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2. Telegram, Department of State, to U.S. Consulate in Fukuoka, Japan, regarding awareness of citizenship of Japanese-American (July 3, 1991)


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I. SUMMARY:

DEPT HAS REVIEWED CAREFULLY THE FACTS PRESENTED IN SUBJECT CASE AND CONCURS IN CONOFF'S OPINION THAT A FINDING OF NON-LOSS OF U.S. NATIONALITY SHOULD BE MADE. DEPT'S CONCLUSION IS BASED ON THE CREDIBLE STATEMENTS BY

[ SUBJECT] REGARDING VOLUNTARINESS AND INTENT. END SUMMARY

2. BACKGROUND:

[SUBJECT] ENTERED THE JAPANESE ARMY ON FEBRUARY 1 1942 AND SERVED THEREIN UNTIL JUNE 11, 1946, THEREBY COMMITTING A POTENTIALLY EXPATRIATING ACT UNDER SECTION 401(C) NA [SUBJECT] CLAIMS THAT HIS SERVICE IN A FOREIGN MILITARY AGAINST THE UNITED STATES IN TIME OF WAR WAS NOT VOLUNTARY AND WAS NOT PERFORMED WITH THE INTENTION OF RELINOUISNING U.S. NATIONALITY, MOREOVER, [SUBJECTt] CLAIMS THAT HE WAS NOT AWARE OF HIS CLAIM TO U.S. CITIZENSHIP UNTIL HE WAS INTERVIEWED BY POST IN 1985 IN CONNECTION WITH A VISA APPLICATION.

SUBJECT'S MILITARY-RECORD REFLECTS THE FOLLOWING:

2/1/42 - CONSCRIPTED INTO SERVICE IN THE JAPANESE MILITARY ON 2/1/42 IN THE MEDICAL CORPS AS A PRIVATE SECOND CLASS.

8/1/42 PROMOTED TO PRIVATE FIRST CLASS MEDICAL CORPS

12/1/43 PROMOTED PRIVATE SUPERIOR CLASS, MEDICAL CORPS

2/20/44 PROMOTED LANCE CORPORAL MEDICAL CORPS

11/21/43 ENTERED NORTH CHINA MEDICAL CORPS NONCOMMISSIONED OFFICER'S CANDIDATE

12/1/44 PROMOTED CORPORAL MEDICAL CORPS

8/31/44 TERMINATED EDUCATION, RETURNED TO ORIGINAL REGIMENT.

12/1/45 PROMOTED SERGEANT, MEDICAL CORPS

3. NATURE OF MILITARY SERVICE PERFORMED:

SECTION 401(C) NA DOES NOT DIFFERENTIATE BETWEEN COMBAT AND HON-COMBAT SERVICE, OR SERVICE IN ACTION DIRECTED AGAINST U.S. TROOPS SPECIFICALLY, AS OPPOSED TO SERVICE ACTION DIRECTED AGAINST U.S. ALLIES OR NON-COMBATANTS. MOREOVER, SECTION 401 (C) NA DOES NOT PROVIDE A DIFFERENT STANDARD FOR OFFICERS OR ENLISTED MEN. ANY SERVICE IN A FOREIGN MILITARY OM BEHALF OF A GOVERNMENT AT WAR WITH THE UNITED STATES IS PART OF THE GENERAL WAR EFFORT, AND AS SUCH, SUBJECT TO SECTION 401(C) NA. THIS BEING SAID IN ANALYZING THE ISSUES OF INTENT AND VOLUNTARINESS, THE SPECIFIC ACTIONS OF THE INDIVIDUAL ARE OF PARTICULAR SIGNIFICANCE. UNFORTUNATELY, JAPANESE MILITARY RECORDS PROVIDED IN THESE CASES ARE EITHER INCOMPLETE, SIMPLISTIC OR SANITIZED, AND CONTEMPORANEOUS EVIDENCE OF INTENT IN THE FORM OF LETTERS, DIARIES, OR INTERVIEWS WITH U.S. OFFICIALS IMMEDIATELY BEFORE OR AFTER WORLD WAR II ARE GENERALLY UNAVAILABLE.FOR THIS REASON, THE MORE INFORMATION THE APPLICANT IS ABLE TO PRESENT TO THE

DEPARTMENT ABOUT THE MILITARY SERVICE, INCLUDING LOCATION (S) AND SPECIFIC DUTIES, AND THE PERSON'S ATTITUDES REGARDING THE SERVICE BOTH BEFORE AND IMMEDIATELY AFTER THE WAR THE EASIER IT IS TO COME TO A CONCLUSION REGARDING LOSS OR NON-LOSS OF U.S. NATIONALITY.

4. AWARENESS OF U.S. CITIZENSHIP STATUS/CHOICE OF ALLEGIANCE:

ONE ISSUE RAISED BY [SUBJECT] WHICH IS CENTRAL TO THE DEVELOPMENT OF THIS CASE CONCERNS SUBJECT'S KNOWLEDGE OF HIS U.S. CITIZENSHIP STATUS AT THE TIME HE ENTERED INTO FOREIGN MILITARY SERVICE AGAINST THE UNITED STATES IN TIME OF WAR. WHAT STANDARD IS APPLIED TO A DUAL NATIONAL APPLICANT BORN IN THE UNITED STATES TO ALIEN PARENTS WHO TOOK THE APPLICANT BACK TO THE COUNTRY OF THEIR ORIGIN WHEN THE APPLICANT WAS A YOUNG CHILD? DOES THIS STANDARD CHANGE IF THE APPLICANT RELOCATED IN THE FOREIGN COUNTRY AT AN OLDER AGE FOR THE PURPOSE OF PARTICIPATING IN THE WAR EFFORT?

IT IS NOT UNUSUAL IN A CULTURE SUCH AS JAPAN IN THE 1930SAND 1940S FOR AN INDIVIDUAL TO ASSUME THAT CITIZENSHIP COULD NOT BE ACQUIRED MERELY BY VIRTUE OF JUS SOLI. JAPANESE CITIZENSHIP IS ACQUIRED BY JUS SANGUINUS, AND UNTIL FAIRLY RECENTLY ONLY THROUGH THE FATHER. DEPT DOES NOT FIND IT ODD THAT [SUBJECT] CLAIMS THAT HE WAS NOT AWARE OF HIS POSSIBLE CLAIM TO U.S. CITIZENSHIP UNTIL HE VISITED THE AMERICAN CONSULATE GENERAL IN FUKUOKA IN 1985. SUCH AN ASSUMPTION ON HIS PART IS FAIRLY REASONABLE. [SUBJECT] LEFT THE UNITED STATES IN THE COMPANY OF HIS PARENTS AT THE AGE OF NINE AND HAS LIVED IN JAPAN EVER SINCE. HE HAS NEVER BEEN BACK TO THE UNITED STATES. HE STATES THAT HE HAS ALWAYS KNOWN THAT HE WAS BORN IN HAWAII, BUT WAS NOT AWARE THAT HE ACQUIRED U.S. CITIZENSHIP. PERHAPS HE SHOULD NAVE INQUIRED AT THE AMERICAN EMBASSY AFTER WORLD WAR II, BUT HE DID NOT. DO THE RECOLLECTIONS OF A NINE YEAR OLD CHILD CONSTITUTE THE AGE OF REASON WITH REGARD TO CITIZENSHIP AND ALLEGIANCE? IS THE RESPONSE OF A TWENTY ONE YEAR OLD MAN TO CONSCRIPTION IN THE MILITARY SERVICE OF THE COUNTRY OF HIS OTHER (AND FOR ALL WE MAY KNOW ONLY) NATIONALITY A CONSCIOUS CHOICE OF ALLEGIANCE,? THE DEPARTMENT BELIEVES THAI THE ANSWERS TO THESE QUESTIONS DIFFER DEPENDING ON THE FACTS OF THE INDIVIDUAL CASE.

5. VOLUNTARINESS.

WITH REGARD TO [SUBJECT'S] CLAIM OF INVOLUNTARINESS THE DEPARTMENT CITES THE STATUTORY PRESUMPTION OF SECTION 349 (C) WHICH CREATES A REBUTTABLE PRESUMPTION THAT THE POTENTIALLY EXPATRIATING ACT WAS PERFORMED VOLUNTARILY. AS EVIDENCE OF THE INVOLUNTARINESS OF HIS ACTIONS, THE SUBJECT ALLEGES THAT INASMUCH AS HE WAS CONSCRIPTED INTO SERVICE, HIS MILITARY SERVICE WAS NOT VOLUNTARY. AS POST IS AWARE THE DEPARTMENT DOES NOT CONSIDER THAT A PERSON WHO WAS CONSCRIPTED (AS OPPOSED T0 ONE WHO ENLISTED IN THE MILITARY) MUST BE HELD AS A MATTER OF LAW TO HAVE SERVED INVOLUNTARILY. ONE CAN ENTER THE :MILITARY BY MEANS OF CONSCRIPTION BUT NONETHELESS HAVE BEEN WILLING EVEN EAGER TO SERVE IN THE MILITARY.ON THE OTHER HAND, ONE WHO HAS BEEN CONSCRIPTED IS IN A FAR BETTER POSITION TO ASSERT THAT SUCH SERVICE WAS INVOLUNTARY, [SUBJECT'S] STATEMENTS REGARDING TREATMENT OF CONSCRIPTEES BY OFFICERS AND THE CIRCUMSTANCES UNDER WHICH HE FOUND HIMSELF ON ACTIVE DUTY ARE ENLIGHTENING. SHOULD AN AMERICAN CITIZEN CONSCRIPTED INTO FOREIGN MILITARY SERVICE IN TIME OF WAR WITH THE UNITED STATES BE EXPECTED TO REFUSE MILITARY SERVICE AND FACE THE POSSIBLE CONSEQUENCES OF SUCH ACTION? IN [SUBJECT]'S CASE THE QUESTION OF VOLUNTARINESS IS COLORED BY THE FACT THAT HE WAS PROMOTED FOUR TIMES, LEAVING SERVICE WITH THE RANK OF SERGEANT. MR� [SUBJECT] CLAIMS THAT THIS WAS NOT SO MUCH THE RESULT OF WORKING HARD OR EHTHIJSIASM FOR THE WORK, BUT A WAY OF AVOIDING CORPORAL PUNISHMENT WHICH HE DESCRIBES AS A ROUTINE PRACTICE WITHOUT JUST CAUSE.

6. INTENT:

[SUBJECT] CLAIMS THAT HE DID HOT SERVE IN THE JAPANESE MILITARY WITH THE INTENTION OF RELINQUISHING U.S. NATIONALITY. SERVICE AGAINST THE UNITED STATES IN A TIME OF WAR SUGGESTS THAT THE SUBJECT'S TRUE ALLEGIANCE WAS TO JAPAN, NOT TO THE UNITED STATES. THIS IS FURTHER SUBSTANTIATED BY THE FACT THAT [SUBJECT] WAS PROMOTED FOUR TIMES DURING HIS MILITARY SERVICE. HOWEVER, AT ISSUE IS WHETHER [SUBJECT] COULD INTEND TO RELINQUISH SOMETHING WHICH HE CLAIMS HE DID NOT KNOW HE POSSESSED, I.E., U.S. CITIZENSHIP. AGAIN, [SUBJECT'S] DESCRIPTION OF HIS ACTIONS DURING THE WAR INCLUDING HIS ATTEMPTS TO PROVIDE MEDICAL SERVICE TO CHINESE NATIONALS WHO ARRIVED AT THE FIELD HOSPITALS WHERE HE SERVED HAVE BEEN NOTED.

7. ADVISORY OPINION:

[SUBJECT] WAS CONSCRIPTED AND APPEARS TO HAVE SPENT MOST OF HIS MILITARY CAREER IN THE MEDICAL CORPS. HE WAS PROMOTED FOUR TIMES DURING HIS PERIOD OF SERVICE AND WAS DISCHARGED WITH THE RANK OF SERGEANT. HE SERVED IN NORTHERN CHINA AND FRENCH INDOCHINA. DEPT VIEWS THE EFFORT AND CONDUCT INVOLVED AND GENERALLY REQUIRED TO OBTAIN REGULAR PROMOTIONS AS INCONSISTENT WITH THE CONCEPT OF INVOLUNTARY SERVICE. DEPT CANNOT CONCUR WITH POST'S CONCLUSION THAT [SUBJECT]'S SERVICES IN THE JAPANESE ARMY WERE INVOLUNTARY OR AGAINST HIS WILL. HOWEVER WITH REGARD TO INTENT, [SUBJECT]'S ENLIGHTENING AND UNUSUALLY FRANK REMARKS REGARDING HIS EXPERIENCE OF THE REALITIES OF SERVICE IN THE JAPANESE MILITARY IN THE TIME HAVE HELPED TO SHED LIGHT ON HIS PARTICULAR CIRCUMSTANCES AND OPTIONS AVAILABLE AT THE TIME. IS IT REASONABLE TO HOLD THAT ANY AMERICAN CITIZEN WHO SERVED IN A FOREIGN MILITARY IN WORLD WAR II THEREBY AUTOMATICALLY LOST U.S. CITIZENSHIP, TO DATE, THE DEPARTMENT HAS NOT AUTOMATICALLY FOUND LOSS IN THESE CASES, BUT RATHER, APPLIED THE STANDARDS OF AFFROYIM, TERAZUS, RICHARDS AND MENETZKY IN ANALYZING THE ISSUES OF VOLUNTARINESS AND INTENT. THIS IS, OF COURSE MORE DIFFICULT GIVEN THE PASSAGE OF TIME.

 

[SUBJECT'S] ACTIONS ARE POTENTIALLY EXPATRIATING. AND IN DEPARTMENT'S OPINION WERE PERFORMED VOLUNTARILY..HIS ACCOUNT OF HIS EXPERIENCES AS A CHILD RETURNING TO JAPAN WITH HIS PARENTS, HIS CONSCRIPTION, EARLY TRAINING TREATMENT BY SUPERIOR OFFICERS, SPECIFIC SERVICES PERFORMED DURING THE WAR, AND THE EXPERIENCES OF HIS REGIMENT ON THE MARCH FROM NORTHERN CHINA TO FRENCH INDOCHINA ARE RICHLY PERSUASIVE OF HIS INTENT, NOT TO RELINQUISH U.S. CITIZENSHIP, BUT MERELY TO SURVIVE THE WAR. GIVEN [SUBJECT'S] LACK OF SPECIFIC KNOWLEDGE OF HIS U.S. CITIZENSHIP STATUS (HE WAS NEVER ISSUED A U.S. PASSPORT). HIS MILITARY SERVICE WHILE SATISFACTORY FROM THE PERSPECTIVE OF HIS SUPERIORS DOES NOT REFLECT AN INTENTION TO RELINQUISH U.S. NATIONALITY. DEPT DOES NOT BELIEVE IT CAN SUSTAIN THE BURDEN OF PROOF THAT SUBJECT COMMITTED THE POTENTIALLY EXPATRIATING ACT WITH THE INTENTION OF RELINQUISHING U.S. NATIONALITY. REGISTRATION APPLICATION APPROVED. BAKER

UNCLASSIFIED

 

 

 



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