20 CFR 404.1304(a)(4)
H filed application for disability insurance benefits in November 1960 and it was found that he was under a "disability" within the meaning of section 223 of the Social Security Act beginning in January 1950. H's social security earnings record did not reflect sufficient credits for him to be insured for purposes of becoming entitled to disability insurance benefits. However, H had served in the Polish Armed Forces during World War II and if he could be entitled to wage credits under section 217 of the Social Security Act for such service, he would be insured and entitled to the benefits for which he had applied since he met all other requirements for entitlement to such benefits.
It was established that H had served in the army of the Polish Government-in-exile in London under British Command from September 23, 1941, until his honorable discharge on May 21, 1946. H, who is a native-born citizen of the United States, had resided in the United States continuously since his birth and was domiciled in this country when he joined the Polish armed forces in Canada.
Under section 217, with certain exceptions not pertinent here, a person who served in the active military or naval service of the United States during World War II(i.e., between September 16, 1940, and July 24, 1947, inclusive) is granted wage credits for social security purposes of $160 per month for each month during any part of which he was in such service. Section 217(h)(1) provides that a person who served during World War II in the military or naval service of a country which was on September 16, 1940, at war with a country with which the United States was at war during World War II shall be considered to have served in the active military or naval service of the United States during such service if he: (1) entered such service on or before December 8, 1941; (2) was a citizen of the United States throughout such period of service or lost his United States citizenship solely because of such service; (3) had resided in the United States for a period or periods aggregating 4 years during the 5-year period ending on the day of his entrance into such service; (4) was domiciled in the United States on the day of his entrance into such service; and (5) either (i) was discharged or released from such service under conditions other than dishonorable after active service of 90 days or more or by reason or a disability or injury incurred or aggravated in such service in line of duty, or (ii) died in such service.
H met all requirements listed in (1) through (5), above, as to citizenship, residence, domicile, and entrance into and discharge from the armed forces. The only question remaining is whether his service in the armed forces of the Polish Government-in-exile under British Command constitutes service "in the active military or naval service of a country which was on September 16, 1940, at war with a country with which the United States was at war during World War II" within the meaning of section 217(h)(1).
Poland was invaded by Germany on September 1, 1939. On September 28, Germany and Russia partitioned a defeated Poland. On September 30, a Polish Government-in-exile was established provisionally in Paris, and on June 19, 1940, that Government transferred to London. On July 5, 1945, the United States recognized the successor government to the Polish Government-in-exile. A treaty terminating World War II was never signed between Poland and Germany. H. Doc. No. 541, 78th Cong., 2nd Sess. (1944), "Events leading up to World War II, Chronological History, 1931-1944"; Encyclopedia Britannica (1958), Vol. 18, pp. 150-151; Poland, C. R. Barnett (Survey of World Cultures 1958), pp. 23-26, 166-169. The Department of State Publication 2389, "Status of Countries in Relation to the War, August 12, 1945," compiled by K. E. Crane, lists Poland and Germany as being "at war" on September 1, 1939, and indicates that Poland and Germany, at least after September 1939, were in a "state of surrender relations," but that "the situation is open to different interpretations."
The Department of State has made an official determination that Poland was at war with Germany on September 16, 1940, and that the Polish Government-in-exile in London was the legal government of Poland at that time. The determination of the Department of State on these legal issues is authoritative. Hackworth, Digest of International Law, vol. VI, section 562, page 161.
Further, the legislative reports accompanying the enactment of section 217(h) as part of the Social Security Amendments of 1958, indicate that the purpose of that subsection was to provide social security wage credits "for each month of service performed during World War II by American citizens in the armed forces of certain countries which fought against our enemies in that war." H.R. Rep. No. 2288, 85th Cong., 2d Sess. pp. 10, 23, 24 (1958); Sen. Rep. No. 2388, 85th Cong., 2d Sess., pp. 8, 21 (1958). The Senate Report, at page 21, explains the purpose of section 217(h) as follows:
Congress thus clearly intended to grant American citizens who fought with an allied army in World War II the same wage credits as are granted by section 217 to those who fought in the active military or naval service of the United States during that period. Those American citizens who entered active military service against Germany with the army of the Polish Government-in-exile in London before December 8, 1941, appear to be among those for whose benefit this provision was enacted.
On the basis of the foregoing, it is found that Poland, represented by the Polish Government-in-exile in London, was at war with a World War II enemy of the United States (i.e., Germany) on September 16, 1940. It is held further that H's service in the army of the Polish Government-in-exile in London under British Command from September 23, 1941, until May 21, 1946, constituted "service in the active military or naval service of a country which was on September 16, 1940, at war with a country with which the United States was at war during World War II," that H may be granted wage credits of $160 per month for the months of September 1941 through May 1946 under the provisions of section 217(h)(1), that he is insured for the purpose of becoming entitled to disability insurance benefits and, consequently, that he is entitled to such benefits, all other requirements having been met.
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