RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04213 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His deceased brother be awarded the Prisoner of War (POW) Medal. 

 

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APPLICANT CONTENDS THAT: 

 

His deceased brother’s internment at the Wauwilermoos Swiss 
Federal Prison during World War II makes him eligible for the 
POW Medal in accordance with Title 10, United States Code, 
Section 1128 (10 USC 1128). The statute requires the Secretary 
concerned to issue a POW medal to any person who was taken 
prisoner and held captive by foreign armed forces that are 
hostile to the United States, under circumstances which the 
Secretary finds to have been comparable to those under which 
persons have generally been held captive by enemy armed forces 
during periods of armed conflict. His captors were pro-Nazi 
forces hostile to the United States, and the conditions of his 
captivity were extremely harsh and comparable to or worse than 
those in POW camps in Germany. 

 

In support of his request, the applicant provides a 20 page 
statement of counsel and copies of excerpts from his deceased 
brother’s military records, documents and correspondence related 
to 10 USC 1128, and records describing the conditions Swiss 
internees were subjected to during World War II. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records were apparently 
located in the area most heavily damaged in the fire at the 
National Personnel Records Center in 1973. Documents provided 
by the applicant indicate the deceased former member served on 
active duty with the Army Air Corps as a B-24 co-pilot from 
12 Apr 43 through 24 Jan 47. 


On 18 Mar 44, while on a bombing mission over Germany, the 
deceased former member’s aircraft suffered severe combat damage 
after making two consecutive passes at their target and was 
forced to land at an airfield in Switzerland where he was 
interned by Swiss authorities. After a failed prison escape, he 
was interned at the Wauwilermoos Federal Prison, until his 
transfer to the American internment camp at Adelboden on 
17 Apr 44. He was interned at a variety of facilities until his 
successful escape on 28 Aug 44. 

 

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the AFBCMR Legal Advisor 
which is attached at Exhibit B. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

The AFBCMR Legal Advisor recommends denial and provides a 
comprehensive review of the issues raised by the applicant. 
According to 10 USC 1128(a), the Secretary concerned shall issue 
a prisoner-of-war medal to any person who, while serving in any 
capacity with the armed forces, was taken prisoner and held 
captive— 

 

 (1) while engaged in an action against an enemy of the 
United States; 

 (2) while engaged in military operations involving conflict 
with an opposing foreign force; 

 (3) while serving with friendly forces engaged in an armed 
conflict against an opposing armed force in which the United 
States is not a belligerent party; or 

 (4) by foreign armed forces that are hostile to the United 
States, under circumstances which the Secretary concerned finds 
to have been comparable to those under which personnel have 
generally been held captive by enemy armed forces during periods 
of armed conflict. 

 

Counsel argues that 10 USC 1128 (a)(4) entitles anyone who was 
held in conditions determined to be similar to those experienced 
by POWs during a period of armed conflict is entitled to the POW 
Medal. However, this argument ignores the plain language of the 
statute which is controlling. First, the statute in paragraph 
(a) requires the member to be “taken prisoner and held captive;” 
however, the applicant was detained, or “interned,” not “taken a 
prisoner and held captive.” Second, provisions of paragraph (4) 
of the statute address award of the POW medal in non-armed 
conflict situations (i.e. the Pueblo Incident). The provisions 
of paragraphs (1) through (3) continue to apply in situations 
involving armed conflict. Even if paragraph (4) were to be 
applied during a period of armed conflict, this provision 
requires the member to be held by a “foreign armed force hostile 
to the United States,” which Switzerland was not. Counsel 
argues that 10 USC 1128 does not require the entire country to 


be considered hostile for this provision to apply. However, 
this analysis is incorrect as the adjective “hostile” in the 
statute modifies the words “foreign armed forces” and therefore 
cannot be split. The requirement to be held by a hostile 
foreign force is not met when a belligerent, such as the 
deceased former member, is held by a member of a neutral foreign 
force, even if the member of the neutral foreign force is 
personally hostile to the interned belligerent. Furthermore, 
Counsel’s argument the broader definition of POW in Title 38 
should govern the 10 USC 1128 definition of a POW for award of 
the POW Medal is inaccurate and not persuasive for three 
reasons. First, the argument that the 1981 amendment to 
Title 38 is indicative of Congressional intent in modifying the 
Title 10 language in 1989 requires one to conclude that Congress 
was prescient about what it would enact some eight years later. 
Secondly, if Congress wanted to use the more liberal standard 
from the Title 38 provision when amending Title 10 in 1989, it 
could simply have used the same language. Third, it is entirely 
reasonable to conclude that Congress would create a more liberal 
standard in Title 38 in order to provide priority VA medical 
care for veterans based upon maltreatment, versus the more 
protective definition of Title 10 which serves to maintain the 
prestige of a military award. Finally, Counsel argues the 
AFBCMR has granted POW medals under similar circumstances in the 
past and should do so in this case. Although the AFBCMR is not 
required to follow precedent, it does strive for consistency. 
The vast majority of the POW medal applications involving 
internees in Switzerland have been denied based upon their 
internee status by a neutral country, but one or two such 
requests were approved. Regardless of the Board’s action in 
these two unique and isolated cases, the AFBCMR’s authority to 
award a medal in contradiction of the statutory criteria is 
questionable, especially since Congress amended the statute in 
1989 and did not delete the “taken prisoner and held captive” 
requirement. 

 

A complete copy of the AFBCMR Legal Advisor’s evaluation is at 
Exhibit B. 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant reiterates the Wauwilermoos camp was infamous as a 
camp where the conditions were just as severe as those in the 
worst prisoner of war camps in Germany. In support of his 
response, the applicant provides copies of records related to 
his deceased brother’s internment (Exhibit D). 

 

The applicant’s representative refutes virtually every point of 
the AFBCMR Legal Advisor evaluation, indicating the analysis of 
the differences between Title 10 and Title 38 is based on an 
outdated law which is no longer controlling for Title 38. 
Additionally, the requirement to be “taken prisoner” does not 
preclude consideration for captivity that does not meet a 


subjective definition of the term. The terms “taken prisoner” 
are simply meant to convey a deprivation of liberty, nothing 
more. The plain meaning of the word “prisoner” does not require 
captivity by an enemy on a battlefield. Finally, while the 
claim the Secretary of the Air Force has made no such finding 
about whether internees of Switzerland meet the criteria of 
comparable circumstances to POWs held by declared enemies is 
technically correct, the Secretary has authorized the POW Medal 
for many captives of neutral countries during armed conflict. 

 

A complete copy of Counsel’s response is at Exhibit E. 

 

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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 his 
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 camps 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 at Wauwilermoos and 
notwithstanding the previously approved POW medals to World 
War II internees of neutral countries and of the individuals 
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. The personal sacrifice the applicant 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 or authority. Therefore, we have 
no other recourse but to deny this request. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; 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-2010-04213 in Executive Session on 6 Sep 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 11 Nov 09 [sic], w/atchs. 

 Exhibit B. Applicant's Available Personnel Records. 

 Exhibit C. Letter, AFBCMR Legal Advisor, dated 2 May 11. 

 Exhibit D. Letter, AFBCMR, dated 19 Jul 11. 

 Exhibit E. Letter, Applicant, dated 30 Jul 11, w/atchs. 

 Exhibit F. Letter, Counsel, dated 9 Aug 11. 

 

 

 

 

 

 Panel Chair