CASTLE, Circuit Judge.
Itzhak Aronovici, petitioner-appellee, filed a petition for naturalization in the District Court seeking the benefit of the special naturalization privilege granted by Section 328 of the Immigration and Nationality Act, 8 U.S.C.A. § 1439. The Examiner found that petitioner failed to establish three years of honorable service in the armed forces of the United States and recommended that the petition be denied. The District Court overruled the Examiner's objections, granted the petition for naturalization and petitioner took the oath of allegiance to the United States. The Government appeals.
The sole contested issue presented by the Government's appeal is whether training duty in the United States Army Reserve satisfies the requirement of 8 U.S.C.A. § 1439(a) that an alien petitioning for naturalization thereunder shall have "served honorably at any time in the armed forces of the United States for a period or periods aggregating three years * * *".
Petitioner is a single male native of Romania, thirty years of age. He entered the United States in January, 1955 as a visitor from Israel. In October, 1955 his status was changed to that of a non-immigrant student and while in that status he was drafted into the United States Army on February 2, 1956. He served overseas from July 17, 1956 to January 7, 1958 and was honorably released from active military service on January 13, 1958, as a Specialist Third Class. On August 27, 1958, Private Law 85-706, 72 Stat. A185, granted petitioner permanent residence in the United States. Except during his twenty-three months of active military service, petitioner has resided in Chicago since 1955.
When released from active duty petitioner was transferred to the United States Army Reserve and he must remain in that status until February, 1962. He is required to attend weekly drills of two and one-half to three hours and to serve one nine-hour day each month. He is subject to two weeks of annual active duty training. Petitioner's Reserve Company Commander, in a communication addressed to the Bureau of Immigration, advised that a review of petitioner's personnel file "shows an outstanding record of duty and superior performance during his active duty with the United States Army, according to letters of commendation from previous superiors" and that petitioner "has shown personal devotion to duty and character throughout his army career and receives our unqualified recommendation for citizenship based on performance with our unit and his record of past performance with other units".
Petitioner served in the armed forces on active duty for twenty-three months and at the time he filed his petition had served two years of the four year period he is required to serve in the United States Army Reserve. No question is raised as to the honorable character of the petitioner's service, his good moral character, attachment to the principles of the Constitution of the United States, or favorable disposition toward the good order and happiness of the United States — all four of which elements must be proved as additional prerequisites to naturalization under § 1439. The Government contends the derivation of § 1439 indicates that "active duty" service is required thereunder and its provision (§ 1439(e)) that the existence of the four elements referred to above be proved by military records, in so far as service
We have carefully considered the arguments advanced by the Government in support of its theory that the derivation of § 1439 and its evidentiary requirements as related to service periods require that "served" be construed as active duty service. In our opinion these arguments are inconclusive. Moreover, they overlook the fact that the language of the prior sections was addressed to the organizational structure of the armed forces as it then existed.
Under current law and regulations petitioner's United States Army Reserve service equates "active duty" service for the purpose of fulfilling his total six year military service obligation. We find no persuasive reason which suggests that the Congress did not intend such Reserve service to qualify for the purpose of satisfying the requirement of § 1439. The suggestion that United States Army Reserve service does not afford such opportunity for close observation and subjection to strict discipline as would qualify the military records of such service as "equal to if not superior [in evidentiary value] to the usual testimony of friendly witnesses"
The arguments advanced by the Government are somewhat different from the contentions considered in United States v. Rosner, 1 Cir., 249 F.2d 49, in which the identical issue here involved was decided adversely to the Government. We are in agreement with the view expressed and conclusion reached in Rosner. The differences between § 1439 and those sections which expressly require "active" service were there pointed out (pages 51-52) as follows:
We do not find the additional arguments here advanced by the Government a sufficient basis for reaching a result different from that reached in Rosner. The judgment order of the District Court is affirmed.