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AF | BCMR | CY2004 | BC-2004-01631
Original file (BC-2004-01631.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-01631
                                        INDEX CODE:  130.00
                                        COUNSEL:  NO

                                        HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His DD Form 214 be corrected to reflect he was a Prisoner of  War  (POW)  in
Switzerland instead of an internee.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1944, while serving in the Army Air Corps, he crash landed  his  B-17  in
Switzerland and was interned from 9 December 1944 through 6 January 1945.

In support of his appeal, applicant submits a copy  of  a  letter  from  the
Switzerland’s State General verifying applicant’s internment status, a  copy
of his membership certificate of the  Swiss  Internees  Association,  and  a
copy and the narrative summary with proposed citation for the award  of  the
Distinguished Flying Cross.

The applicant’s submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active service in the Army Air Corps  as  a  pilot  on
23 October 1944.  He departed for the European Theater of  Operations  (ETO)
on 23 October 1944.  He was interned in Switzerland from 9 December 1944  to
6 January 1945. He departed the ETO on 24 February 1945 and arrived  in  the
Continental US on 12 March 1945.  He was honorably discharged on  3  October
1945 in the grade of  first  lieutenant  with  11  months  and  11  days  of
continental service and 4 months and 19 days of  foreign  service.   His  WD
AGO Form 53-55, Enlisted Record and Report of Separation, reflects  that  he
participated in the Rome-Arno  and  Rhineland  campaigns.   His  decorations
include the Distinguished Flying Cross, Air Medal with 1 oak  leaf  cluster,
European African Middle Eastern Ribbon (EAME) with 2 bronze stars.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPF recommends the application be denied.  DPF states that the  AFPC/JA
review of pertinent statutes, DoD instruction and written precedent  clearly
indicates that the medal should not be issued to military  members  held  by
nonbelligerents.  In addition, DPF states that the applicant is  not  listed
on the Army Repatriation and Family Affairs Division's  POW  database.   The
AFPC/DPF evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 23 July 2004, a copy of the Air Force evaluation  was  forwarded  to  the
applicant for review  and  comment.   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.   We  took  notice  of  the  applicant’s
contention that his status as an internee be  changed  to  prisoner  of  war
while interned in Switzerland.  The United States recognized Switzerland  as
a neutral country and not  an  enemy  during  World  War  II.   Under  long-
standing  customary  international  law,  and  provisions   of   the   Swiss
Constitution, Switzerland is a  permanently  neutral  country,  consistently
and  uniformly  recognized  as  such  by  all  nation’s.   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 contention, we are compelled to  abide  by
the Geneva Convention and international law pertaining to  neutral  nations,
and established U.S. foreign policy.  The personal sacrifice  the  applicant
endured for his  country  is  noted  and  the  recommendation  to  deny  the
requested relief in no way diminishes  the  high  regard  we  have  for  his
service; however, the applicant’s request cannot be favorably considered.

_________________________________________________________________

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 No. 04-01631  in
Executive Session on 15 September 2004, under  the  provisions  of  AFI  36-
2603:

            Mr. Laurence M. Groner, Panel Chair
            Ms. Jean A. Reynolds, Member
            Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, 4 May 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPF, dated 20 Jul 04.
    Exhibit E.  Letter, SAF/MRBR, dated 23 Jul 04.





                                   LAURENCE M. GRONER
                                   Panel Chair



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