RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03523
                 INDEX CODE:  130

                 COUNSEL:  DAV

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His WD AGO Form  53-98,  Military  Record  and  Report  of  Separation
Certificate of Service, reflect that he was a Prisoner of War (P.O.W.)
from 17 March 1944 to 26 August 1944.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Department of Veterans Affairs (DVA) has  given  Prisoner  of  War
(P.O.W.) benefits to internees.  Applicant states that over  the  past
many years he has been to seven DVA installations in four  states  but
has never received an answer as to why Evaders have never received the
same benefits as P.O.Ws.  He would fall into the category of “Evader.”
 He was out of Army Air Force control for approximately five and  one-
half months.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Enlisted Reserve Corps on 10 August 1942  in
the grade of private for duration of war plus six months  for  service
in the U. S. Army Air Corps Enlisted Reserve  Service.   On  21 August
1943 he was ordered to extended active duty as an Aviation  Cadet  for
flying training.

Available records reflect that he was missing in  action  on  16 March
1944 and was returned to duty 25 August 1944.

Applicant was subsequently discharged  from  the  Army  Air  Corps  on
7 September 1945 in the grade of first lieutenant.

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AIR FORCE EVALUATION:

The Missing Persons Branch, Directorate of  Personnel  Accountability,
HQ AFPC/DPWCM, states that the Department of  Veterans  Affairs  (DVA)
has direction from  Congress  which  requires  they  look  at  service
personnel who were interned in friendly or neutral nations on  a  case
by case basis and make an independent  determination  of  whether  the
individual involved merits prisoner of war status.  A call to the  DVA
regarding P.O.W. status versus Evader status in  enemy  territory  was
negative.

Department of Defense Joint Publication 1-02 (as  amended  through  10
June 1998) 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 government is  captured  by  the
armed forces of the enemy.  In contrast, “evader” is defined  as  “any
person isolated in unfriendly territory who eludes capture.”  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.  They recommend the application be denied.

A copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
22 February 1999 for  review  and  response.   Applicant  submitted  a
response and states that it was  never  his  intention  to  request  a
change in his classification from “Evader” to “P.O.W.”  He  is  merely
requesting that Evaders receive  the  same  DVA  medical  benefits  as
P.O.Ws.

Counsel for the applicant also submits a statement indicating that the
applicant, while serving in Europe during World War II was placed in a
position of having to be captured, become a  P.O.W.  or,  try  at  all
costs to avoid being captured by  the  enemy  and  become  an  evader.
Although he was not behind a fence with a guard to watch over him,  he
was effectively a prisoner.

A copy of the applicant’s and counsel’s response, with attachment,  is
attached at Exhibits E and F.

_________________________________________________________________

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 probable error or injustice.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that his records should be corrected to reflect Prisoner  of
War (P.O.W.) status versus Evader status.  His  contentions  are  duly
noted; however, we do not find these assertions, in and by themselves,
sufficiently persuasive to override the rationale provided by the  Air
Force.  The applicant states  that  it  was  never  his  intention  to
request a change in his classification from “Evader” to  “P.O.W.”,  he
is requesting that Evaders receive the  same  Department  of  Veterans
Affairs (DVA) benefits as P.O.Ws.  At the outset, the applicant should
be aware that this Board does not have authority to change any  policy
with regard to benefits paid by the  DVA.   Also,  this  Board  cannot
change the law governing the status of  Evaders,  Escapees,  Internees
and P.O.Ws.  We note the confidential War Department document, dated 3
October 1944, submitted by the applicant and the  included  statement,
“M.I.A. - P.O.W,” in which an individual states that efforts have been
made to get Evaders recognized in the same  category  as  P.O.Ws.  and
Internees.  We suggest that the appropriate avenue to  bring  about  a
change would be to petition the DVA or the United States Congress.  We
therefore agree with the recommendations of the Air  Force  and  adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has suffered either
an error or an injustice.  Therefore, we find no compelling  basis  to
recommend granting the relief sought.

_______________________________________________________________________
_____________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  material  error  or  injustice;
that the application was denied without  a  personal  appearance;  and
that 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  this  application  in
Executive Session on 26 August 1999, under the provisions of  AFI  36-
2603.

                  Mr. Wayne R. Gracie, Panel Chair
                  Mr. Lawrence R. Leehy, Member
                  Ms. Leta L. O’Connor, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Dec 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPWCM, dated 4 Feb 99.
   Exhibit D.  Letter, AFBCMR, dated 22 Feb 99.
   Exhibit E.  Applicant’s Letter, dated 16 Mar 99, w/atch.
   Exhibit F.  Counsel’s Letter, dated 26 May 99.




                                   WAYNE R. GRACIE
                                   Panel Chair