1940, as amended, in accordance with the act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States.' The petitioner objected to the form because of this language and expressed his preference for a revised from which he had seen but which was apparently not available the office of the Board.
A copy of the revised form, for which the petitioner expressed his preference, is in evidence, Exhibit G-3. The language quoted in the preceding paragraph is omitted in this form and there is substituted therefor the following: 'I hereby apply for relief from liability for training and service in the land or naval forces of the United States.' There is contained in a footnote, however, this statement: 'Section 3(a) of the Selective Training and Service Act of 1940, as amended, provides in part 'that any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States." It appears from a letter dated May 27, 1943, addressed to the Board by the petitioner, that he remitted with the letter a copy of the revised form; it should be noted, however, that this form was not executed but was submitted to the Board as a sample of the form preferred by the petitioner.
The petitioner ultimately executed and filed DSS Form 301, supra, on June 1, 1943, ten days after his initial appearance before the Board. He was thereupon granted exemption from military service and was reclassified in Class IV-C. It clearly appears from the evidence, the records of the Board and the transcript of testimony given before the Naturalization Examiner, that he resisted the execution of the said form and expressed his preference for the revised form until he was finally persuaded to execute and file the former. The petitioner apparently entertained the erroneous notion that if he executed the revised form he would thereby preserve his inchoate right to apply for citizenship notwithstanding his application for exemption from military service. We believe that he was somewhat confused as to his rights under the law.
The petitioner did not testify at this hearing but was content to rely on the testimony given before the Naturalization Examiner, a transcript of which has been market in evidence Exhibit G-2. He testified before the Examiner that he discussed his problem with the representatives of the Board and thereafter executed DSS Form 301 only after their assurance that the form 'made no difference.' He did not recall with any degree of certainty the substance of the advice given him but testified that he was led to believe that he might execute the said form and at the same time preserve his right to later apply for citizenship. This was consistent with his belief based on information given to him by neutral aliens of Swiss nationality. We are of the opinion that he may have been justified in relying on the representations made to him by the Board, but he was not justified on relying on information given to him by persons not connected with the Government.
The necessary limits of this opinion will not permit a quotation of all questions and answers appearing in the transcript, but we believe the following are significant:
'Q. With regard to any of these forms, irrespective of what they may have been, would you have signed any such forms, and specifically the DSS 301 form, if you had believed it might deprive you of the right to receive citizenship of the United States? A. I would definitely not have done so, no.
'Q. Did you then believe your right to naturalization was fully protected? A. I was quite convinced of that.' This testimony, considered in the light of the other testimony in the case, would clearly indicate that the petitioner, although intent upon claiming exemption from military service, was equally intent upon preserving his right to later apply for citizenship. The assurances of the Board apparently led him to be lieve that this could be done.
The petitioner relies on Moser v. United States, 341 U.S. 41, 71 S. Ct. 553, 556, 95 L. Ed. 729, and urges that the situation here is comparable to the situation presented in the cited case. There are factual differences which we believe do not change the total picture. The petitioner in the cited case: first, 'sought information and guidance from the highest authority to which he could turn, and was advised to sign Revised Form 301;' and second, the Revised Form contained no express waiver of the inchoate right to apply for citizenship. The petitioner in the case sub judice: first presented his problem to the Board and sought its advice, and in this we believe he was justified; and second, signed DSS Form 301, not revised, upon the assurance that the form 'made no difference.' The failure of the present petitioner to consult the 'highest authority' is not determinative because there is no suggestion in the opinion of the Court in the Moser case, supra, that such action is required. The second distinguishing fact becomes unimportant because the Immigration and Naturalization Service concedes that this case should be treated as if the petitioner had signed the Revised Form.
The petitioner in the present case, as did the petitioner in the Moser case, supra, asserted a right to exemption from military service without debarment from citizenship. He continued to assert this right and finally yielded to the persuasion of the Board only after its assurance that the form 'made no difference.' The petitioner was apparently led to be lieve that he could execute Form DSS 301, notwithstanding the waiver therein contained, without thereby forfeiting his future right to apply for citizenship. He testified that he would not have claimed exemption if he had thought otherwise.
We are of the opinion that despite the minor differences in the facts of this case and the facts of the Moser case, supra, that the situations are comparable. The Court in the Moser case, supra, after a review of the facts, held at page 47 of 341 U.S., at page 556 of 71 S. Ct.: '* * * because of the misleading circumstances of this case, he (the petitioner) never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all the circumstances of the case, we thing that to bar petitioner, nothing less than an intelligent waiver is required by elementary fairness.' We are of the opinion that this principle must be applied here. The circumstances surrounding the present petitioner's application for exemption from military service were misleading and he was thereby denied the opportunity of making the 'intelligent waiver' which the Court in the Moser case, supra, held 'is required by elementary fairness.'
The petition for naturalization should be granted for the reasons hereinabove stated.