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AF | BCMR | CY2009 | BC-2008-02665
Original file (BC-2008-02665.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-2008-02665
                                        INDEX CODE:  130.00
    Xxxxxxxxxxxx                  COUNSEL:  NO
                                        HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was kept in three camps in Switzerland.  When he  tried  to  escape  from
one  of  the  camps,  he  was  put  in  a  punishment  camp  in   Hunenberg,
Switzerland.  He was a prisoner and was harshly punished for his attempt  to
escape.

In support of his request, applicant provides a copy of his WD AGO Form  53-
55, Enlisted Record and Report of Separation, a list of  prisoners  at  Camp
Hunenberg, a copy of an escape attempt  military  police  report  and  other
associated documents pertaining to his internment.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active service in  the  Army  Air  Corps  as  a  radio
operator mechanic gunner on 19 Sep 42.  He was interned in Switzerland  from
8 Jun 44 to 24 Mar 45.  He was honorably discharged  on  3  Oct  45  in  the
grade of master sergeant with 1 year, 8 months and 12  days  of  continental
service and 1 year, 5 months and 14 days of foreign  service.   His  WD  AGO
Form 53-55, reflects that  he  participated  in  the  Air  Offensive  Europe
campaign.  His decorations  include  the  Air  Medal  with  three  Oak  Leaf
Clusters, European African Middle Eastern  Ribbon  (EAME)  with  one  bronze
star, American Theater Service Ribbon and the Good Conduct Service Ribbon.

_________________________________________________________________



AIR FORCE EVALUATION:

AFPC/DPWC recommends denial.  DPWC states that  the  Department  of  Defense
Joint Publication 1-02 defines "POW" as a  detained  person  as  defined  in
Articles 4 and 5 of the Geneva  Convention  Relative  to  the  Treatment  of
Prisoner of War of August 12, 1949.  In particular, one who,  while  engaged
in combat under orders of his or her government, is captured  by  the  armed
forces of the "enemy."  In contrast, "interned" is defined as "the  casualty
is definitely known to have been taken into custody  of  a  non  belligerent
foreign power as a result of and  for  reasons  arising  out  of  any  armed
conflict in which the Armed Forces of the United States are engaged."   DPWC
states that there is understanding that some internees  were  mistreated  at
the punishment camps; however, the mistreatment at punishment camps did  not
create a condition in which Switzerland lost its neutrality  and  became  an
opposing or  foreign  armed  force  hostile  to  the  United  States.    The
complete AFPC/DPWC evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides the definition of a former POW as  defined  by  Title
38 U.S.C.  He states his decision to go through this process was  to  change
his category  at  the  Veteran  Affairs  Medical  Center.   The  applicant's
complete letter 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.   We  took  notice  of  the  applicant’s
contention that his status as an internee should be changed  to  a  prisoner
of war status while he was interned in  Switzerland.   However,  the  United
States recognized Switzerland as a neutral  country  and  not  as  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  nations.
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  our
recommendation to deny the requested relief in no way  diminishes  the  high
regard we have for his service; however, based on  the  evidence  presented,
favorable consideration of the applicant’s request is not warranted.

_________________________________________________________________

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-2008-02665
in Executive Session on 5 Nov 08, under the provisions of AFI 36-2603:

            Ms. Charlene M. Bradley, Panel Chair
            Mr. Garry G. Sauner, Member
            Mrs. Lea Gallogly, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2008-
02665 was considered:

    Exhibit A.  DD Form 149, dated 24 Oct 07, w/atchs.
    Exhibit B.  Letter, HQ AFPC/DPWC, dated 9 Sep 08, w/atch.
    Exhibit C.  Letter, SAF/MRBR, dated 19 Sep 08.
    Exhibit D.  Letter, Applicant, dated 8 Oct 08.





                                   CHARLENE M. BRADLEY
                                   Panel Chair



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