In Re Elken's Petition, 2271-555417.

• Decision Date: 08 May 1958
• Docket Number: No. 2271-555417.,2271-555417.
• Citation: 161 F. Supp. 823
• Parties: In the Matter of the Petition for Naturalization of Ivar ELKEN.
• Court: U.S. District Court — Eastern District of New York

161 F. Supp. 823

In the Matter of the Petition for Naturalization of Ivar ELKEN.

No. 2271-555417.

United States District Court E. D. New York.

May 8, 1958.

O'Donnell & Schwartz, New York City, Edith Lowenstein, New York City, of counsel, for petitioner.

Maxwell M. Stern, U. S. Naturalization Examiner, Immigration and Naturalization Service, Brooklyn, N. Y., in opposition.

RAYFIEL, District Judge.

The petitioner, a native and national of Estonia, who was lawfully admitted to the United States on August 3, 1947, made application for citizenship which was referred by the Immigration and Naturalization Service to a designated Examiner for preliminary examination. He recommended that the petition be denied on the ground that the petitioner was ineligible for citizenship by reason of the provisions of Section 315 of the Immigration and Nationality Act of 1952 (Title 8 U.S.C.A. Sec. 1426) and by Section 4(a) of the Selective Service Act of 1948 (Title 50 U.S.C.A. Appendix, Sec. 454(a)) because he had applied for, and had been granted, relief from military training or service on the ground of alienage.

Thereafter a final hearing was held before me. It disclosed that on October 28, 1952, when the petitioner felt his induction into the Armed Forces was imminent, he applied for voluntary induction. However, on November 4, 1952 he wrote a letter to his Local Draft Board in which he withdrew his application for voluntary induction. He gave as his reason for the withdrawal the fact that at the time of his request for induction he did not know that he was entitled to be classified in Class 4-C under the treaty provisions between the United States and Estonia, as stated in Local Board Memorandum No. 39. The letter of November 4th stated: "By using my Classification 4-C, which I am entitled to have, I will have the opportunity to complete my education in college and then in time of war against communism I will be capable to serve the United States more effectively." The letter then went on to say "Really under the L.B. Memorandum No. 39 and the treaty between the United States and Estonia (Article VI, on Dec. 23, 1925) 44 Stat. 2379 I was not available for service not only on October 28, 1952, but at least since the end of war between the United States and Japan." He attached an excerpt of the treaty, which included Article VI thereof, in his letter.

On the basis of this letter the petitioner's Draft Board notified him that his application for voluntary induction was cancelled, and that he was placed in Class IV-C. Some time in 1953 he heard that persons who applied for exemption from military service on the ground of alienage were barred from citizenship, but he made no inquiry respecting the matter at his Local Board or elsewhere, and continued in Class IV-C until 1956, when, by Executive Order 10659, Selective Service Regulation Section 1622.42c was amended, withdrawing the right of permanent resident aliens to claim exemption under international treaties. On the basis of that change Local Board Memorandum 39 was rescinded, the petitioner was reclassified as 1A on June 5, 1956, and was inducted into the Armed Forces of the United States on July 5, 1956. The petitioner is now serving as a Specialist Third Class, attached to the Headquarters and Headquarters Detachment, Fort Jay, New York.

The petitioner claims that his letter of November 4, 1952 was not a claim for exemption from military service, but, rather, an application for a deferment thereof until he had completed his college education. He further contends that at the time he wrote the letter he did not know the consequences of his application for a classification of 4-C, that he was not warned or advised thereof by his Local Draft Board, and that he signed no form supplied by the Selective Service authorities containing such information.

The Government contends that the letter of November 4, 1952, is clear and unequivocal; that the petitioner wrote it voluntarily, requesting, not deferment, but exemption from service, as evidenced by his application for classification in IV-C, and by his statement that he "was not available for service." It points out, further, that although the letter states "* * * then in time of war against communism I will be capable to serve the United States more effectively," this country was at that very time engaged in war against Communist forces in Korea.

Doubt, if any, as to whether he sought a deferment or an exemption in his letter of November 4th can be best resolved by considering his acts and conduct since writing the letter. He did the research necessary to learn, as he did, that the 1925 Treaty between the United States and Estonia would subject him to the draft only in the event of war between the United States and a third nation. Yet, he prepared the said letter requesting IV-C classification when the United States was at war against Communist forces, and...