RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04359 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be awarded the Prisoner of War (POW) Medal. ________________________________________________________________ APPLICANT CONTENDS THAT: His internment at the Wauwilermoos Swiss Federal Prison during World War II makes him eligible for the POW Medal in accordance with Title 10, United States Code, Section 1128 (10 USC 1128). The statute requires the Secretary concerned to issue a POW medal to any person who was taken prisoner and held captive by foreign armed forces that are hostile to the United States, under circumstances which the Secretary finds to have been comparable to those under which persons have generally been held captive by enemy armed forces during periods of armed conflict. His captors were pro-Nazi forces hostile to the United States, and the conditions of his captivity were extremely harsh and comparable to or worse than those in POW camps in Germany. Additionally, he is similarly situated those interned by neutral Russia during World War II who were subsequently awarded POW Medals. Therefore, he should also be eligible for the POW Medal. In support of his request, the applicant provides two supporting statements and copies excerpts from his military records, documents and correspondence related to 10 USC 1128, records describing the conditions Swiss internees were subjected to, and documents related to award of the POW Medal to Russian internees during World War II. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force, with prior service in the Regular Army, who served on active duty from 24 June 1943 through 31 January 1964. On 24 April 1944, while serving as a bombardier on a mission to Augsburg, Germany, the applicant’s aircraft was forced to land in Switzerland due to mechanical problems. He was subsequently held as an internee in Switzerland from 24 April 1944 to 11 November 1944. Following his release to military control, the applicant continued his career in the Air Force and was subsequently retired effective 1 February 1964 in the grade of lieutenant colonel. He served 21 years, 7 months, and 26 days on active duty. ________________________________________________________________ BCMR LEGAL ADVISOR EVALUATION: The AFBCMR Legal Advisor recommends denial and provides a comprehensive review of the issues raised by the applicant. While this evaluation was originally intended to provide advice to the AFBCMR Executive Director regarding a request for reconsideration of a separate case, it addresses each of the applicant’s contentions in the instant case. The applicant argues that 10 USC 1128, paragraph (4) entitles anyone who is held in conditions determined to be similar to those experienced by POWs during a period of armed conflict is entitled to the POW Medal. However, this argument ignores the plain language of the statute which is controlling. First, the statute in paragraph (a) requires the member to be “taken prisoner and held captive;” however, the applicant was detained, or “interned,” not “taken a prisoner and held captive.” Second, provisions of paragraph (4) of the statute address award of the POW medal in non-armed conflict situations (i.e. the Pueblo Incident). The provisions of paragraphs (1) through (3) of the statute continue to apply in situations involving armed conflict. Even if paragraph (4) were to be applied during a period of armed conflict, this provision requires the member to be held by a “foreign armed force hostile to the United States,” which Switzerland was not. The applicant believes that 10 USC 1128 does not require the entire country to be considered hostile for this provision to apply. However, this analysis is incorrect as the adjective “hostile” in the statute modifies the words “foreign armed forces” and therefore cannot be split. The requirement to be held by a hostile foreign force is not met when a belligerent, such as the applicant, is held by a member of a neutral foreign force, even if the member of the neutral foreign force is personally hostile to the interned belligerent. Furthermore, the applicant’s argument the broader definition of POW in Title 38 should govern the 10 USC 1128 definition of a POW for award of the POW Medal is inaccurate and not persuasive for three reasons. First, the argument that the 1981 amendment to Title 38 is indicative of Congressional intent in modifying the Title 10 language in 1989 requires one to conclude that Congress was prescient about what it would enact some eight years later. Secondly, if Congress wanted to use the more liberal standard from the Title 38 provision when amending Title 10 in 1989, it could simply have used the same language. Third, it is entirely reasonable to conclude that Congress would create a more liberal standard in Title 38 in order to provide priority VA medical care for veterans based upon maltreatment, versus the more protective definition of Title 10 which serves to maintain the prestige of a military award. Finally, the applicant argues the AFBCMR has granted POW medals under similar circumstances in the past and should do so in this case. Although the AFBCMR is not required to follow precedent, it does strive for consistency. The vast majority of the POW medal applications involving internees in Switzerland have been denied based upon their internee status by a neutral country, but one or two such requests were approved. Regardless of the Board’s action in these two unique and isolated cases, the AFBCMR’s authority to award a medal in contradiction of the statutory criteria is questionable, especially since Congress amended the statute in 1989 and did not delete the “taken prisoner and held captive” requirement. A complete copy of the AFBCMR Legal Advisor’s evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF BCMR LEGAL ADVISOR’S EVALUATION: In response, the applicant provides an account of his experience while interned at Wauwileermoos Military Prison located in Lucerne, Switzerland. ________________________________________________________________ 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 his 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 camps 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 at Wauwilermoos and notwithstanding the previously approved POW medals to World War II internees of neutral countries and of the individuals 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. The personal sacrifice the applicant 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 or authority. Therefore, we have no other recourse but to deny this request. ________________________________________________________________ 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-2010-04359 in Executive Session on 6 Sep 11, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-04359 was considered: Exhibit A. DD Form 149, dated 24 Sep 09, w/atchs. Exhibit B. Applicant's Available Personnel Records. Exhibit C. Letter, AFBCMR Legal Advisor, dated 2 May 11. Exhibit D. Letter, AFBCMR, dated 12 May 11. Exhibit E. Letter, Applicant, dated 4 Jul 11, w/atchs.