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AF | BCMR | CY2004 | BC-2004-00563
Original file (BC-2004-00563.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-00563
            INDEX NUMBER: 107.00

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to  reflect  he  was  in  a  Prisoner-of-War  (POW)
status from 20 June 1944 through 26 October 1944, and he be awarded the  POW
medal.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Based on the Army’s definition of internment as a person interned as  a  POW
or enemy alien, he should be identified as a former POW and receive the  POW
medal.

In support of the appeal, applicant submits a letter from  Senator Dole  and
the Army Review Boards Agency.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is a former member of the Army Air  Corps  who  served  on  active
duty as a B-24, Liberator, aerial  gunner  from  14  September  1942  to  27
August 1945.  During a bombardment mission to Politz, Germany,  on  20  June
1944, his aircraft sustained damage and was forced to land in Sweden.   From
30 June 1944 to 1 November 1944, he was interned by the Swedish government.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPF recommends the application be denied  and  states,  in  part,  that
Title 10, United States Code, 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.”   The  Army  Review
Boards Agency’s definition of internment has been reviewed by  AFPC/JA  and,
in their  opinion,  the  pertinent  statute,  Department  of  Defense  (DoD)
instruction and written precedent clearly indicate the POW medal should  not
be issued to military members held by nonbelligerents.

The AFPC/DPF evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 30 July 2004 for review and response within  30  days.   However,  as  of
this date, this office has received no response.

_________________________________________________________________

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.  In this respect,  we  note  the  term  POW
refers to members  of  the  armed  forces  who  are  captured  and  forcibly
detained by enemy or hostile armed forces.  An internee is  a  member  taken
into custody of a nonbelligerent foreign power as the  result  of,  and  for
reasons arising out of, any armed conflict in which the armed forces of  the
United States (U.S.) is engaged.  The POW medal is awarded to those  members
taken prisoner by foreign armed forces that are hostile to  the  U.S.  under
circumstances which the Secretary concerned finds to  have  been  comparable
to those under which persons have  generally  been  held  captive  by  enemy
forces during periods of armed conflict.  Although  applicant  was  held  by
the Swedish government during World War  II,  Sweden  was  recognized  as  a
neutral country  and  not  a  declared  enemy  of  the  United  States.  The
pertinent provisions of the Geneva Convention do not  support  a  conclusion
that internees have the same status as POWs under  international  law.   The
personal sacrifice applicant endured  for  his  country  is  noted  and  our
decision in no way diminishes the high  regard  we  have  for  his  service;
however, we are compelled to abide by the Articles of the Geneva  Convention
and international law pertaining to neutral nations,  and  established  U.S.
foreign policy.  Therefore,  we  find  no  basis  upon  which  to  recommend
favorable consideration of his requests.

_________________________________________________________________

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  Docket  Number  BC-2004-00563
in Executive Session on 1 September 2004, under the provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. John E. B. Smith, Member
                       Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPF, dated 22 Jul 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Jul 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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