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IN RE NIELSEN

April 23, 1945

In re NIELSEN


The opinion of the court was delivered by: MCGUIRE

Petitioner religiously is a Seventh-day Adventist. He said he is willing to take the oath of allegiance, but would qualify that part of the oath which would require him to support and defend the Constitution of the United States against all enemies foreign and domestic as he is as a matter of religious scruples opposed to the taking of human life. *fn1"

If such were all the facts, then obviously upon the authority of United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889; United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570, 75 L. Ed. 1302; United States v. Bland, 283 U.S. 636, 51 S. Ct. 569, 75 L. Ed. 1319; Shelley v. United States 74 App.D.C. 181, 120 F.2d 734, the petition should be denied.

But there is an additional fact of importance.

 The applicant was inducted into the armed forces and served as a member of such from October 26, 1943 to December 1st of that year when he was honorably discharged for reasons that are not pertinent.

 While so serving he took the soldier's oath, *fn2" wore the uniform and performed such military duties as were required in a medical training center to which he was attached, which did not include instruction in the use of combat weapons, nor was he required to submit himself to such instruction inasmuch as he stated upon induction that he was a Seventh-day Adventist.

 He now claims, however, that by reason of such service and because of the fact he took the soldier's oath he is entitled to citizenship under the provisions of 8 U.S.C.A. §§ 1001-1005 inclusive, and the authority of In re Kinloch, D.C., 53 F.Supp. 521, and the Department of Justice so recommends.

 I am unable to concur. True he is qualified for citizenship provided he complies with certain essential prerequisites -- one of which is the taking of the prescribed oath of allegiance. His military service in no way relieves him of the obligation of compliance.

 The statute, supra, does not make naturalization of persons serving in the armed forces of the United States mandatory, it is still discretionary with the court.

 Although certain hitherto indispensable conditions are waived.

 And thirdly its provisions ' * * * Shall not apply to (1) * * * or (2) any conscientious objector who performed no military duty whatever or refused to wear the uniform' ( § 1004) -- all of the other requirements are specifically retained, *fn3" among them the oath of allegiance infra.

 Nowhere is it stated that the soldier's oath shall take the place of the oath of allegiance required of applicants for citizenship -- which is mandatory (Title 8 U.S.C.A. § 735(a)(b), ' * * * that I will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic * * * and that I take this obligation freely without any mental reservation * * * '

 I can find no warrant in law permitting the court to permit the taking of this oath with the limitation or qualification desired to be added to it by the applicant.

 True, as referred to previously, he served in the armed forces -- he had no choice -- and upon being inducted he immediately claimed his status as a conscientious objector and under the provisions of that law was given noncombatant service. *fn4"

 He petitions for citizenship which is a privilege and not a right, and then places upon the correlative duty it demands, a qualification and a ...


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