RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03799
		INDEX CODE:  107.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was a prisoner of war (POW) from 6 Oct 44 to 5 May 45.

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APPLICANT CONTENDS THAT:

He was a pilot who was shot down over Holland on 6 Oct 44 and interned by the Dutch until 5 May 45.

In support of his appeal, the applicant provided extracts from his military personnel records.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant's available military personnel records indicate that he was appointed a second lieutenant, Army of the United States (Air Corps) and entered on active duty on 3 Nov 43.  He was relieved from active duty on 11 Dec 45.

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AIR FORCE EVALUATION:

AFPC/DPWCM recommended denial noting that the applicant served on active duty during the period from 2 Nov 43 to 11 Dec 45 as a photo reconnaissance pilot with the 22nd Photo Reconnaissance Squadron, 8th Air Force.  On 6 Oct 44, while on his fourth mission, the applicant was forced to bail out due to engine trouble; he was rescued by Dutch fishermen who took him to the Rozendaal Resistance Group.  The Dutch were advised that no more allied airmen were to be taken out of Holland via their escape lines due to the high risk to lives.  The applicant was ordered not to make any attempt to leave or escape from Holland for the duration of the hostilities.  Therefore, the applicant remained in care of the Rozendaal Resistance Group evading the enemy until he was released on 9 May 45.  The Air Force did not become a separate branch of military service until Sep 47 and the applicant was not listed on the Army Repatriation and Family Affairs Division POW database.

AFPC/DPWCM indicated that Title 38, Section 101 (32) defines "former prisoner of war" as "a person who while serving in the active military, naval or air service, was forcibly detained or interned in line of duty (A) by an enemy government or its agents, or a hostile force, during a period of war; or (B) by a foreign government or its agents, or a hostile force, under circumstance which the Secretary finds to have been comparable to the circumstance under which persons have generally been forcibly detained or interned by enemy governments during periods of war."

Department of Defense Joint Publication 1-02 (as amended through 29 June 1999) defines "prisoner of war" as "a detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 Aug 49, in particular, one who, while engaged in combat under orders of his government is captured by the armed forces of the enemy.”  In contrast, "evader" is defined as "any person isolated in unfriendly territory who eludes capture."  Although Joint Publication 1-02 definitions are not necessarily intended to be statements of policy, the definitions nonetheless are consistent with the language of the 1919 Geneva Prisoner of War Convention and other law-of-war treaties.

In AFPC/DPWCM's view, based on the available evidence, the applicant was never captured by the enemy and he was never a POW as defined in Title 38, Section 101 (32).

A complete copy of the AFPC/DPWCM's evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that his bailout on 6 Oct 44 was not only due to engine trouble.  He had been attacked by a German jet fighter, resulting in his engine being completely taken out and fire in his aircraft.  His evasion in Holland was for seven months, not nine months.  He was forcibly detained and interned by a hostile force, the German occupiers of Holland, during a period of war under a circumstance comparable to the circumstance under which persons have been forcibly detained or interned by neutral governments during periods of war.  Holland was neutral.  He eluded capture in unfriendly territory and was not captured.  He trusts that the Board will find his statements sufficient to correct his records to reflect that he was a POW from 6 Oct 44 to 9 May 45.

Applicant's complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

SAF/GCI noted that the applicant was in German-occupied Holland having bailed out of his disabled photo reconnaissance aircraft.  He was not in German hands, but rather under the care of (or interned by) the Rozendaal Underground Resistance Group.  The Dutch were advised that no more allied airmen were to be taken out of Holland via existing escape routes due to the high risk to lives. As a result, the applicant was ordered by the Rozendaal people not to make any escape attempt for the duration of hostilities.  He was interned by the Rozendaal Resistance Group until his return to allied hands, held in the basement of a building and placed on starvation rations.

According to SAF/GCI, this case was distinguishable from the views provided by their office on 25 Feb 87.  The 1987 review dealt with an airman forced to land in Switzerland in 1944 whereupon he was interned by Swiss authorities, Switzerland being a neutral country in World War II.  Their review was in agreement with an advisory opinion to the effect that internees held by a neutral country are not entitled to prisoner of war status.

SAF/GCI indicated that the instant case involves Holland, a belligerent country, that was occupied by enemy forces at the time of the applicant’s internment.  The applicant’s internment was not by enemy forces, but by the Dutch resistance movement operating under the orders and control of British Intelligence.  However harsh his internment may have been, the applicant’s situation did not meet the statutory definition of “former prisoner of war,” i.e., “a person who while serving in the active military, naval or air service, was forcibly detained or interned in line of duty (A) by an enemy government or its agents, or a hostile force, during a period of war; or (B) by a foreign government or its agents, or a hostile force, under circumstances which the Secretary finds to have been comparable to the circumstances which persons have generally been forcibly detained or interned by enemy governments during periods of war."  The Dutch resistance was neither a foreign government nor a force hostile to the United States; it was an allied force taking its orders from another ally, the British Government.

In SAF/GCI's view, while the facts in this case are distinguishable from those in their 1987 memorandum, the results are the same.  The facts in the applicant's case, even when read in the light most favorable to him, do not make a case that supports reclassification to former POW status.

A complete copy of the SAF/GCI evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response and additional documentary evidence which are attached at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation submitted in support of his appeal sufficiently persuasive to override the rationale provided by SAF/GCI.  We do believe it should be pointed out that the applicant’s service and sacrifice for his country has not gone unnoticed.  Notwithstanding this, we find no evidence which shows to our satisfaction that the applicant's internment was either by a foreign government or a force hostile to the United States.  Therefore, we are not persuaded that he met the statutory definition of a former POW.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the SAF/GCI and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2002-03799 in Executive Session on 13 May 03 and 11 Aug 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPWCM, dated 29 Jan 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Feb 03.
    Exhibit E.  Letter, applicant, dated 11 Mar 03.
    Exhibit F.  Letter, SAF/GCI, dated 6 Jun 03.
	Exhibit G.  Letter, AFBCMR, dated 19 Jun 03.
    Exhibit H.  Letter, applicant, dated 17 Jul 03.