Justice delayed is justice denied: DAV fights to correct 48-year error for former POW.

For most people, its three strikes and you're out, but not James B. Cheney. After the Department of Veterans Affairs continued to deny his claim for residuals of a herniated disc and neuritis, it got him headed in the right direction--toward the DAV.

"A friend of mine said, 'Jim, you're going about this claim the hard way. You need to get a service organization to represent you.' I'd been denied since 1958, so I decided to do some research and discovered the DAV was the best organization to help in my situation. I've never regretted that decision," Cheney said.

Jim Cheney was raised on the family farm near Briggsdale, Ohio, and was attending Ohio State University (OSU) when he was accepted into the Army Air Corps flight school in 1941. By the summer of 1942 he had graduated from flight school at Ellington Field, Texas, and received a second lieutenant commission in the Army Air Corps. He was later promoted to captain and assigned to combat duty with the 8th Air Force in England as a member of the 376th Fighter Squadron escorting bombers on raids across the English Channel to Europe.

The six-foot, two-inch farm boy from Ohio flew his first combat mission the first week of January 1944. As he continued piling up the missions, the P-51 Mustang arrived in April, and he and other pilots took turns learning to fly the "beautiful piece of machinery."

On his 75th mission, Cheney, now a major commanding the 376th, wasn't aware his aircraft took a round while strafing a convoy until his wingman radioed to tell him he was putting out smoke or oil. Cheney's eyes immediately went to the oil pressure gauge. It was pulsing and went to zero as he watched. Corrective action didn't work. The engine caught fire, and Cheney had to bail out.

He was wearing the smaller 24-foot diameter parachute to allow his large frame to fit in the P-51. As he descended more quickly using the smaller chute, he was being fired at from the ground. He pulled on the chutes risers to move from side to side. The maneuver also swung him from side to side making him less of an easy target, but he hit the ground hard, biting his tongue severely.

The first person to arrive at his site was a farmer who motioned to his helmet, Cheney gave it to him and the farmer ran off. Moments later a German corporal came running toward him yelling. Cheney didn't understand what the man was saying until the corporal pointed a pistol at his head and said, "Pistole." Unarmed, he said, "Nein," one of the few German language words he knew at the time, and with that he became a prisoner of war.

Cheney was taken to the corporal's headquarters where he was searched and his leather flight jacket confiscated. A German major and lieutenant interrogated him. When he continued to divulge only his name, rank and serial number, he was told they would get the information they wanted if they had to beat it out of him.

Cheney was then pushed into a hall lined on both sides with German soldiers holding clubs of various kinds. The officers went back into the office and closed the door. As the door latch clicked into place the beating began.

He was knocked out several times. Each time he came to, he would be kicked until he regained his feet, then the beating started again. He struggled on toward a doorway at the end of the hall. Numbed by the beating, he made it to the end of the hall and the top of the stairway on the second floor. Gripping a newel post to struggle down the steps, the jaw of a soldier came into view. He swung at the tormentor, connected, and he and the soldier tumbled down the steps. He was dragged to his feet and held between two soldiers, while the man he had struck wrapped a belt around his hand and beat Cheney again.

He was returned to the major's office. Still refusing to talk, he was taken outside and placed in an open jeep where soldiers beat him with the backside of shovels.

"I realized I was dying," Cheney said. "I raised my arms over my head and said, 'My God in heaven, help me!"

An amazing thing happened. The soldiers backed away and dropped their shovels. The beating ended and even though the major ordered the men to begin again, they refused. Cheney realized his plea had been answered. The Germans had understood him.

His ordeal was far from over. His back injured, head fractured, eyesight impaired, aching, bruised and swollen, Cheney was taken first to Dusseldorf, then on to Frankfort for interrogation. He was hospitalized for a short time and then on to Stalag Luft 3 in northeast Germany.

Later, due to the Russian advance, the prisoners were moved to Stalag 7-A, a prison camp near Munich. During the transfer Cheney escaped but was captured and returned to Stalag 7-A where he remained a POW until the camp was liberated by American soldiers on April 29, 1945.

Cheney returned to the U.S. and was promoted to Lieutenant Colonel shortly before leaving active duty in the fall of 1945.

He returned to OSU to study finance and economics. After graduating, Cheney was employed for two years as an investment counselor to the board of directors at a major insurance company. He later held a variety of positions until starting his own business as a manufactures representative for metal products, which he continued to operate until his retirement.

Cheney returned to the sky for two years in 1954 with the Ohio Air National Guard where he flew F-84 and T-33 jet aircraft and served as the Operations Officer.

In the summer of 1992 Cheney's life changed when he met Linda Palmer.

Linda and her two sisters operated a landscape business. Cheney had hired them to do some work, and when he met Linda he was infatuated. The love between Linda and Cheney grew over the years and they were married on July 1, 1995.

Cheney joined the DAV in 1980, but he continued to try to resolve his claim independently.

"I would go to the VA and not tell the DAV what I had done," Cheney said. "Eventually, I realized I needed to keep the DAV informed of everything to be successful."

In June 2002 Cheney reopened his claim seeking service connection for a back injury, and was awarded entitlement effective the date of the reopened claim. He appealed the effective date, seeking entitlement to service connection dating back to the 1958 denial.

NSO Shane L. Liermann, Assistant Supervisor for the DAV National Service Office in Cleveland, became involved in the claim in 2005 when the Board of Veterans Appeals (BVA) remanded his appeal to the Appeals Management Center (AMC).

I reviewed his appeal and wrote the written argument before the appeal returned to the Board of Veterans Appeals.

At BVA National Appeals Officer Michael G. Bargmann (now retired) reviewed the appeal, advising NSO Liermann that they were on the right track. Bargmann also said he believed a clear and unmistakable error (CUE) existed in a previous BVA decision and filed the CUE at the Board.

While reviewing Cheney's claims file for preparation of argument before the Board, Bargmann recognized that one alternative to obtain an earlier effective date was to analyze the basis for the Board denial of service connection of that disability in 1958.

In his argument, NSO Bargmann included the statement of a flight surgeon who treated Cheney during military service. The December 1956 statement, attested that Cheney rejoined the group after release from a German prison camp and that he was suffering from the effects of the flogging he received, particularly in his back. In a subsequent May 1958 statement, the surgeon indicated he treated the veteran for injuries sustained while a prisoner of war, including the lower back. The flight surgeon stated an opinion that the subsequent history of a herniated disc could be traced directly to the treatment Cheney received as a POW. He concluded there could be no doubt Cheney's condition resulted from the prisoner of war injuries sustained. I "I had several conversations with Mr. Cheney regarding the appeals process and the expected outcome and decision of the appeal," NSO Liermann said. "Mr. Cheney often expressed his appreciation of the DAV's help with his claim and appeal. He felt he was getting the best representation and he would get his due."

"If I were advising a veteran about a claim, I would say, 'Join the DAV as soon as possible, and keep your DAV representative informed,'" Cheney said. "I kept struggling on my own getting nowhere and would have given up if not for the DAV."

Cheney got his due in a BVA decision of April 2006. It stated, "The motion to reverse and revise the Dec. 17, 1958, Board decision on the grounds of clear and unmistakable error, with respect to the denial of service connection for residuals of a herniated disc and neuritis, is granted."

After 48 years the fighter pilot with the DAV as his wing-man had won another dogfight.