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M21-1, Part III, Subpart v, Chapter 1, Section C – Former Prisoner of War (FPOW) Status

Overview

 

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3

1.  General Information on FPOW Status

Introduction
This topic contains general information on determinations of FPOW status, including

Change Date

 March 23, 2015

III.v.1.C.1.a.Definition: FPOW

 A former prisoner of war (FPOW) is defined in 38 U.S.C. 101(32) as a person who, while serving in the active military, naval, or air service, was forcibly detained or interned in the line of duty by

  • an enemy government or its agents, or a hostile force, during a period of war, or
  • a foreign government or its agents, or a hostile force, under circumstances which the Secretary finds to have been comparable to the circumstances under which persons have generally been forcibly detained or interned by enemy governments during periods of war.

Note:  The Court of Appeals for Veterans Claims, in McBurney v. Shinseki, September 10, 2009, No. 08-4015, observed that the definition of “detain,” under the provisions of 38 U.S.C. 101(32) must include the elements of “restraint” and “custody.”

III.v.1.C.1.b.Circumstances Comparable to POW Detainment
Circumstances comparable to prisoner of war (POW) detainment include, but are not limited to
  • physical hardships or abuse
  • psychological hardships or abuse
  • malnutrition, and
  • unsanitary conditions.
Note:  In the absence of evidence to the contrary, consider that each individual in a group of detainees/internees encountered the same circumstances experienced by the group as a whole.
Reference:  For more information about the circumstances of detention or internment, see 38 CFR 3.1(y)(2).

III.v.1.C.1.c.Reason for Detention or Internment
Generally, the reason for detention or internment is immaterial when making FPOW determinations.
Exception:  Do not authorize FPOW status if a serviceperson was detained or interned by a foreign government for a violation of its laws.  Such a person is notentitled to FPOW status unless the charges were a sham intended to legitimize the detention/internment.

III.v.1.C.1.d.Assumption That Forcible Detention Occurred in the Line of Duty
Assume that forcible detention or internment occurred in the line of duty unless there is affirmative evidence showing that it was the proximate result of the serviceperson’s own willful misconduct.
References:

III.v.1.C.1.e.Holding Claimants to the Same Standards of Evidence
When considering claims under the criteria of M21-1, Part III, Subpart v, 1.C.1, hold all claimants to the same standards of evidence, regardless of the alleged captor.
Because 38 U.S.C. 101(32)(B) does not concede automatic recognition as FPOWs to any particular group, do not make unsupported assumptions.
If sufficient evidence comes to the attention of Department of Veterans Affairs (VA) Central Office (CO) demonstrating the eligibility of any particular group under this section of the law, CO will
  • make the information known to the regional offices (ROs), and
  • extend FPOW recognition to such groups, normally without the need for administrative decisions in individual cases.
Note:  If evidence indicates that certain individuals in such a group may have been detained or interned under more favorable circumstances than the rest of the group, administrative decisions are required.

III.v.1.C.1.f.Accepting Service Department Findings on FPOW Status
VA will accept the finding of the service department concerning FPOW status during wartime if detention or internment was by an enemy government or its agents.
Reference:  For the authority to accept service department findings of FPOW status, see 38 CFR 3.1(y)(1).

III.v.1.C.1.g.Required Administrative Decisions on FPOW Status

 VA has sole authority to determine FPOW status if

  • detention or internment occurred
    • in peacetime, or
    • during wartime by
      • allied governments or their agents
      • neutral governments, or
      • hostile forces, not necessarily representative of a recognized foreign government, or
    • a reasonable basis exists for questioning service department findings.
Make an administrative decision (favorable or unfavorable) on FPOW status in these cases.
Examples:  Some examples of governments where American personnel were detained include the following:
  • the Soviet Union in World War II (WWII), which was an allied country.
  • Switzerland and Sweden in WWII, which were declared neutral countries, and
  • Somalia and Kosovo, which contained hostile forces, but were notdesignated enemy countries during a period of war.

III.v.1.C.1.h.Declared Enemies of the United States and Periods of Hostilities
Use the table below for a list of the declared enemies of the United States and the dates on which war was declared or hostilities began for
  • World War I (WWI)
  • WWII
  • the Korean Conflict (KC)
  • the Vietnam Era
  • the Persian Gulf War, and
  • current overseas contingency operations.
Note:  Wherever possible, the date of cessation of hostilities is also indicated.  The latter date is useful for determining when a FPOW’s detention might have ended, but a FPOW’s liberation may have occurred before or after the official end of the fighting.
Period of War
Enemy Governments
Date Hostilities Began
Date Hostilities Ended
WWI
Germany
4/6/1917
11/11/1918
Austria-Hungary
12/7/1917
11/11/1918
WWII
Japan
12/8/1941
8/14/1945
Note:  Japan formally surrendered on 9/2/1945.
Germany
12/11/1941
5/8/1945
Italy
12/11/1941
9/3/1943
Note:  Italy formally surrendered on 9/29/1943.
Bulgaria
6/5/1942
9/8/1944
Hungary
6/5/1942
1/20/1945
Romania
6/5/1942
9/12/1944
KC
Notes:  Of the 7,140 FPOWs captured during the KC
  • 4,418 were returned to U.S. military control
  • a total of 3,745 were repatriated in the following two major operations:
    • “Little Switch” (April 21-May 3, 1953) for 149 seriously sick or wounded FPOWs, and
    • “Big Switch” (August 4-September 6, 1953) for most of the remaining 3,596 FPOWs, and
  • the other 673 FPOWs evaded capture or escaped prior to these two operations.
The People’s Republic of Korea (North Korea)
6/27/1950
6/26/1953
People’s Republic of China (Mainland China)
10/26/1950
6/26/1953
Vietnam Era
Notes:
  • A total of 653 Vietnam Era FPOWs were returned to U.S. military control, almost all during “Operation Homecoming” (January 27-April 4, 1973).
  • The members of the crew of the naval intelligence ship U.S.S. Pueblo are considered FPOWs.  This group of 80 crewmembers was detained by North Korea from January 23, 1968, until December 23, 1968.
Democratic Republic of Vietnam (North Vietnam)
8/5/1964
5/7/1975
National Liberation Front (Vietcong)
8/5/1964
5/7/1975
Persian Gulf War
8/2/1990

2.  Developing for FPOW Status

 

Introduction
This topic contains information on determining FPOW status, including

Change Date

 March 23, 2015

III.v.1.C.2.a.Affording Claimants an Opportunity to Present Evidence
Evidence from the service department on the circumstances of detention or internment may be difficult to obtain.  It is important that VA afford each claimant an opportunity to present all evidence in support of his or her claim.
To this end, clearly explain to claimants the
  • importance of buddy statements, and
  • evidentiary requirements that make “buddy statements” acceptable.

Reference:  For more information on buddy statements, see M21-1, Part III, Subpart iii, 2.E.6.b.

III.v.1.C.2.b.Evidence Requirements for Determining FPOW Status
Use the table below to determine what type of evidence is required for making an administrative decision on FPOW status.
Type of FPOW Status Claim
Required Evidence
  • FPOW status during peacetime.
  • FPOW status during wartime and the detaining power was an
    • allied or neutral power or its agents, or
    • a hostile force.
  • a legitimate question arises regarding the service department’s certification.
Facts and circumstances of detention or internment, in accordance with 38 CFR 3.1(y)(2).
Rationale:  The VA cannot accept service department findings in these circumstances, and is required to make an administrative decision.

 
FPOW status during wartime and the detaining power was an enemy government or one of its agents.
Certification of FPOW status from the service department, in accordance with38 CFR 3.1(y)(1).
Rationale:  Both the service department and VA can make administrative decisions in this circumstance.
References:  For more information on developing for

3.  Approval and Notification of FPOW Determinations

Introduction

 This topic contains information on the approval and notification of FPOW determinations, including

Change Date

 July 27, 2017

III.v.1.C.3.a.  FPOW Decision Format and Criteria
Follow the instructions in M21-1, Part III, Subpart v, 1.A.3 for
  • preparing an administrative decision, and
  • documenting the concurrence of the Veterans Service Center Manager.
Base the decision on the criteria outlined for peacetime FPOW decisions in 38 CFR 3.1(y)(2).
In the issue section of the decision, indicate whether or not detention or internment occurred in peacetime or wartime.

III.v.1.C.3.b.  Submitting an FPOW Determination for Approval
The Director of Compensation Service must approve RO determinations that grant or deny FPOW status before an RO may take action on the decision.
The table below contains instructions for submitting the RO determination to Compensation Service for approval.
Step
Action
1
Prepare the letter referenced in M21-1, Part III, Subpart v, 1.C.3.c and upload it into the corresponding electronic claims folder (eFolder).
2
Ensure all other relevant documentation has been uploaded into the eFolder.
3
Is the corresponding end product subject to National Work Queue routing?
  • If yes, proceed to the next step.
  • If no, proceed to Step 5.
4
  • Add the
    • Compensation Service Case Review tracked item, and
    • Compensation Service Review – POW special issue.
  • Disregard the remaining step in this table.
5
E-mail a request for approval of the determination toVAVBAWAS/CO/VBMS Advisory Requests.
Reference:  For more information on requesting guidance from Compensation Service, see M21-1, Part III, Subpart vi, 1.A.
III.v.1.C.3.c.  Format of Letter Requesting Compensation Service Approval of an FPOW Status Determination 
Follow the format of the letter below when preparing a letter that requests Compensation Service approval of an FPOW status determination.
DEPARTMENT OF VETERANS AFFAIRS
[RO name]
[RO address]
[current date]
Director                                                                          In Reply Refer To:
Compensation Service (211B)                                       [RO number]
Department of Veterans Affairs                                     [file number]
Central Office                                                                [Veteran’s name]
810 Vermont Ave. NW
Washington, DC 20420
SUBJECT:  Request for approval of FPOW status determination in accordance with 38 CFR 3.1(y)(3)
BRIEF STATEMENT/BACKGROUND INFORMATION AND REQUEST: [Identify the individual who is asserting the Veteran’s FPOW status and provide pertinent service information, to include the branch(es), date(s), and place(s) of the Veteran’s service.]
Example #1:  The Veteran served honorably in the Army from March 1944 to May 1946.  The surviving spouse filed a claim for death benefits shortly after the Veterans death, alleging that her husband was a POW.
Example #2:  The Veteran served honorably in the Marine Corps from March of 1945 to April of 1947.  He stated that he was a POW from June 12, 1945, to July 1, 1945.
EVIDENCE:  See the Evidence section of the corresponding administrative decision in the claims folder.  [Outline attempts that were made to confirm the Veteran’s FPOW status and the outcome of those attempts if this information is not included in the Evidence section of the administrative decision.]
DISCUSSION:  See the Reasons and Bases section of the corresponding administrative decision in the claims folder.
QUESTION(S) AT ISSUE:  May VA recognize the Veteran as an FPOW?
RECOMMENDATION:  See the Decision section of the corresponding administrative decision in the claims folder.
SIGNATURE:  ________________________
PRINTED NAME AND TITLE: ______________________

III.v.1.C.3.d.  Notifying the Claimant of the FPOW Determination
Use the table below to determine how to notify the claimant of the FPOW determination.

If the FPOW status is claimed in connection with …

Then …

And …
  • establishment of a service-connected disability, or
  • the current evaluation of a previously established SC disability, or
  • any other type of benefit
 inform the claimant of the allowance or denial of benefits by locally- generated letter

 

 

 

 give sufficient information to permit a completeunderstanding of

  • the decision reached
  • the reasons for the decision, and
  • the evidence used to reach the decision.
Reference:  For more information on decision notification requirements, see M21-1, Part III, Subpart v, 2.B.
Historical_M21-1III_v_1_SecC_3-23-15.doc May 16, 2019 183 KB
7-27-17_Key-Changes_M21-1III_v_1_SecC.docx May 16, 2019 64 KB
Transmittal-pt03_sp05_ch01_TS.doc May 16, 2019 140 KB
Change-March-23-2015-Transmittal-Sheet-M21-1MRIII_v_1_SecC_TS.docx May 16, 2019 41 KB
in Chapter 1 Administrative Decisions, Part III General Claims Process, Subpart v General Authorization Issues and Claimant Notification
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