Interim Decifion #2449 

MATTER OF PIOQUINTO 

In Exclusion Proceedings 

A-20542417 

Decided by Board November 19, 1975 

(1) An individual placed on a Temporary Disability Retired List (TDRL) by the United 

States Navy is, for the purposes of the Immigration and Nationality Act, a member of 

the Armed Forces. 

(2) Where an dim, subsequent to enlistment in the United States Navy in the Philippines, was placed on a Temporary Disability Retired List (TDRL); he thereafter 

arrived in the United States under official orders of the U.S. Navy, and was paroled into 

this country, he is not, upon revocation of his parole, amendable to exclusion proceedings since under 8 CFR 235.1(c), an alien member of the Armed Forces coming to the 

United States -order official orders is not subject to the exclusion provisions of the act. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—no 

visa. 

ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire 

Continental Building, Suite 1016 

408 South Spring Street 

Los Angeles, California 90013 

This is an appeal from a decision of an immigration judge denying the 

applicant's motion to reopen his exclusion proceedings. The appeal will 

be sustained. 

The applicant is a male alien who is a native and citizen of the 

Philippines. l In 1968 he enlisted in the United States Navy in the 

Philippines. On January 24, 1972, the United States Navy placed the 

applicant on a Temporary Disability Retired List (TDRL). He was 

given a 100% disability rating. On February 22, 1974, the applicant 

arrived at Travis Air Force Base, California apparently on a chartered 

military flight. He did not then have in his possession a visa to enter the 

United States. However, he did have orders from the United States 

Navy directing that he appear in San Diego, California, before a physical evaluation board. 

The Immigration and Naturalization Service thereafter paroled the 

applicant into the United States pursuant to section 212(d)(5) of the Act. 

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Interim Decision #2449 

The applicant apparently appeared before the physical evaluation 

board. His parole was thereafter revoked and he was placed in exclusion 

proceedings. On December 18, 1974, the immigration judge found the 

applicant inadmissible to the United States under section 212(a)(20) of 

the Act as an immigrant without an immigrant visa. 

Section 284 of the Act provides: 

Nothing in this title shall be construed so as to limit, restrict, deny, or affect the coining 

into or departure from the United States of an alien member of the Armed Forces of the 

United States who is in the uniform of, or who bears documents identifying him as a ' 

member of, such Armed Forces, and who is coming to or departing from the United 

States under official orders or permit of such Armed Forces: Provided, That nothing 

contained in this section shall be construed to give to or confer upon any such alien any 

other privileges, rights, benefits, exemptions, or Immunities under this Act, which ate 

not otherwise specifically granted by this Act. 

Although the applicant does not appear to have been serving on active 

duty in the Navy, he was traveling under official orders. Copies of these 

orders are in the record of proceedings. At issue is whether or not the 

applicant is to be considered a "member" of the Armed Forces for 

purposes of section 284 of the Act. 

The Immigration and Nationality Act does not define "member of the 

Armed Forces." "Member of the naval service" and "enlisted member" 

are defined in 10 U.S.C. 5001(a)(3) and 5001(a)(4), respectively. Those 

definitions do not necessarily include or exclude from their definitions 

naval personnel who are on the temporary disability retired list, Department of Navy regulations, which relate to disability, define 

"member" to include a "retired member of the naval service." 32 CFR 

725.220. 

Furthermore a review of the statutory provisions relating to temporary disability retired lists convinces us that the applicant is a member 

of the Armed Forces as that phrase is used in section 284 of the Act. 10 

U.S.C. 1202 pertains to a member of the Armed Forces who has served 

on active duty for more than 30 days, and who would be elegible for 

retirement "but for the fact that his disability is not determined to be of 

a permanent nature." Under this section, 

the Secretary [of the appropriate armed service] shall, if he also determines that 

accepted medical practice indicates that disability may be of a permanent nature, plare 

the member's name on the temporary disability retired list with retired pay _ 

10 U.S.C. 1203 makes clear that there is a distinction to be drawn 

between those placed on TDRL and those who have been separated 

from the armed service. 

Individuals who have been placed upon TDRL may be required at 

least once every eighteen months to submit to examination. 10 U.S. C. 

1210. As a result of these examinations, an individual on TDRL may be 

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Interim Decision #2449 

retired, 1separated 2 or returned to active duty. 3 Additionally, 10 

U.S. C.1210 (g) provides: 

Any member of the Armed Forces whose name is on the temporary disability retired 

list, and who i s required to travel to submit to a physical examination under subsection 

(a), is entitled to the travel and transportation allowances authorized for members in his 

retired grade traveling in connection with temporary duty while on active duty. (Emphasis added.) 

It thus appears that Congress viewed individuals on TDRL as members 

of the Armed Forces. Further, Article 2(4) of the Uniform Code of 

Military Justice 10 U.S.C. 802(4), provides that retired members of a 

regular component of the Armed Forces who are entitled to pay are 

subject to the code of military justice. This category appears to describe 

individuals on TDRL, who, as noted above, receive retired pay. 

We are satisfied from all these provisions that an individual on a 

temporary disability retired list is, for purposes of the Immigration and 

Nationality Act, a member of the Armed Forces. We note that some of 

the official forins concerning the applicant refer to him as having been 

discharged, and that he himself, in a signed statement, stated he was 

"discharged". In view of the statutory provisions we have considered, 

the documents, which also indicate the applicant was placed on the 

temporary disability retired list, appear to contain a clerical error with 

respect to the use of the word "discharge". The applicant's own statement appears to have used the word discharged in its colloquial sense 

and to have disregarded the niceties between removal from active duty 

and complete separation from the Navy. 

Under 8 CFR 285.1(c), an alien member of the Armed Forces coining 

to the United States under official orders is not subject to the exclusion 

provisions of the Act. Accordingly, these proceedings must be terminated and the respondent's appeal sustained. 

It is possible that as a result of his appearing before the physical 

evaluation 'board, the applicant has been separated from the Navy. 

There is some indication in the record that this may have occurred. If so, 

the applicant may now be deportable. The proviso of section 284 of the 

Act prevents an alien, such as the applicant, from obtaining special 

immigration benefits. However, if it is determined that the applicant is 

in the United States in violation of law, he should be given an opportu10 U.S.C. 1210 (c), 1201 and 1204. 

210 U.S.C. 1210(e), 10 U.S.C. 1203, 1206. 

a 10 U.S.C. 1210(f), 10 U.S.C. 1211. 

4 We note that. Congress has provided for full and fair hearing on the medical disabilities 

of servicemen. See 10 U.S.C. 1214. The United States Navy conducts physical evaluation 

boards at only tluee locations, all of which ate within the United States. United States 

Navy, Disability Evaluation Manual, NAVSD P-1980 at 5=1 (October, 1970). 

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pity to depart voluntarily before the institution of deportation proceedings. Matter of Loo, 13 I. & N. Dec. 182 (BIA 1969). 

ORDER: The appeal is sustained. 

Further order: The exclusion proceedings are terminated. 

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