RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-02199
                                       INDEX CODE:  107.00
XXXXXXXXXXXXXXXXXX                      COUNSEL: NONE

                                             HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  24 January 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to show he was a prisoner-of-war  (POW)  and  he  be
awarded the POW Medal.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was detained by guards at the border of the Congo and Zambia for one  day
until the United States Consulate had him released.

In support of his application, the applicant submits a  personal  statement,
facts about the POW Medal, his  Officer  Evaluation  Report  (OER)  for  the
period 22 August  1967  through  25  July  1968,  and  three  statements  of
support.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s  DD  Form  214,  Report  of  Separation  from  Active  Duty,
reflects he entered active duty on 30 October 1951.   He  was  progressively
promoted to the grade of colonel (0-6) with a date  of  rank  of  10  August
1972.  His OER, closing 25 July 1968, indicates the applicant completed  two
30-day tours in the Congo as an Operations Officer and  aircraft  commander.


On 30 April 1974, the applicant was honorably released from active duty  for
voluntary retirement and retired effective 1 May 1974.  He served 22  years,
6 months, and 1 day on active duty with 5 years, 6 months, and  16  days  of
foreign service.

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AIR FORCE EVALUATION:

AFPC/DPFC recommends denial of the applicant request for POW  status.   DPFC
states Title 38, Section 101 (32), attachment 1, of the United  States  Code
(USC), 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 the 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 under which persons  have
generally been forcibly detained or interned  by  enemy  governments  during
periods of  war.”   Department  of  Defense  Publication  1-02  (as  amended
through 14 April 2006) defines “prisoner of war” as  a  detained  person  as
defined by 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 elude capture.”   It  is  DPFC’s
opinion  that  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.

DPFC states that since the United States was not at war with  the  Congo  or
Zambia, the applicant was never a POW as defined in Title  38,  Section  101
(32).

The DPFC evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was  forwarded  to  the  applicant  on  4
August  2006,  for  review  and  comment  within  30   days   (Exhibit   D).
Subsequently, the applicant temporarily withdrew his  application  until  he
could respond to the Air Force advisory opinion.

On 7 May 2007, the applicant’s widow, responded with notification  that  her
husband passed away on 19 January 2007 and, requested the Board  proceed  to
process her husband’s appeal.

Her response, with attachment, 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 reviewing  the  evidence  of  record
and the applicant’s  submission,  we  found  no  evidence  to  indicate  the
individual is eligible for the award of the POW Medal.  Therefore, we  agree
with the opinions and recommendations of the Air  Force  office  of  primary
responsibility  and  the  Administrative  Law  Division,  and  adopt   their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an error or injustice.  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.  Nevertheless, in view of the above, we find no basis to  favorably
consider this application.

_________________________________________________________________

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 this application in  Executive
Session on 28 June 2007 and 12 October 2007, under the provisions of AFI 36-
2603:

                 Ms. B. J. White-Olson, Panel Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Patricia R. Collins, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2006-02199:

      Exhibit A.  DD Form 149, dated 27 May 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPFC, dated 31 Jul 06.
      Exhibit D.  Letter, SAF/MRBR, dated 4 Aug 06.
      Exhibit E.  Applicant’s Rebuttal, dated 7 May 07.




                                                   B.J. WHITE-OLSON
                                                   Panel Chair