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In re MARKUN.

(District Court, E. D. Pennsylvania.

May 19, 1916.)

Aliens <©=>65 — Naturalization—Right to Apply — “Discharged.”

Rev. St. § 2166 (Comp. St. 1913, § 4355), declares tliaf any alien of the age of 21 years and upwards, who has enlisted or may enlist in the armies of the United States and has been honorably discharged, shall be admitted to become a citizen upon his petition without any previous declaration of intention. Section 1342, under Articles of War, art. 4 (section 2313), declares that no discharge shall be given to any enlisted man before his term of service is expired, except by order of the President, Secretary of War, the commanding officer of a department, or by sentence of court-martial. Applicant was given a certificate of furlough under Act Aug. 24, 1912, c.. 391, § 2, 37 Stat. 590 (Comp. St. 1913, § 1892), declaring that enlistments in the regular army shall be for seven years, but that any enlisted man at the expiration of three years’ active service may be furloughed and transferred to the Army Reserve in the diseretion'-of the Secretary of War, in which case he shall be on the reserve list. The applicant had served three years with the United States army. Held, that his certificate of furlough was not an honorable discharge, entitling him to apply for citizenship under section 2166.

[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 129; Dec. Dig. @=65.

For other definitions, see Words and Phrases, First and Secohd Series, . Discharge.]

In the matter of the application of Witold Markun for leave to file a petition for naturalization under Rev. St., § 2166 (Comp. St. 1913, § 4355).

Application denied.

THOMPSON, District Judge.

Witold Markun appeared in person in open court on May 17, 1916, and applied for-leave to file a petition for naturalization as an honorably discharged soldier under section 2166, Revised Statutes (Comp. St. 1913, § 4355), and, as proof of honorable discharge presented a certificate from the First Lieut. Cavalry, Commanding Casual Detachment, Recruit Depot, Ft. McDowell, Angel Island, Cal., dated April 15,- 1916, certifying that Witold Markun, having completed three years’ service with the colors, had been furloughed to the Reserve of the Army of the United States and that his service has been honest and faithful.

Section 2166 provided that any alien of the age of 21 years and upward, who has enlisted, or may enlist, in the armies of the United States, and has been, or may be Rereafter, honorably discharged, shall *1019be admitted to become a citizen oí the United States, upon his petition, without any previous declaration oí his intention to become such; that he shall not be required to prove more than one year’s residence within the United States previous to his application, and the court admitting him shall, in addition to proof of residence and good moral character, be satisfied by competent proof of such person’s having been honorably discharged from the service of the United States. Under article 4 of the Articles of War, section 1342, Revised Statutes (Comp. St. 1913, § 2313), it is provided that:

“No discharge shall bo given to any enlisted, man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.”

The certificate presented by the applicant is not a certificate of discharge. It is merely a certificate of furlough, issued under the provisions of Act Aug. 24, 1912, 37 Stat. p. 590, c. 391, § 2 (Comp. St. 1913, § 1892), which provides that on and after November 1, 1912, all enlistments in the Regular Army shall be for the term of seven years, the first four years in the service with the organization of which those enlisting shall form a part, and, except as otherwise provided therein, the last three years on furlough and attached to the Army Reserve thereinafter provided for: Provided, that any enlisted man, at the expiration of three years’ continuous service with such organization, either under a first or any subsequent enlistment, upon his written application, may be furloughed and transferred to the Army Reserve, in the discretion of the Secretary of War, in which event he shall not be entitled to re-enlist in the service until the expiration of his term of seven years; Provided further, that except upon re-enlistment after four years’ service, or as now otherwise provided for by law, no enlisted man shall receive a final discharge until the expiration of his seven-year term of enlistment, including his term of service in the Army Reserve.

Under the provisions of the above act, it is apparent that the applicant has no1 standing to petition for naturalization under section 2166, as he has not been and cannot be discharged until he has served for a total period of seven years, made up of his term with the colors and his time on furlough attached to the Army Reserve. The applicant, having presented for the inspection of the court a declaration of intention dated October 17, 1910, is at liberty to proceed under the general provisions of the naturalization laws, if and when otherwise qualified.

Application for leave to petition under section 2166 is denied.

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