RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-03664
				INDEX CODE 130.00  107.00
	 			COUNSEL:  None

				HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His military records reflect he was a prisoner of war (POW) from 2 Apr 45 to 25 Jun 45 and received the Purple Heart (PH) medal for wounds sustained during World War II (WWII). 

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APPLICANT CONTENDS THAT:

His POW status and wounds sustained on the left side of his face, left shoulder, and right hand were not recorded at the time of his separation.

The applicant’s complete submission, with attachment, is at Exhibit A. 

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STATEMENT OF FACTS:

Title 38, Section 101(32) (Exhibit C) defines “former POW” 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 (DOD) Joint Publication 1-02 (as amended through 5 Sep 03 - Exhibit C), defines POW as a detained person as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of POWs 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. An internee, on the other hand, is a member definitely known to have been taken into the custody of a nonbelligerent foreign power as a result of and for reasons arising out of any armed conflict in which the Armed Forces of the United States are engaged.

The applicant was inducted on 9 Feb 43 and entered active duty in the Army Air Corps on 16 Feb 43. He was deployed as an aerial gunner to the European Theater of Operations (ETO), arriving on 10 Mar 45. 

Around 2 Apr 45, the applicant was listed as missing in action.  A 9 Apr 45 letter from the War Department to the applicant’s father advised that the applicant was interned in a neutral country (Sweden) and was slightly wounded. [The available records contain no additional information.] He was returned to military custody on 25 Jun 45 and returned to the United States on 25 Jul 45.

On 31 Oct 45, he was honorably discharged in the grade of sergeant with 2 years, 8 months, and 16 days of active service. His discharge document indicates in Section 55 (Remarks) that he was an internee in Sweden during the period 2 Apr-25 Jun 45; however, Section 34 (Wounds Received in Action) indicates no wounds were sustained in action. 

On 9 May 89, HQ AFMPC/DPMASA at Randolph AFB disapproved the applicant’s request for the POW medal. In their cover letter to the applicant, AFMPC advised that, under the provisions of Public Law 99-145, the POW medal is only awarded to individuals who were taken prisoner and held captive while engaged in military operations with an opposing enemy force. AFMPC based its determination on the provisions of Department of Defense (DOD) policy, and explained they were required to apply the same stringent criteria to individuals who were detained in other countries such as [Sweden,] Switzerland, Russia, Turkey, Spain and Portugal. Further, the statute the applicant apparently mentioned in his application, Public Law 100-322, pertained to the definition of a POW for Veterans Administration purposes, and did not affect the eligibility criteria for the POW medal as outlined in Public Law 99-145 and the DOD implementing guidance.

The applicant originally filed his 17 Sep 03 appeal with the Army Review Boards Agency; on 9 Oct 03, he was advised to file with the AFBCMR.

On 23 Jan 04, HQ AFPC/DPPPRA requested the applicant provide information and documentation detailing the date he received a wound or injury, how it was incurred as a result of enemy action, and any medical treatment he may have received. However, the applicant did not respond.

According to HQ AFPC/DPW (Exhibit C), the applicant is not listed on the Army Repatriation and Family Affairs Division POW database. 

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AIR FORCE EVALUATION:

HQ AFPC/DPW recommends denial of POW status or the POW medal because the applicant was an internee in Sweden and, by definition, was not a POW.

A complete copy of the evaluation, with attachments, is at Exhibit C.

HQ AFPC/DPPPR recommends denial of the PH medal because there is no evidence in the applicant’s military personnel record demonstrating he was injured as a direct result of enemy action, and since he did not provide the documentation they requested, they are unable to determine his entitlement to that award. 

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 26 Mar 04 for review and comment within 30 days.  As of this date, this office has received no response.

On 7 Apr 04, the AFBCMR Staff forwarded legal opinions on two cases similar to the applicant’s. The legal opinions discuss the differences between internees and POWs and the similar AFBCMR cases that were subsequently denied. The applicant was given 15 days in which to provide comments and or additional documentation.  As of this date, this office has received no response.

Complete copies of the AFBCMR cover letter, with the legal opinions and sanitized Records of Proceedings (ROPs), are at Exhibit F.

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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. After a thorough review of the available record and the applicant’s submission, we are not persuaded he should be awarded the PH or POW status.  The applicant was interned in the neutral country of Sweden on 2 Apr 45, and returned to military custody on 25 Jun 45. Sweden was a neutral country and not an enemy of the United States during WWII.  According to HQ AFPC/DPW, the applicant is not listed on the Army Repatriation and Family Affairs Division POW database. Based on Title 38, Section  101(32), and DOD Joint Publication  1-02, the applicant has not made his case to support reclassification as a POW. While the 1945 letter to his father indicated he was slightly wounded, the applicant’s records do not indicate how or by whom. Despite being invited to provide more evidentiary details regarding the circumstances of his wounding, he did not respond. As a result, the applicant has not shown he is eligible for the PH for having sustained an injury as a direct result of enemy action. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not established his claims for POW status and the PH. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 this application in Executive Session on 18 May 2004 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2003-03664 was considered:

   Exhibit A.  DD Form 149, dated 17 Sep 03, w/atchs.
   Exhibit B.  Applicant's Available Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPW, dated 22 Dec 03, w/atchs
   Exhibit D.  Letter, HQ AFPC/DPPPR, dated 22 Mar 04.
   Exhibit E.  Letter, SAF/MRBR, dated 26 Mar 04.
   Exhibit F.  Letter, AFBCMR, dated 7 Apr 04, w/atchs.