RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-03799
            INDEX CODE:  107.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he  was  a  prisoner  of  war
(POW) from 6 Oct 44 to 5 May 45.

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APPLICANT CONTENDS THAT:

He was a pilot who was shot down over Holland on 6 Oct 44 and interned
by the Dutch until 5 May 45.

In support of his appeal, the applicant  provided  extracts  from  his
military personnel records.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant's available military personnel records indicate that he  was
appointed a second lieutenant, Army of the United States  (Air  Corps)
and entered on active duty on 3 Nov 43.  He was relieved  from  active
duty on 11 Dec 45.

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AIR FORCE EVALUATION:

AFPC/DPWCM recommended denial noting  that  the  applicant  served  on
active duty during the period from 2 Nov 43 to 11 Dec 45  as  a  photo
reconnaissance pilot with the 22nd Photo Reconnaissance Squadron,  8th
Air Force.  On 6 Oct 44, while on his fourth  mission,  the  applicant
was forced to bail out due to engine trouble; he was rescued by  Dutch
fishermen who took him to the Rozendaal Resistance Group.   The  Dutch
were advised that no more allied  airmen  were  to  be  taken  out  of
Holland via their escape lines due to the high  risk  to  lives.   The
applicant was ordered not to make any attempt to leave or escape  from
Holland for the duration of the hostilities.  Therefore, the applicant
remained in care of the Rozendaal Resistance Group evading  the  enemy
until he was released on 9 May 45.  The Air Force  did  not  become  a
separate branch of military service until Sep 47 and the applicant was
not listed on the Army Repatriation and Family  Affairs  Division  POW
database.

AFPC/DPWCM indicated that Title 38, Section 101 (32)  defines  "former
prisoner of war"  as  "a  person  who  while  serving  in  the  active
military, naval or air service, was forcibly detained or  interned  in
line of duty (A) by an enemy government or its agents,  or  a  hostile
force, during a period of war; or (B) by a foreign government  or  its
agents, or a hostile force, under  circumstance  which  the  Secretary
finds to have been comparable to the circumstance under which  persons
have generally been forcibly detained or interned by enemy governments
during periods of war."

Department of Defense Joint Publication 1-02 (as  amended  through  29
June 1999) 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  Aug  49,  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.

In AFPC/DPWCM's view, based on the available evidence,  the  applicant
was never captured by the enemy and he was never a POW as  defined  in
Title 38, Section 101 (32).

A complete copy of the AFPC/DPWCM's evaluation, with  attachments,  is
at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that his bailout on 6 Oct  44
was not only due to engine trouble.  He had been attacked by a  German
jet fighter, resulting in his engine being completely  taken  out  and
fire in his aircraft.  His evasion in Holland was  for  seven  months,
not nine months.  He was forcibly detained and interned by  a  hostile
force, the German occupiers of Holland, during a period of war under a
circumstance comparable to the circumstance under which  persons  have
been forcibly detained  or  interned  by  neutral  governments  during
periods of war.  Holland was neutral.  He eluded capture in unfriendly
territory and was not captured.  He trusts that the  Board  will  find
his statements sufficient to correct his records to  reflect  that  he
was a POW from 6 Oct 44 to 9 May 45.

Applicant's complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

SAF/GCI noted that the applicant was in German-occupied Holland having
bailed out of his disabled photo reconnaissance aircraft.  He was  not
in German hands, but rather under the care of  (or  interned  by)  the
Rozendaal Underground Resistance Group.  The Dutch were  advised  that
no more allied airmen were to be taken out  of  Holland  via  existing
escape routes due to  the  high  risk  to  lives.  As  a  result,  the
applicant was ordered by the Rozendaal people not to make  any  escape
attempt for the duration of  hostilities.   He  was  interned  by  the
Rozendaal Resistance Group until his return to allied hands,  held  in
the basement of a building and placed on starvation rations.

According to SAF/GCI, this case was  distinguishable  from  the  views
provided by their office on 25 Feb 87.  The 1987 review dealt with  an
airman forced to land in Switzerland in 1944 whereupon he was interned
by Swiss authorities, Switzerland being a neutral country in World War
II.  Their review was in agreement with an  advisory  opinion  to  the
effect that internees held by a neutral country are  not  entitled  to
prisoner of war status.

SAF/GCI  indicated  that  the  instant  case   involves   Holland,   a
belligerent country, that was occupied by enemy forces at the time  of
the applicant’s internment.  The applicant’s  internment  was  not  by
enemy forces, but by the Dutch resistance movement operating under the
orders  and  control  of  British  Intelligence.   However  harsh  his
internment may have been, the applicant’s situation did not  meet  the
statutory definition of “former prisoner of war,” i.e., “a person  who
while serving in the  active  military,  naval  or  air  service,  was
forcibly detained or  interned  in  line  of  duty  (A)  by  an  enemy
government or its agents, or a hostile force, during a period of  war;
or (B) by a foreign government or its  agents,  or  a  hostile  force,
under circumstances which the Secretary finds to have been  comparable
to the  circumstances  which  persons  have  generally  been  forcibly
detained or interned by enemy governments during periods of war."  The
Dutch resistance was neither a foreign government nor a force  hostile
to the United States; it was an allied force taking  its  orders  from
another ally, the British Government.

In SAF/GCI's view, while the facts in this  case  are  distinguishable
from those in their 1987 memorandum, the results are  the  same.   The
facts in the applicant's case,  even  when  read  in  the  light  most
favorable to him, do not make a case that supports reclassification to
former POW status.

A complete copy of the SAF/GCI evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a  response  and
additional documentary evidence which are attached at Exhibit H.

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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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  submitted  in  support  of  his   appeal   sufficiently
persuasive to override the  rationale  provided  by  SAF/GCI.   We  do
believe it should be pointed out  that  the  applicant’s  service  and
sacrifice for his country has  not  gone  unnoticed.   Notwithstanding
this, we find no evidence which shows to  our  satisfaction  that  the
applicant's internment was either by a foreign government or  a  force
hostile to the United States.  Therefore, we are not persuaded that he
met the statutory  definition  of  a  former  POW.   In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
we agree with the  recommendation  of  the  SAF/GCI  and  adopt  their
rationale as the basis for our decision that the applicant has  failed
to sustain his burden of establishing that he has suffered  either  an
error or an injustice.  Accordingly, we find no  compelling  basis  to
recommend granting the relief sought in this application.

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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  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 AFBCMR Docket Number BC-
2002-03799 in Executive Session on 13 May 03 and 11 Aug 03, under  the
provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. E. David Hoard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPWCM, dated 29 Jan 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Feb 03.
    Exhibit E.  Letter, applicant, dated 11 Mar 03.
    Exhibit F.  Letter, SAF/GCI, dated 6 Jun 03.
      Exhibit G.  Letter, AFBCMR, dated 19 Jun 03.
    Exhibit H.  Letter, applicant, dated 17 Jul 03.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair