RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01883 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be awarded the Prisoner of War (POW) Medal. _______________________________________________________________ APPLICANT CONTENDS THAT: He was imprisoned for attempting to escape. He is entitled to the POW Medal because of his illegal incarceration under harsh conditions in prison camp Wauwilermoos, Switzerland, during World War II. The treatment he received makes him eligible for consideration for the POW medal. In support of his appeal, the applicant provides copies of his DD Form 214, Record and Report of Separation – Honorable Discharge, 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 applicant’s original records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. Based on the available information, the applicant enlisted in the Army Air Corps on 19 September 1942 as a supply clerk. The information provided by the applicant states, on 13 April 1944, during a flying mission to bomb a Folke-Wulf aircraft factory in Augsburg, Germany, the aircraft took direct hits from German anti-aircraft batteries just after dropping its bombs over the target. After crossing the Swiss border, the aircraft came under fire a second time and the aircraft was able to land at Dubendorf Airfield in Zurich, Switzerland, and the applicant was interned at Adelboden, Switzerland. On 17 September 1944, the applicant slipped out of Adelboden, Switzerland and purchased train tickets for him and three other internees. While travelling to a city near France, he was questioned and arrested by a Swiss soldier only miles from the French border. After a failed prison escape, he was interned at the Wauwilermoos Prison in Switzerland until he was transferred back to Adelboden, Switzerland. On 12 December 1944, he escaped a second time and managed to come under United States Military control. He was transported to Washington D.C, where he was debriefed by the POW-X Branch at the Pentagon. On 16 November 1945, he was honorably released from active duty in the grade of staff sergeant. He served 2 years, 13 months, and 28 days on active duty. The remaining relevant facts, extracted from the applicant’s available military service records, are contained in the Air Force evaluations at Exhibits C, D and the BCMR Legal Advisor’s evaluation at Exhibit G. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPWC recommends denial. 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 12 August 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. According to documents in the applicant’s official military personnel record and confirmed in the National Archives World War II database, he 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 applicant 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 (IAW) Department of Defense (DoD) 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). The complete DPWC evaluation, with attachments, is at Exhibit C. AFPC/DPSIDRA recommends denial. DPSIDR states that after a review of the applicant’s available records, provided documentation, as well as the DPWC advisory, the applicant was never captured by a foreign armed enemy of the United States; therefore, he cannot be considered a POW. In accordance with DOD 1348.33M, the POW Medal shall be issued only to those taken prisoner by foreign armed forces that are 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 conflicts. The complete DPSIDRA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: The applicant’s representative states it is not clear why the Air Force Board of Military Records (AFBCMR) would solicit advisory opinions 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. The representative states AFPC/DPWC is not the appropriate office to address the issue of POW Medal eligibility in the applicant’s case or any other internee of Switzerland. This should fall under the purview of award policy officials at AFPC, who unfortunately are deferring this question to AFPC/DPWC officials. Relevant advisory opinions might include legal analyses of statutory criteria for the medal and historical testimony about the conditions of internment to substantiate or refute comparability to POWs throughout the history of US armed conflict. In the absence of relevant advisory opinions, he has provided to the AFBCMR ample 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/DPSIDR staff did not appropriately research the award criteria or correctly cite the actual law governing eligibility for the POW Medal. DPSIDR’s advisory stated “the applicant was never captured by a foreign armed enemy of the United States; therefore the applicant cannot be considered a POW.” This is a clear case where officials have misconstrued the amended requirement of 10 USC 1128 contained in the Fiscal Year 1900 National Defense Authorization Act (PL 101-189). Only the original version of the POW Medal statute authorized by PL 99-145 authorized the medal as an automatic entitlement for those held by a declared enemy state. In contrast, the PL 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 be held captive by enemy armed forces during periods of armed conflict. The DPSIDR memorandum has erroneously substituted the word “enemy” with the word “hostile.” The 1989 amendment was drafted for the sole purpose of allowing medal consideration for captives who were not held by enemy states, which is exactly what it did in the early 1900s. The current AFPC policy cannot be reconciled with this intent or the existing precedents. This policy is in direct violation of 10 USC 1128(a) (4). The applicant’s complete rebuttals, with attachments, are at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: 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 officer has written in support of this application. In January 2010, the BCMR Legal Advisor wrote a comprehensive review of the issues the officer has repeatedly raised. The opinion was addressed to the AFBCMR Executive Director to advise him about a request for reconsideration of the officer’s own previously-submitted application on behalf of his grandfather. The Director denied that reconsideration request. Based on the officer’s direct communication with the Secretary of the Air Force General Counsel (SAF/GC), GC has reviewed the advisory and concurs that the officer’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 representative 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 provided his January 2010 legal opinion for the Board’s review. The complete BCMR Legal Advisor’s evaluation, with attachment, is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant’s representative disagrees with the BCMR Legal Advisor’s interpretation of this statue and states it really boils down to one simple question and that is who exactly can be considered under the 1989 amendment to the POW Medal statue. The representative has spoken with the BCMR Legal Advisor who is unable to answer the question concerning who is exactly considered under the statute. Applying the BCMR Legal Advisor’s criteria to all prior recipients under the amended provision would deny all of them the medal, including the crew of the USS Pueblo and the Iran hostages who were the genesis of the legislation. These prior recipients were all held by non- belligerents, which is why the law was amended in order for them or any other type of detainees, internees, or hostage of terrorists to receive consideration. The BCMR Legal Advisor’s criteria effectively render this statutory unenforced and negate the very purpose of the amended statue. The representative states all outside experts he has discussed this matter with have disagreed with the BCMR Legal Advisor. Specifically, his analysis implies the former USAF General Counsel for International Affairs is unable to interpret his own 1987 advisory opinion. Counsel has attached the opinion for the AFBCMR’s reference. The representative is concerned that the BCMR Legal Advisor is calling him a provider of an “expert opinion” in the applicant’s case rather than counsel. The applicant designated him as his attorney or proper representative to act on his behalf in this matter. The representative feels it is necessary to remind the AFBCMR that it is not a requirement that he be a member of the bar in order to represent the applicant, rather he must only be competent. Lastly, the representative has many years of graduate and doctoral research on internment in Switzerland that directly relates to the applicant’s AFBCMR case. He is currently working with the House Committee on Armed Services to correct deficiencies in the policy. The representative’s complete response, with attachments, is at Exhibit I. _________________________________________________________________ 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 member’s record should be corrected to reflect he was a Prisoner of War (POW) and entitled to 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, 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-2010-01883 in Executive Session on 17 March 2011, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-01883 was considered: Exhibit A. DD Form 149, dated 1 Oct 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/ DPWC, dated 12 Aug 10, w/atchs. Exhibit D. Letter, AFPC/DPSIDRA, dated 1 Sep 10. Exhibit E. Letter, SAF/MRBR, dated 17 Sep 10. Exhibit F. Letter, Applicant, dated 22 Sep 10, w/atchs. Exhibit G. Letter, SAF/MRB Legal Advisor, dated 20 Oct 10, w/atchs. Exhibit H. Letter, AFBCMR, dated 15 Nov 10. Exhibit I. Letter, Applicant, dated 29 Nov 10, w/atchs. Panel Chair