RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04359 

 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

He be awarded the Prisoner of War (POW) Medal. 

 

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APPLICANT CONTENDS THAT: 

 

His 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. 
Additionally, he is similarly situated those interned by neutral 
Russia during World War II who were subsequently awarded POW 
Medals. Therefore, he should also be eligible for the POW 
Medal. 

 

In support of his request, the applicant provides two supporting 
statements and copies excerpts from his military records, 
documents and correspondence related to 10 USC 1128, records 
describing the conditions Swiss internees were subjected to, and 
documents related to award of the POW Medal to Russian internees 
during World War II. 

 

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

 

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STATEMENT OF FACTS: 

 

The applicant is a former member of the Regular Air Force, with 
prior service in the Regular Army, who served on active duty 
from 24 June 1943 through 31 January 1964. 

 

On 24 April 1944, while serving as a bombardier on a mission to 
Augsburg, Germany, the applicant’s aircraft was forced to land 
in Switzerland due to mechanical problems. He was subsequently 
held as an internee in Switzerland from 24 April 1944 to 
11 November 1944. 

 

Following his release to military control, the applicant 
continued his career in the Air Force and was subsequently 
retired effective 1 February 1964 in the grade of lieutenant 
colonel. He served 21 years, 7 months, and 26 days on active 
duty. 

 

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BCMR LEGAL ADVISOR EVALUATION: 

 

The AFBCMR Legal Advisor recommends denial and provides a 
comprehensive review of the issues raised by the applicant. 
While this evaluation was originally intended to provide advice 
to the AFBCMR Executive Director regarding a request for 
reconsideration of a separate case, it addresses each of the 
applicant’s contentions in the instant case. The applicant 
argues that 10 USC 1128, paragraph (4) entitles anyone who is 
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) of the statute 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. 
The applicant believes 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 applicant, 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, 


the applicant’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, the applicant 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 C. 

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APPLICANT'S REVIEW OF BCMR LEGAL ADVISOR’S EVALUATION: 

 

In response, the applicant provides an account of his experience 
while interned at Wauwileermoos Military Prison located in 
Lucerne, Switzerland. 

 

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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. 

 

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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. 

 

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The following members of the Board considered AFBCMR Docket 
Number BC-2010-04359 in Executive Session on 6 Sep 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 


 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2010-04359 was considered: 

 

 Exhibit A. DD Form 149, dated 24 Sep 09, w/atchs. 

 Exhibit B. Applicant's Available Personnel Records. 

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

 Exhibit D. Letter, AFBCMR, dated 12 May 11. 

 Exhibit E. Letter, Applicant, dated 4 Jul 11, w/atchs. 

 

 

 

 

 

 Panel Chair