RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00736 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her late father be awarded the Prisoner of War (POW) Medal. _______________________________________________________________ APPLICANT CONTENDS THAT: Her father is entitled to the POW Medal because of his illegal incarceration under harsh conditions in prison camp Wauwilermoos, Switzerland, during World War II. He was incarcerated under circumstances “comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict,” as required by Public Law (PL) 101-189, dated 29 November 1989. The treatment he received makes him eligible for consideration for the POW medal. In support of her appeal, the applicant provides copies of her late father’s death certificate and a POW Medal recommendation with attachments from the applicant’s counsel. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The decedent is a former member of the Army Air Corps who served on active duty from 29 May 1943 to 4 November 1945 as a Bombardier. On 27 May 1944, during a flying mission over Germany, the decedent’s aircraft took direct hits from a German fighter aircraft and suffered engine failure and significant fuel loss. The aircraft was able to land at Dubendorf Airfield in Zurich, Switzerland, and the entire crew was interned. After a failed prison escape, the decedent was interned at the Wauwilermoos Prison in Switzerland. Following his return to United States Military Forces control, he was treated on an outpatient basis until his discharge from active duty. On 4 November 1945, he was honorably released from active duty in the grade of first lieutenant (O-2). He served 2 years, 5 months, and 6 days on active duty. A National Archives and Records Administration Military Personnel Record Finding Aid Report indicates the decedent’s original records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. The remaining relevant facts, extracted from the decedent’s available military service records, are contained in the Air Force evaluations at Exhibits B and C; and the BCMR Legal Advisor’s evaluation at Exhibit G. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPWC recommends denial of POW status. DPWC states Department of Defense Joint Publication 1-02 (as amended through 22 March 2007), Attachment 1, 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 August 12, 1949. In particular, one who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy.” In contrast, “interned” is defined as “the casualty is definitely known to have been taken into custody of a non belligerent 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.” 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. DPWC indicates that according to documents in the decedent’s official military personnel record and confirmed in the National Archives World War II database, the decedent was detained in Switzerland as an internee until his return to military control. Moreover, as the Air Force did not become a separate branch of military service until September 1947, DPWC coordinated with the United States Army and they have confirmed the decedent is not listed on the Army Repatriation and Family Affairs Division POW database. Some internees were mistreated at the Switzerland punishment camps; however, the mistreatment did not create a condition in which Switzerland lost its neutrality and became an opposing or foreign armed force hostile to the United States. Soldiers who endured a similar experience as a detainee or an internee at various camps in Switzerland by itself do not qualify for POW status. POW status to internees in Switzerland requires the Secretary of the Air Force to determine that Swiss officials were acting on behalf of a foreign armed force hostile to the United States during World War II, in accordance with Department of Defense 1348.33M (Manual of Military Decorations and Awards), paragraph C6.2 and Title 10 United States Code, Section 1128(a)(4) (Attachments 4 and 5 respectively). DPWC defers to AFPC/DPSIDR to determine, based on their criteria, whether award of the POW Medal is warranted. The complete DPWC evaluation is at Exhibit B. AFPC/DPSIDR recommends denial. DPSIDR states that after a review of the applicant’s available records, provided documentation, as well as the DPWC advisory, they must recommend disapproval for entitlement to the POW Medal as Switzerland was not considered to be a foreign armed enemy of the United States during World War II. The complete DPSIDR evaluation is at Exhibit C. _________________________________________________________________ COUNSEL’S REVIEW OF AIR FORCE EVALUATIONS: By obtaining an advisory opinion from the Casualty Matters Division (AFPC/DPWC), the requirements for the medal are confused with repatriation definitions that are irrelevant to the award. The eligibility requirements of the POW Medal are not based on the definitions contained in Joint Publications 1-02, and they are also not comparable to status definitions in the Geneva Convention. Most of what is contained in the AFPC/DPWC advisory opinion is incorrect and should be discarded. In the absence of relevant advisory opinions, he has provided historical and legal evidence which shows how internees at Wauwilermoos prison were treated, documents that the POW Medal was intended to be awarded to internees of neutral countries, and also demonstrated how the United States Air Force has awarded the medal to internees in the past. The AFPC Recognition Branch (AFPC/DPSIDR) staff did not appropriately research the award criteria or correctly cite the law governing eligibility for the POW Medal. They have misconstrued the amended requirement of Title 10, United States Code, Section 1128 (Public Law 101-189) for captors to be treating the American service members in a hostile manner. Only the original 1985 version of the POW Medal statue (Public Law 99- 145) authorized the medal as an automatic entitlement for those held by a declared enemy. In contrast, Public Law 101-189 exception to captivity by a declared enemy only requires captivity by someone “hostile to the United States, under circumstances which the Secretary concerned finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict.” The DPSIDR memorandum has erroneously substituted the word “enemy” with the word “hostile.” Apparently they do not know the difference between the two terms, nor does their office know the original statue was modified in 1989 with the explicit objective of removing the requirement that the captor of a POW must be “an enemy of the United States.” The counsel’s complete rebuttals, with attachments, are at Exhibits E and F. _________________________________________________________________ EVALUATION FROM THE BCMR LEGAL ADVISOR: The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor states this application is another development in a long-running disagreement with an active duty Army officer who teaches history at West Point concerning the entitlement to the POW Medal for individuals who were interned by Swiss authorities during World War II. The captain has written in support of this application. In January 2010, the BCMR Legal Advisor wrote a comprehensive review of the issues the captain has repeatedly raised. The opinion was addressed to the AFBCMR Executive Director to advise him about a request for reconsideration of the captain’s own previously-submitted application on behalf of his grandfather. The Director denied that reconsideration request. Based on the captain’s direct communication with the Secretary of the Air Force General Counsel (SAF/GC), it has reviewed the advisory and concurs that the captain’s analysis is wrong primarily because in accordance with the first rule of statutory construction, the plain language of the statue controls. SAF/GC recognizes the Air Force gave POW Medals to certain members held in Siberia, but it finds that situation distinguishable given the realities of the Cold War and not controlling as to this application in any event. The applicant’s advisor has repeatedly been told that until the office of the General Counsel opines differently, panels will be advised to deny such applications as inconsistent with congressional intent in this area as reflected in plain language of the statue passed. The BCMR Legal Advisor has provided his January 2010 legal opinion for the Board’s review. The complete BCMR Legal Advisor’s evaluation, with attachment, is at Exhibit G. _________________________________________________________________ COUNSEL’S REVIEW OF THE BCMR LEGAL ADVISOR’S EVALUATION: A copy of the BCMR Legal Advisor’s was forwarded to the applicant’s counsel on 27 October 2010. As of this date, this office has received no response. _________________________________________________________________ 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 and careful review of the evidence of record and the applicant's extensive submission, we are not persuaded that the former member’s record should be corrected to reflect he was a Prisoner of War (POW) and awarded the POW medal. Notwithstanding the fact that some internees were mistreated at the punishment camp and the commandant of Wauwilermoos was tried after the war for his misconduct in connection with the mistreatment, the mistreatment at the Wauwilermoos camp did not create a condition in which Switzerland lost its neutrality and became an opposing or foreign armed force hostile to the United States. We are aware that under U.S. foreign policy, Switzerland was recognized as a neutral country and not an enemy of the United States during World War II. Under long-standing customary international law, and provisions of the Swiss Constitution, Switzerland is a permanently neutralized country consistently and uniformly recognized as such by all nations. Furthermore, the pertinent provisions of the Geneva Convention do not support a conclusion that internees have the same status as prisoners of war under international law. Contrary to the applicant’s strong and convincing arguments and supported documentation of inappropriate treatment of internees while at Wauwilermoos and notwithstanding the previously approved POW medals to World War II internees of neutral countries and of the individual cited in the application, this Board is compelled to abide by the Articles of the Geneva Convention and international law pertaining to neutral nations, and established U.S. foreign policy. We are though, in agreement with the applicant’s plight to have these American airmen recognized who suffered imprisonment in service to their country. However, we believe this issue is a matter of policy that should be raised to the appropriate level for consideration and possible resolution. The personal sacrifice the former member endured for our country is noted; however, insufficient evidence has been presented to warrant corrective action. Based on the rationale discussed above we do not believe that changing such matters of U.S. foreign policy and firmly established international practice is within our purview of authority. Therefore, we have no other recourse but to deny this request. _________________________________________________________________ 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 the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00736 in Executive Session on 14 December 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-00736: Exhibit A. DD Form 149, dated 13 Sep 09, w/atchs. Exhibit B. Letter, AFPC/DPWC, dated 16 Apr 10. Exhibit C. Letter, AFPC/DPSIDR, dated 3 May 10. Exhibit D. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit E. Letter, Counsel, dated 27 Jun 10, w/atchs. Exhibit F. Letter, Counsel, dated 24 Jul 10. Exhibit G. Letter, BCMR Legal Advisor, dated 20 Oct 10, w/atchs. Exhibit H. Letter, AFBCMR, dated 27 Oct 10.