RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04213 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His deceased brother be awarded the Prisoner of War (POW) Medal. ________________________________________________________________ APPLICANT CONTENDS THAT: His deceased brother’s 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. In support of his request, the applicant provides a 20 page statement of counsel and copies of excerpts from his deceased brother’s military records, documents and correspondence related to 10 USC 1128, and records describing the conditions Swiss internees were subjected to during World War II. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records were apparently located in the area most heavily damaged in the fire at the National Personnel Records Center in 1973. Documents provided by the applicant indicate the deceased former member served on active duty with the Army Air Corps as a B-24 co-pilot from 12 Apr 43 through 24 Jan 47. On 18 Mar 44, while on a bombing mission over Germany, the deceased former member’s aircraft suffered severe combat damage after making two consecutive passes at their target and was forced to land at an airfield in Switzerland where he was interned by Swiss authorities. After a failed prison escape, he was interned at the Wauwilermoos Federal Prison, until his transfer to the American internment camp at Adelboden on 17 Apr 44. He was interned at a variety of facilities until his successful escape on 28 Aug 44. The remaining relevant facts pertaining to this application are described in the letter prepared by the AFBCMR Legal Advisor which is attached at Exhibit B. ________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Legal Advisor recommends denial and provides a comprehensive review of the issues raised by the applicant. According to 10 USC 1128(a), the Secretary concerned shall issue a prisoner-of-war medal to any person who, while serving in any capacity with the armed forces, was taken prisoner and held captive— (1) while engaged in an action against an enemy of the United States; (2) while engaged in military operations involving conflict with an opposing foreign force; (3) while serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; or (4) 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 personnel have generally been held captive by enemy armed forces during periods of armed conflict. Counsel argues that 10 USC 1128 (a)(4) entitles anyone who was 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) 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. Counsel argues 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 deceased former member, 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, Counsel’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, Counsel 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 B. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant reiterates the Wauwilermoos camp was infamous as a camp where the conditions were just as severe as those in the worst prisoner of war camps in Germany. In support of his response, the applicant provides copies of records related to his deceased brother’s internment (Exhibit D). The applicant’s representative refutes virtually every point of the AFBCMR Legal Advisor evaluation, indicating the analysis of the differences between Title 10 and Title 38 is based on an outdated law which is no longer controlling for Title 38. Additionally, the requirement to be “taken prisoner” does not preclude consideration for captivity that does not meet a subjective definition of the term. The terms “taken prisoner” are simply meant to convey a deprivation of liberty, nothing more. The plain meaning of the word “prisoner” does not require captivity by an enemy on a battlefield. Finally, while the claim the Secretary of the Air Force has made no such finding about whether internees of Switzerland meet the criteria of comparable circumstances to POWs held by declared enemies is technically correct, the Secretary has authorized the POW Medal for many captives of neutral countries during armed conflict. A complete copy of Counsel’s response is at Exhibit E. ________________________________________________________________ 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-2010-04213 in Executive Session on 6 Sep 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Nov 09 [sic], w/atchs. Exhibit B. Applicant's Available Personnel Records. Exhibit C. Letter, AFBCMR Legal Advisor, dated 2 May 11. Exhibit D. Letter, AFBCMR, dated 19 Jul 11. Exhibit E. Letter, Applicant, dated 30 Jul 11, w/atchs. Exhibit F. Letter, Counsel, dated 9 Aug 11. Panel Chair