States."
On the basis of this statement, appellant's 4-C classification was continued. In 1944, appellant's case was reviewed by the Selective Service Board. It was reported by the Board's interviewer that appellant was unwilling to enter the United Stated Army. No forms were signed by appellant at this time and the 4-C classification was continued. At no time did appellant complete an "Application of Alien for Relief from Training and Service in the Armed Forces". It is doubtful whether or not he would have been permitted to do so had he wished. Cf. Petition of Zumsteg, 122 F.Supp. 670, 672.
In 1953, appellant filed a petition for naturalization. A hearing was held before an examiner who recommended that the petition be denied. The examiner concluded that petitioner was ineligible for citizenship by virtue of Section 315 of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U.S.C.A. 1426, which provides: "(a) Notwithstanding the provisions of section 405 (b) of this Act, any alien who applies or has applied for exemption or discharge from training
or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States. (b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to ...