RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00736 

COUNSEL: 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her late father be awarded the Prisoner of War (POW) Medal. 

 

_______________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

Her father is entitled to the POW Medal because of his illegal 
incarceration under harsh conditions in prison camp Wauwilermoos, 
Switzerland, during World War II. He was incarcerated under 
circumstances “comparable to those under which persons have 
generally been held captive by enemy armed forces during periods 
of armed conflict,” as required by Public Law (PL) 101-189, dated 
29 November 1989. The treatment he received makes him eligible 
for consideration for the POW medal. 

 

In support of her appeal, the applicant provides copies of her 
late father’s death certificate and a POW Medal recommendation 
with attachments from the applicant’s counsel. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The decedent is a former member of the Army Air Corps who served 
on active duty from 29 May 1943 to 4 November 1945 as a 
Bombardier. On 27 May 1944, during a flying mission over 
Germany, the decedent’s aircraft took direct hits from a German 
fighter aircraft and suffered engine failure and significant fuel 
loss. The aircraft was able to land at Dubendorf Airfield in 
Zurich, Switzerland, and the entire crew was interned. After a 
failed prison escape, the decedent was interned at the 
Wauwilermoos Prison in Switzerland. Following his return to 
United States Military Forces control, he was treated on an 
outpatient basis until his discharge from active duty. On 
4 November 1945, he was honorably released from active duty in 
the grade of first lieutenant (O-2). He served 2 years, 
5 months, and 6 days on active duty. A National Archives and 
Records Administration Military Personnel Record Finding Aid 


Report indicates the decedent’s original records were destroyed 
in the 1973 fire at the National Personnel Records Center (NPRC) 
in St. Louis, Missouri. 

 

The remaining relevant facts, extracted from the decedent’s 
available military service records, are contained in the Air 
Force evaluations at Exhibits B and C; and the BCMR Legal 
Advisor’s evaluation at Exhibit G. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPWC recommends denial of POW status. DPWC states 
Department of Defense Joint Publication 1-02 (as amended through 
22 March 2007), Attachment 1, 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 
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.” 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. 

 

DPWC indicates that according to documents in the decedent’s 
official military personnel record and confirmed in the National 
Archives World War II database, the decedent was detained in 
Switzerland as an internee until his return to military control. 
Moreover, as the Air Force did not become a separate branch of 
military service until September 1947, DPWC coordinated with the 
United States Army and they have confirmed the decedent is not 
listed on the Army Repatriation and Family Affairs Division POW 
database. Some internees were mistreated at the Switzerland 
punishment camps; however, the mistreatment did not create a 
condition in which Switzerland lost its neutrality and became an 
opposing or foreign armed force hostile to the United States. 

 

Soldiers who endured a similar experience as a detainee or an 
internee at various camps in Switzerland by itself do not qualify 
for POW status. POW status to internees in Switzerland requires 
the Secretary of the Air Force to determine that Swiss officials 
were acting on behalf of a foreign armed force hostile to the 
United States during World War II, in accordance with Department 
of Defense 1348.33M (Manual of Military Decorations and Awards), 
paragraph C6.2 and Title 10 United States Code, Section 
1128(a)(4) (Attachments 4 and 5 respectively). DPWC defers to 


AFPC/DPSIDR to determine, based on their criteria, whether award 
of the POW Medal is warranted. 

 

The complete DPWC evaluation is at Exhibit B. 

 

AFPC/DPSIDR recommends denial. DPSIDR states that after a review 
of the applicant’s available records, provided documentation, as 
well as the DPWC advisory, they must recommend disapproval for 
entitlement to the POW Medal as Switzerland was not considered to 
be a foreign armed enemy of the United States during World War 
II. 

 

The complete DPSIDR evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

COUNSEL’S REVIEW OF AIR FORCE EVALUATIONS: 

 

By obtaining an advisory opinion from the Casualty Matters 
Division (AFPC/DPWC), the requirements for the medal are confused 
with repatriation definitions that are irrelevant to the award. 
The eligibility requirements of the POW Medal are not based on 
the definitions contained in Joint Publications 1-02, and they 
are also not comparable to status definitions in the Geneva 
Convention. Most of what is contained in the AFPC/DPWC advisory 
opinion is incorrect and should be discarded. 

 

In the absence of relevant advisory opinions, he has provided 
historical and legal evidence which shows how internees at 
Wauwilermoos prison were treated, documents that the POW Medal 
was intended to be awarded to internees of neutral countries, and 
also demonstrated how the United States Air Force has awarded the 
medal to internees in the past. 

 

The AFPC Recognition Branch (AFPC/DPSIDR) staff did not 
appropriately research the award criteria or correctly cite the 
law governing eligibility for the POW Medal. They have 
misconstrued the amended requirement of Title 10, United States 
Code, Section 1128 (Public Law 101-189) for captors to be 
treating the American service members in a hostile manner. Only 
the original 1985 version of the POW Medal statue (Public Law 99-
145) authorized the medal as an automatic entitlement for those 
held by a declared enemy. In contrast, Public Law 101-189 
exception to captivity by a declared enemy only requires 
captivity by someone “hostile to the United States, under 
circumstances which the Secretary concerned finds to have been 
comparable to those under which persons have generally been held 
captive by enemy armed forces during periods of armed conflict.” 
The DPSIDR memorandum has erroneously substituted the word 
“enemy” with the word “hostile.” Apparently they do not know the 
difference between the two terms, nor does their office know the 
original statue was modified in 1989 with the explicit objective 


of removing the requirement that the captor of a POW must be “an 
enemy of the United States.” 

 

The counsel’s complete rebuttals, with attachments, are at 
Exhibits E and F. 

 

_________________________________________________________________ 

 

EVALUATION FROM THE BCMR LEGAL ADVISOR: 

 

The BCMR Legal Advisor recommends denial. The BCMR Legal Advisor 
states this application is another development in a long-running 
disagreement with an active duty Army officer who teaches history 
at West Point concerning the entitlement to the POW Medal for 
individuals who were interned by Swiss authorities during World 
War II. The captain has written in support of this application. 

 

In January 2010, the BCMR Legal Advisor wrote a comprehensive 
review of the issues the captain has repeatedly raised. The 
opinion was addressed to the AFBCMR Executive Director to advise 
him about a request for reconsideration of the captain’s own 
previously-submitted application on behalf of his grandfather. 
The Director denied that reconsideration request. 

 

Based on the captain’s direct communication with the Secretary of 
the Air Force General Counsel (SAF/GC), it has reviewed the 
advisory and concurs that the captain’s analysis is wrong 
primarily because in accordance with the first rule of statutory 
construction, the plain language of the statue controls. SAF/GC 
recognizes the Air Force gave POW Medals to certain members held 
in Siberia, but it finds that situation distinguishable given the 
realities of the Cold War and not controlling as to this 
application in any event. 

 

The applicant’s advisor has repeatedly been told that until the 
office of the General Counsel opines differently, panels will be 
advised to deny such applications as inconsistent with 
congressional intent in this area as reflected in plain language 
of the statue passed. 

 

The BCMR Legal Advisor has provided his January 2010 legal 
opinion for the Board’s review. 

 

The complete BCMR Legal Advisor’s evaluation, with attachment, is 
at Exhibit G. 

 

_________________________________________________________________ 

 


COUNSEL’S REVIEW OF THE BCMR LEGAL ADVISOR’S EVALUATION: 

 

A copy of the BCMR Legal Advisor’s was forwarded to the 
applicant’s counsel on 27 October 2010. 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. After a 
thorough and careful review of the evidence of record and the 
applicant's extensive submission, we are not persuaded that the 
former member’s record should be corrected to reflect he was a 
Prisoner of War (POW) and awarded the POW medal. Notwithstanding 
the fact that some internees were mistreated at the punishment 
camp and the commandant of Wauwilermoos was tried after the war 
for his misconduct in connection with the mistreatment, the 
mistreatment at the Wauwilermoos camp did not create a condition 
in which Switzerland lost its neutrality and became an opposing 
or foreign armed force hostile to the United States. We are 
aware that under U.S. foreign policy, Switzerland was recognized 
as a neutral country and not an enemy of the United States during 
World War II. Under long-standing customary international law, 
and provisions of the Swiss Constitution, Switzerland is a 
permanently neutralized 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 strong and 
convincing arguments and supported documentation of inappropriate 
treatment of internees while at Wauwilermoos and notwithstanding 
the previously approved POW medals to World War II internees of 
neutral countries and of the individual cited in the application, 
this Board is compelled to abide by the Articles of the Geneva 
Convention and international law pertaining to neutral nations, 
and established U.S. foreign policy. We are though, in agreement 
with the applicant’s plight to have these American airmen 
recognized who suffered imprisonment in service to their country. 
However, we believe this issue is a matter of policy that should 
be raised to the appropriate level for consideration and possible 
resolution. The personal sacrifice the former member endured for 
our country is noted; however, insufficient evidence has been 
presented to warrant corrective action. Based on the rationale 
discussed above we do not believe that changing such matters of 


U.S. foreign policy and firmly established international practice 
is within our purview of authority. Therefore, we have no other 
recourse but to deny this request. 

 

_________________________________________________________________ 

 

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 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-2010-00736 in Executive Session on 14 December 2010, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2010-00736: 

 

 Exhibit A. DD Form 149, dated 13 Sep 09, w/atchs. 

 Exhibit B. Letter, AFPC/DPWC, dated 16 Apr 10. 

 Exhibit C. Letter, AFPC/DPSIDR, dated 3 May 10. 

 Exhibit D. Letter, SAF/MRBR, dated 4 Jun 10. 

 Exhibit E. Letter, Counsel, dated 27 Jun 10, w/atchs. 

 Exhibit F. Letter, Counsel, dated 24 Jul 10. 

 Exhibit G. Letter, BCMR Legal Advisor, dated 20 Oct 10, 

 w/atchs. 

 Exhibit H. Letter, AFBCMR, dated 27 Oct 10. 

 

 

 

 

 

 Panel Chair