(dissenting) :
The majority opinion treats in a rather cavalier manner the factor in the case which I deem controlling. I here emphasize that all of the named plaintiffs, though formerly Philippine residents, are now either resident citizens of the United States or resident aliens within the United States. It is against these two classes that the discriminatory provisions of the challenged legislation tend to operate. The only classes claimed to be represented by plaintiffs are those of Filipino servicemen, or their spouses, who have now become either resident American citizens or Filipino aliens resi*1325dent in the United States. Here, we are not concerned with the rights and privileges, if any, of the Filipino veterans still living in the Philippines. We need only reach a conclusion on whether the named classes, if otherwise within the purview of the veterans’ benefit legislation, are entitled to full benefits despite the provisions of 38 U.S.C. § 107.
The overall result of the challenged legislation is to deprive Filipino veterans and their beneficiaries of all war benefits to which non-Filipino veterans or their beneficiaries are entitled, except benefits for service-connected disability or death (and benefits under certain pre-1946 National Life Insurance Contracts), and, further, to limit the allowed benefits to 50% of the monetary amount to which non-Filipino veterans are entitled.
The reason asserted by the Congress for the monetary limitation placed on benefits to Filipino veterans was that a peso in the Philippines would go as far as a dollar in the United States and that whenever any part of the GI Bill of Rights was extended to Filipino veterans, the cost of living in the Philippines and other economic factors should be given careful consideration.1 The basis for this monetary limitation—rational and valid as it might be with respect to Filipino veterans still living in the Philippines—would have no rational application to Filipino veterans living in the United States, such as plaintiffs. Standards of living and monetary purchasing power in the Philippines are determined by factors wholly different from factors affecting such matters within the States. Obviously, if benefits were paid to veterans living in the Philippines in the same monetary currency as paid to veterans living in the United States, those Filipino veterans would be unjustly enriched.
Another distinction, vaguely asserted by the Congress, is that a difference existed in military status between the Filipino servicemen and other servicemen in that the' former were “. . . in the service of . . .”, but not “. part of the Armed Services” of the United States. In my opinion, this is not a rationally-based distinction. It is here agreed that as the Bataan Campaign wore on whatever distinction there may have been between those serving in the Philippine Commonwealth Army and those serving in the service of the Armed Forces of the United States gradually disappeared. If there ever was a distinction, it was one without a difference as the battered armies of both the Commonwealth and the States crawled through the last bitter and blood-stained miles on their way to eventual surrender at Corregidor.
The distinctions Congress attempted to draw in placing limitations on the benefits to the Filipino veterans were an obvious effort on the part of the government to reduce the overall cost of veterans’ benefits by refusing any longer to recognize that Filipino servicemen were in fact—for all practical purposes—part of the active Armed Services of the United States within the meaning of the United States Veterans’ Benefits statutes.
These facts were clearly recognized by President Truman in his letter to the *1326Subcommittee of February 20, 1946, when he said:
“Philippine Army veterans are nationals of the United States and will continue in that status until July 4, 1946. They fought, as American nationals, under the American flag, and under the direction of our military leaders. They fought with gallantry and courage under most difficult conditions during the recent conflict. Their officers were commissioned by us. Their official organization, the Army of the Philippine Commonwealth, was taken into the armed forces of the United States by Executive order of the President of the United States on July 26, 1941. That order has never been revoked or amended.” [Statement by the President, Hearings before the Subcommittee of the Committee on Appropriations, supra, at 60; emphasis supplied.]
That the Congress was concerned with the rights of Filipinos who actually became citizens of the United States was made manifest by Senator Hayden’s statement on the effect of the nationality provisions in the amendment to the recision bill, from which I quote:
“The amendment as enacted cancels any right which soldiers in the Philippine Army may have had to become citizens of the United States under the Nationality Act of 1940, as amended by title X of the Second War Powers Act of 1942. It was the view of the committee that the approximately 200,000 Filipinos who first and last served in that army did so because they fervently desired freedom for their country and not with the idea of acquiring the right to go to another country.
That army consisted of 200,000 of the best citizens of the Philippines, who, to a large extent, hold the future of the islands in their hands. It would be the worst kind of public policy practically to invite them to leave their homes, where their position as patriots is recognized, and come to the United States, where, as immigrants, they would have to begin at the very bottom of the economic ladder to make their way upward. In the end it would be doing no favor to hold out such an inducement to leave the land they love and for which they fought so valiantly.” [Id. at 60.]
Ironically, one of the classes before us is composed of citizens of the United States who, in war time, were Philippine Army Veterans but also Nationals of the United States.2
To me it is crystal clear that the Congress never intended to discriminate against Philippine Army Nationals living in the United States and subject to the same living standards as their American brothers with whom they fought and died. In light of the Congressional intent to distinguish between those who were subject to the lower living standards in the Philippines from those with the higher living standards in the United States, it is illogical to argue that the Filipino serviceman’s entitlement to benefits is based upon the prior service, rather than upon the present fact of residency or citizenship. True enough, the affected classes before *1327us exercised their right voluntarily to travel to the States. Likewise, one class voluntarily became citizens of the United States. On the other hand, we held out the doormat of welcome, and the one class became citizens and the other lawfully entered as aliens. I have always thought there are no second class citizens in the United States, and I do not believe a lawfully entered alien should be the subject of discrimination unless the Congressional intent is clear. The rights of these plaintiffs grew out of precisely the same bloody conflict as did the entitlements of their American counterparts.
Although two hundred million dollars were appropriated in 1946 for support of the Philippine Army, there is nothing in the legislative history to indicate that these funds, or any other funds, were to be used by the Philippine Commonwealth to pay benefits to Filipino veterans in lieu of payment of benefits by the United States. The record shows that no part of the two hundred million dollars has ever been used by the Philippine Commonwealth for such benefits.
The fundamental principles by which the constitutionality of this type of legislation must be tested are well established. Once having established a policy granting veterans’ benefits, the Congress may not discriminate between classes of veterans unless there is a rational basis for the classification. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) ; Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). Also, discrimination is impermissible when the classification is according to race, nationality or alienage, unless the classification is necessary to protect some compelling governmental interest. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).
While the issue before us, involving as it does a federal statute, is not directly covered by the Fourteenth Amendment’s equal protection clause, the classifications which are here under attack must be consistent with the due process requirements of the Fifth Amendment. Richardson v. Belcher, supra, 404 U.S. at 81, 92 S.Ct. 254; Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
As applied to the classes of veterans before us, I have grave doubt as to the constitutionality of the challenged legislation. However, I would avoid the constitutional challenge altogether by invoking judicial restraint. It is my opinion that the Congress never intended this legislation to apply to a Filipino veteran who became a citizen of the United States or a Filipino veteran legally residing in the United States. The Congressional history is solidly behind this view.
Lagtapon v. Secretary of HEW, 156 U.S.App.D.C. 363, 481 F.2d 538 (1973), upon which defendants rely so heavily, involved a construction of 42 U.S.C. § 402(h) in an action to collect Parents’ Insurance Benefits, rather than the interpretation of 38 U.S.C. § 107, the statute before us. Although not necessary to the decision, the court in Lagtapon proceeded to consider § 107 and held that it was not unconstitutional. Lagtapon is a slender reed upon which to rest a decision under the facts here present. Another distinguishing feature of great significance is the fact that there the decedent was neither a citizen nor a resident of the United States. Such, of course, is not the ease here.
I would grant the relief prayed for in plaintiffs’ complaint.
* * * * *
“The GI bill of rights is intended to benefit an American who served in the armed forces and who, upon his discharge from the service, returns to civil life in the United States, where American standards of living prevail. A peso in the Philippines will go as far as a dollar in the United States. A Filipino veteran does not need 150 pesos a month in order that he may go to school or 40 pesos a week as unemployment compensation. Neither is he justified in asking for a loan of 8,000 pesos to buy a farm or to go into business. Whenever any part of the GI bill of rights is extended to Filipino veterans, the cost of living in the Philippines and other economic factors must be given careful consideration.”
❖ sis * *
[Senator Hayden of Arizona, Hearings before the Subcommittee of the Committee on Appropriations, United States Senate, 79th Congress, 2d Session on H.R. 5604, March 25, 1946, at 60.]
. “STATEMENT BY THE PRESIDENT”
* * * * *
“However, the passage and approval of this legislation do not release the United States from its moral obligation to provide for the heroic Philippine veterans who sacrificed so much for the common cause during the war.”
SÍ* * * * *
“I consider it a moral obligation of the United States to look after the welfare of Philippine Army veterans.
I recognize, of course, that the Commonwealth government and after it, the Government of the Philippine Republic, have obligations to these veterans. But the government of the Philippines is in no position today, nor will it be for a number of years, to support a large-scale program of the care of its veterans.”
* * * * *
Id.