IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140006013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests prisoner of war (POW) status for a period during which he was detained by the former Soviet Union.

2.  The applicant states, in effect, he was a passenger on an aircraft that was forced down by Soviet/Russian aircraft and was detained for 3 days.  He feels his detention qualifies him as a POW.  He also feels he was misled on numerous occasions as to his status during this event and he would like an official answer.

3.  The applicant provides:

* 4 letters from governmental agencies
* 4 Western Union telegrams
* a Time Magazine article
* printout from the Seaboard and Western/Seaboard World Airlines webpage
* newspaper article
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 9 February 1968.  His records show he completed basic combat and advanced individual training.  He was awarded military occupational specialty 64B (Heavy Truck Driver).  The highest rank/grade he attained while serving on active duty was specialist five/E-5.

3.  The National Personnel Records Center was unable to confirm his status as a POW.  They provided copies of Western Union telegrams indicating the aircraft in which he was traveling was forced to land at a Soviet base, then stating he had landed safely in Japan.  The applicant was referred to the U.S. Army Human Resources Command (HRC) to address eligibility for the POW award.  

4.  The Awards and Decorations Branch within HRC was unable to verify POW status, but provided a DD Form 215 amending the applicant's DD Form 214 to show the addition of:

* Army Good Conduct Medal
* Vietnam Service Medal (VSM) with one silver service star
* Meritorious Unit Commendation
* Republic of Vietnam Gallantry Cross Unit Citation with Palm Device

5.  His DA Form 20 (Enlisted Qualification Record) shows the applicant served in the Republic of Vietnam (RVN) from 30 June 1968 through 29 June 1969, then again from 2 September 1970 through 29 January 1971.  He has qualifying service for 6 campaigns.

6.  The applicant provides:

	a.  Time Magazine article, titled, "Diplomacy:  Interlude in Iturup," dated 
12 July 1968, which tells the story of Seaboard World Airlines Flight 253, the aircraft in which the applicant was traveling.  It essentially states:

* Flight 253 was transporting 214 United States service members bound for Vietnam
* Flight 253 flew off course into Soviet airspace
* a Soviet Mikoyan-Gurevich (MiG) aircraft appeared next to the aircraft, directing it to follow
* Flight 253 was forced to land
* the passengers were held on the Soviet base until a diplomatic solution was achieved (an apology from the U.S. Ambassador to the Soviet Ambassador), after which the aircraft was released to continue its journey

	b.  A narrative account, written by members of the flight crew, stating the circumstances when Seaboard World Airlines Flight 253 was forced by a Soviet MiG to land.  The account essentially affirms what was written in the Time Magazine article.

	c.  Western Union telegrams sent to the applicant's family apprising them the applicant's flight was forced to land, then giving an update stating his flight had safely landed in Japan.

	d.  local newspaper article reporting the applicant's detention and release.

7.  Joint Publication 1-02 (Department of Defense Dictionary of Military and Associated Terms) defines a prisoner of war (POW) as a detained person (as defined in Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949) who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy.

8.  Joint Publication 3-50 (Personnel Recovery) essentially states, because POW status is an international armed conflict concept, a service member who participates in an operation which falls short of an international armed conflict, upon capture, is not entitled to POW status.

9.  Title 38 (Code of Federal Regulations - Pensions, Bonuses, and Veteran's Relief) defines the periods of war and conflict.  No international armed conflict is shown to have taken place with the Soviet Union.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be granted POW status was carefully considered; however, there is insufficient evidence to support his request.

2.  In order to be granted POW status, a declaration of an international armed conflict between the former Soviet Union and the United States would need to have occurred.  Additionally, the applicant would have had to have been captured while participating in a military operation against an enemy.  Neither situation occurred in this case.

3.  Rather than supporting a contention of an armed conflict against a declared enemy, the evidence provided by the applicant clearly shows the flight on which he travelled was a transport plane which flew off course, causing a Soviet MiG to respond.  His detention was ended when the U.S. Ambassador apologized to the Soviet Ambassador for the flight having entered Soviet airspace.

4.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140006013





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ABCMR Record of Proceedings (cont)                                         AR20140006013



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