RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02473

						COUNSEL:  NONE

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

He receive compensation for the time (8 Apr 45 to 21 Apr 45) he escaped from a Prisoner of War (POW) camp. 

By letter dated 29 Dec 16, the applicant requests the letter of deduction dated 20 Aug 51, for escapement, be removed from his record.

APPLICANT CONTENDS THAT:

He should be compensated for the period of time he escaped from a POW camp.  He followed the procedures in the Airman’s Guide and Uniform Code of Military Justice (UCMJ) regarding escaping from the enemy.  He is not being compensated for this time.

By letter dated 29 Dec 16, the applicant states while serving during World War II, his plane was shot down on 4 Oct43 in enemy territory and he was held captive in the Nazi POW camp. On 8 Apr 45, during a force march of 4,000 troops, he and a fellow service member managed to break away from Nazi captivity.  They managed to survive in enemy/German territory until two or three days after the German surrender on 8 May 45. They met up with a U.S. Army Major from General Patton's 3rd Army, who arranged their return to the United States.  As a POW in World War II, he acted in accordance with Article Ill of the Code of Conduct and does not understand why he received a Letter of Escapement as he was in enemy territory the entire time.

By letter dated 23 Jan 17, the applicant sent a follow-up letter reiterating the comments in his 23 Dec 16 letter. 

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

STATEMENT OF FACTS:

On 19 Dec 41, the applicant commenced his enlistment in the Army of the United States (AUS).

The applicant was in a POW status from 4 Oct 43 through 21 Apr 45.  He escaped from 8 Apr 45 to 21 Apr 45.

According to a Battle Casualty Report dated 25 May 45, the applicant was liberated on 13 May 45. 

In a letter dated 20 Aug 51, from the War Claims Department, the applicant was notified he was being compensated under the provision of the War Claims Act of 1948 for his imprisonment from 4 Oct 43 to 21 Apr 45.  However, the notification further indicated that Section 6 of the War Claims Act did not allow for payment of benefits during a period of escapement and a deduction of 13 days was made for the period 8 Apr 45 to 21 Apr 45.

On 1 Apr 63, the applicant retired and was credited with 21 years, 1 month, and 24 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and E.  

AIR FORCE EVALUATION:

AFPC/DPFC verified the applicant was a POW from 4 Oct 43 to 22 Aug 45.  However, they do not have the authority to compensate individuals for a period of time as an escape.  However, they recommend obtaining a legal review for any changes in law to the War Claims Act of 1948.

A complete copy of the AFPC/DPFC evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5 Jan 17, for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office

AIR FORCE EVALUATION:

AFPC/JA recommends denial, indicating there is no evidence of an error or injustice noting the governing statute does not allow compensation for escapement of POWs.

The War Claims notification indicates a claimant may appeal the disallowance of a claim, in whole or in part, within six months from the date of the award letter.  There is no evidence the applicant appealed his claim.

The War Claims Act allowed compensation to a military member who was held as a POW.  When someone successfully escapes from captivity, they can no longer be considered held by the enemy.  Furthermore, at the time of the application, compensation under Section 6 of the War Claim Act was limited to each day that the enemy failed to adequately feed a military member as required under the Geneva Convention.  The enemy could not have failed in a responsibility to adequately feed a military member if the military member was not in the enemy’s custody.

In 1954, the War Claims Act of 1948 was amended to cover violations of certain sections of the Geneva Convention of 1929 other than by inadequately feeding prisoners.  Claimants could apply for compensation for the enemy’s violations. However, this compensation is still only available to those who were “held” as prisoners of war.  The applicant’s DD Form 149 does not request compensation under this amended Act nor does it discuss any circumstances for JA’s review under this amendment.

A complete copy of the AFPC/JA evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

After being in a POW camp for 19 months, he was able to escape twice.  The second time he escaped he avoided being recaptured by the enemy.  He escaped for a total of 30 days and should be compensated.  He was in enemy territory the entire time.

A complete copy of the applicant’s rebuttal is at Exhibit G.

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 an error or injustice to warrant compensating the applicant for the time he escaped from a POW camp. 
We took notice of the applicant’s complete submission in judging the merits of the case and agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  We also note the applicant requests the War Claims Department letter dated 20 Aug 51, be removed from his record.  However, he has not provided sufficient evidence to show the letter is in error or unjust.  While we are not unmindful or unappreciative of the applicant’s service to our Nation, in the absence of evidence he was denied rights to which entitled, we find no basis to recommend granting any of the relief sought in this application.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; 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-2016-02473 in Executive Session on 14 Feb 18, under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02473 was considered:

	Exhibit A.  DD Form 149, dated 16 Jun 16, w/atch(s).
	Exhibit B.  Excerpts from Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFC, dated 16 Nov 16, w/atchs.
	Exhibit D.  Letter, AFBCMR, dated 5 Jan 17.
	Exhibit E.  Memorandum, AFPC/JA, dated 9 Nov 17.
	Exhibit F.  Letter, AFBCMR, dated 28 Nov 17
	Exhibit G.  Applicant’s Rebuttal, dated 6 Dec 17.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.