AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

SEP  2  4  1998 

;. 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02282 

HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

His military personnel records be changed to reflect a sex/gender 
marker of female. 

APPLICANT CONTENDS THAT: 

His  records bearing  the  sexdgender marker  of  female,  conflicts 
with  all  existing  local,  state, and  federal  records creating  a 
situation where his  civil, constitutional, and  human rights are 
violated; and the health and welfare of his family are placed in 
j eopardy . 
In support of the appeal, applicant submits a personal statement, 
Court Order of name change, birth certificate, two affidavits by 
physicians,  Memo  Command-Directed  Outpatient  Mental  Health 
Evaluation, dated 19 May  1997, Record of Non-Judicial Punishment 
Proceedings, and other documentation. 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

The  applicant's  gender  as  documented  in  Air  Force  records  was 
based  on  the  Standard  Form  88,  Report  of  Medical  Examination, 
dated 5 October 1978, which was initiated at the time of initial 
enlistment and the enlistment physical the member received.  The 
applicant provided  the  information contained  in  Item  7  of  the 
Standard Form 88 and he listed male under the gender category at 
the time of the initial physical and entrance processing. 

At  initial enlistment all  personnel  are  required  to  complete a 
Standard Form 93, Report of Medical History, which reflects their 
assessment  of  their  health  and  indicating  any  diseases  or 
injuries they have suffered.  He did not answer or respond to the 
questions  listed  in  item  12  of  this  form  that  pertained  to 
females only. 

97-02282 

On  27  March  1997,  applicant  legally  changed  his  name  to  Mary 
Ellen Schuler pursuant to an order by the presiding judge for the 
45th Civil District Court, Bexar County, Texas.  Included in the 
order was authorization for "public and private agencies with.'the 
jurisdiction of  the  court to  amend  vital  statistic information 
gender markers from masculine to feminine ...." 
On  1  May  1997,  applicant  was  directed  to  undergo  a  command 
directed mental health evaluation at Wilford Hall Medical Center, 
Lackland AFB, TX.  He was diagnosed as having  a Gender Identity 
Disorder  (GID). 

On  13  May  1997,  subsequent  to  his  name  and  gender  change  in 
Texas, the Commonwealth of Pennsylvania issued a Certification of 
Birth, that lists applicant as female. 

On  19  May  1997,  applicant  changed  his  name  in  the  Defense 
Eligibility Enrollment Reporting System  (DEERS) system; however, 
his gender was not changed. 

On 31 July 1997, in light of the GID diagnosis, the applicant was 
considered  for  medical  retirement  or  discharged  by  a  Medical 
Evaluation Board  (MEB).  The MEB recommended his return to duty. 

The  applicant was  notified  of  his  commander's intent  to  impose 
nonjudicial punishment  upon him  for appearing  in public  dressed 
as  a  female.  Wearing  a prosthesis, a  long haired  women's wig, 
lipstick, eye make-up, and a woman's blouse, jeans and sandals. 

After  consulting with  counsel, applicant waived  his  right  to  a 
trial  by  court-martial,  requested  a  personal  appearance  and 
submitted a written presentation. 

On  14  February  1997,  his  commander  imposed  the  following 
punishment:  reprimand.  Applicant did not appeal the punishment. 
The  Article  15  was  filed  in  his  Unfavorable  Information  File 
(UIF) . 
The  applicant was  notified  of  his  commander's intent  to  impose 
nonjudicial punishment  upon him  for appearing  in public  dressed 
as  a  female.  Wearing  a long haired women's wig,  lipstick, eye 
make-up, and  a woman's blouse, and  a women's shorts and  slacks 
with a woman's sandals. 

v 

After  consulting with  counsel, applicant waived  his  right  to  a 
trial  by  court-martial,  requested  a  personal  appearance  and 
submitted a written presentation. 

. .. 

On 4 April  1997, his commander imposed the following punishment: 
reduction  to  the  grade  of  technical  sergeant,  forfeitures  of 
$300, and a reprimand.  Applicant did appeal the punishment.  The 
reduction to technical sergeant was suspended for a period of six 
months. 

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97-02282 

On  1  October  1997, applicant  was  retired  in  the  grade  of 
master  sergeant,  under  the  provisions  of  AFI  36-3203, 
(Temporary Early Retirement Authority).  He served 18 years, 
9 months and 18 days total active duty with no lost time. 
'. 

AIR FORCE EVALUATION: 

The  Records  Procedures  Branch,  Directorate  of  Customer 
Assistance,  HQ AFPC/DPSRP, reviewed  this application and  states 
that the Standard Form 88 and Standard Form 93 initiated at the 
time  of  initial  enlistment  and  the  results  of  the  physical 
examination given to all inductees where the gender is determined 
and  documented  lists the  applicant's  sex  as male.  He  has  not 
presented  any  evidence  to  indicate  a  sex  change  operation has 
been initiated or successfully concluded that would thereby make 
the gender as currently recorded in his master personnel records 
inaccurate. 
The  gender  as  initially  recorded  based  on  the 
information  volunteered  by  the  applicant,  the  presence  of 
external male  genitalia  noted  during  the  physical  examination, 
and  accepted medical  standards used  to classify and distinguish 
male and female personnel appear to have followed and allowed for 
the male gender to be accurately recorded in his records.  Since 
the  applicant  has  failed  to  provide  the  results  of  a  recent 
physical examination or any evidence that supports the results of 
a successful sex change operation having occurred we must presume 
the gender as recorded in the master personnel record is correct. 
Therefore, they recommend denial of applicant's  request. 

A complete copy of the Air Force evaluation, with attachments, is 
attached at Exhibit C. 

The Staff Judge Advocate,  HQ AFPC/JA,  reviewed this  application 
and  states  that  while  the  applicant  has  been  diagnosed  with 
gender  identity  disorder,  a  form  of  mental  illness,  he  is 
genetically and physically male.  Gender identity disorder does 
not affect applicant's  biological sex; it affects his perception 
of his sex.  In other words, applicant thinks he is a woman, acts 
like  a  woman,  and,  therefore,  psychologically  applicant  is  a 
Air  Force  records 
woman,  but  only  in  mind,  not  in  body. 
correctly  reflect  that  applicant  is  male. 
Since  applicant  is 
biologically male,  the use of the male marker in his records in 
no way  violates  any  recognized  civil, constitutional, or  human 
right. 
With  regard  to  the  court  order  changing applicant's  gender; .- we 
believe it has no relevance to his military records.  First, the 
military personnel records are not subject to the jurisdiction of 
the 45th Civil District Court of Bexar County, Texas.  Changes in 
military  records  can  only  be  made  by  appropriate  military 
authorities,  statutory changes  by  Congress,  or  by  order  of  an 

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97- 02282 

appropriate  federal  court. 
State  courts  have  no  such 
jurisdiction.  Second, even if the court order were applicable to 
Air  Force  records,  it  does  not  require  agencies  within  its 
jurisdiction  to  change  records;  it  authorizes  them  to  c h p g e  
records.  There  are  significant  differences between  a  judicial 
order that requires action and a judicial order that authorizes 
action.  Thus, even if the court had jurisdiction to authorize a 
change in applicant's  records, the court did not  require such a 
change. 
The  applicant's  petition  related  to his  service at  the  time of 
the  application, the wear  of women's  clothing of f-duty, women's 
uniform  items,  etc. 
Since  applicant  has  retired  from  active 
duty, those portions of his application are no longer relevant; 
however,  it  is  their  opinion  that  applicant's  commander  acted 
correctly and with legal authority in issuing applicant orders to 
dress  as  a  male.  As  a  result,  they  believe  the  disciplinary 
actions  taken  by  the  commander  to  have  been  appropriate. 
Therefore they recommend denial of applicant's  request. 
A complete copy of their evaluation is attached at Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant reviewed the evaluation and  states that his  legal 
gender  is  female as  evident  by  the  ruling  of  the  Bexar  County 
Court, and  substantiated by  the  State  of  Texas which  issued an 
amended driver's  license, the Commonwealth of Pennsylvania which 
issued an amended birth certificate, the Federal Government which 
amended the social security account, and two medical affidavits. 
The applicant states that he was retired on 1 October 1997,  as a 
female with his military identification card and military medical 
records reflecting his gender as female. 

A complete copy of applicant's  response is aLtached at Exhibit F. 

THE BOARD CONCLUDES THAT: 

1.  The applicant has exhausted all remedies provided by existing 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented'"to 
demonstrate the existence of probable error or injustice.  After 
reviewing  the  evidence  of  record,  we  are  not  persuaded  that 
applicant's  military  records  should  be  change  to  reflect  a 
sex/gender marker  of  female.  The detailed comments provided  by 
the  appropriate Air  Force  offices  appear  to  accurately  address 

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97- 02282 

applicant's  contentions.  In view of the above findings, we agree 
with the opinions and recommendations of the Air  Force and adopt 
their  rationale  as  the  basis  for  our  conclusion  that  the 
applicant  has  not  been  the  victim  of  an  error  or  injustice. 
Therefore, we  find no compelling basis to recommend grantin-g" the 
relief sought in this application. 

4.  The applicant's case is adequately documented and it has not 
been  shown  that  a  personal  appearance with  or  without  counsel 
will  materially  add  to  our  understanding  of  the  issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

THE BOARD DETERMINES THAT: 

The  applicant be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application  was  denied  without  a  personal 
appearance; and  that  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 this application in 
Executive  Session on  28  July  1998,  under  the provisions  of AFI 
36- 2603: 

Mr. Michael P. Higgins Panel Chair 
Dr. Gerald B. Kauvar, Member 
Mr. Allen Beckett, Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149,  dated 2 9   Jul 97,  w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ AFPC/DPSRP, dated 10 Aug 97,  w/atchs. 
Exhibit D.  Letter, HQ AFPC/JA, dated 14 Nov 9 7 .  
Exhibit E .   Letter, SAF/MIBR, dated 1 Dec 97. 
Exhibit F.  Applicant's  Response, dated 15 Dec 97,  w/atchs. 

anel Chair 

rc.c 

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MEMORANDUM FOR AFBCMR 

FROM:  DPSRP 

Alter review of application we recommend the requested action be. denied. 
REQUESTED  ACTION: '  Member  wants  sex/gender  marker  of  male  on  master 

' 

personnel record and master personnel files changed to reflect female. 

BASIS FOR THL REQUEST:  Member believes master-personnel record and files are 
incorrect as they list male as gender based solely on the presence of external male genitalia and 
do not take into account the members'  mental, emotional and psychological female orientation. 

FACTS: 

male  and  under his  original  birth  name  of 
nder  as documented  in Air Force records 
of Medical Examination, dated 5  October 
1978, which was initiated at the time of initial enlistment and the enlistment physical the member 
rvice provides the information contained in Item 7 of the 
received.  The app 
listed  male  under  the  gender  category  at the time  of the 
Standard Form  88 
initial  physical  an 
ng.  Additionally,  at  initial  en1i;jtment  all  personnel  are 
required  to  complete  a  Standard  Form  93,  Report  of  Medical  History,  which  reflects  their 
assessment of their health and indi 
r injuries they have suffered.  A copy of 
the or 
master personnel iecord is enclosed.  It is 
noted 
e questions liste;!  in Iten1 12 of this form 
which pertained to females only. 

did not answer or respon 

DISCUSSION:  It is our opinion the application should be denied. 

. .  

I I 

" 

The Standard Form 88 and Standard Form 93 initiated at the time of initial enlistment and 
the results of the Dhvsical examination given to all inductees where the gender is determined and 
documented  lists-s- 
has  not  presented  any 
 
evidence  to  indicate  a  sex  change  operation  has  been  initiated  or  successfully  concluded  that 
would thereby make the gender as currently recorded in his master personnel records inaccurate. 
The gender as initially recorded  based  on the information volunteered  by  th 

sex  as m

e

 

.

.  . .  

.  .. 

.

.

 

.

.

.

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the  presence  of  external  male  genitalia  noted  during  the  physical  examination,  and  accepted 
medical  standards used  to  classify  and  distinguish male  and  female personnel  appear to  have 
followed  and  allowed  for  the  male  gender  to  be  accurately  recorded  in  his  master  personnel 
records. 

has failed to provide the results of a recent physical  examination 
s the results of a successful sex change operation having occurred 
we must presume the gender as recorded in the master persoiinel record is correct.  Therefore we 
believe the application should be denied. 

WILLIAM A.'TOOLES, MSgt, USAF 
NCOIC, Records Procedures Branch 
Directorate of Customer Assistance 

Attachments: 
1.  SF 88,5 Oct 78 
2.  SF 93,5 Oct 78 

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DEPARTMENT O F  THE AIR  FORCE 

HEADOUARTERS AIR  FORCE  PERSONNEL CENTER 

RANDOLPH AIR  FORCE  BASE TEXAS 

- - 

U.S.  AIR FORCE 

1 9 4 7  -  1 9 9 7  

14 November 1 997 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPC/JA (Major Reed) 
550 C Street West Suite 44 
Randolph AFB TX 78 150-4746 

SUBJECT:  Application for Correction of Military R 

cords 

M e r  review of subject application, we recommend the requested action be denied. 

REQUESTED ACTION:  The applicant requests that his military master personnel 

records be changed to reflect a sedgender marker of female rather than the current sedgender 
marker of male. 

BASIS FOR REQUEST:  The applicant claims his records, bearing the sedgender 

marker of male, conflict “with all existing local, state, and federal records” creating a situation 
where his “civil, constitutional, and human rights are unnecessarily violated; the health and 
welfare of’ his “family is placed in needless jeopardy; and” his “overall effectiveness as a 
productive member of the Air Force is limited due to the resultant application of an inappropriate 
standard.”  We disagree. 

FACTS: 

- - .  

applicant, was born 

Applicant was born male.  Subsequently, applicant entered the United States Air Force as a male 
on 12 Oct 78.  He was retired in the grade of master sergeant (E-7) on 1  Oct 97. 

, on 21 Dec 60. 

On 27 Mar 97, applicant legally changed his name to 
pursuant to an 
Included in 
order by the presiding judge for the 45th Civil District Court 
the order was authorization for “public and private agencies within the jurisdiction of [the] court” 
“to amend vital statistics information gender markers from masculine to feminine . . . . 

Subsequent to his name/gender change in ms  the Commonwealth 

7, 

sued a 

Certification of Birth on 13 May 97, that lists applicant as female. 

, I’ ” 

On 19 May 97, applicant changed his n a e  in the DEERS system; however, his gender 

was not changed.  The r e f i d  to change his gender is the basis of this appeal. 

All available medical evidence suggests that applicant is still biologically, and 

genetically, male. 

DISCUSSION:  This application was timely filed.  Nevertheless, it should be denied. 

While he has been diagnosed with gender identity disorder, a form of m e n d  illness, 

applicant is genetically and physically male.  Gender identity disorder does not affect applicant’s 
biological sex; it affects his perception of his sex.  In other words, applicant thinks he is a 
woman, acts like a woman, and, therefore, psychologically applicant is a woman, but only in 
mind, not in body.  Air Force records correctly reflect that applicant is male.  Since applicant is 
biologically male, the use of the male marker in his records in no way violates any recognized 
civil, constitutional, or human right. 

It is a long-standing proposition that a military member’s records reflect the genderhex 

under which he or she served.  The Air Force has never changed military records to reflect a 
change in gender, and, as recently as 3 1 Jul95, the Marines and Navy had also not changed 
gender records to conform with a sex change situation.  The Army had not at that time addressed 
the issue.  Indeed, in Ulane v. Eastern Airlines. Inc., 742 F. 2d lOSl(7th Cir. 1984), the court 
speculated that even in cases of sex change operations a person cannot change their biological 
gender.  Applicant’s personal contusion over gender identity may lead the psychiatrists to 
diagnose gender identity disorder, but that does not change the fact that applicant is biologically 
and genetically a male, that applicant served in the military as a male, and that applicant, even 
with sex change surgery, will always be biologically and genetically male. 

With regard to the court order changing applicant’s gender, we believe it has no relevance 

to his military records.  First, the military personnel records of the United States Air Force are 
not subject to the jurisdiction of the 45th Civil District Court o 
in military records can only be made by appropriate military authorities, statutory changes by 
Congress, or by order of an appropriate federal court.  State courts have no such jurisdiction. 
Second, even if the court order were applicable to Air Force records, it does not require agencies 
within its jurisdiction to change records; it authorizes them to change records.  There is 
significant difference between a judicial order which requires action and a judicial order which 
authorizes action.  Thus, even if the court had jurisdiction to authorize a change in applicant’s 
records, the court did not require such a change. 

hanges 

We note that much of applicant’s petition related to his service at the time of the 
application-the wear of women’s clothing off-duty, women’s uniform items, etc.  Since 
applicant has retired from active duty, those portions of his application are no longer relevant; 
however, it is our opinion that applicant’s commander acted correctly and with legal authority in 
issuing applicant orders to dress as a male.  As a result. we believe the disciplinary actions taken 
by the commander to have been appropriate. 

In our opinion, there is no error or injustice - in applicant's military records.  For the 

foregoing reasons, we urge the Board to deny the application. 

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A  +a+ S  FORD 

P.5 

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DEPARTMENT OF THE AIR FORCE 

n c A m m  Am FORCE WIUTAW PtZRWmNEL CpllTw 

R A W W M  AIR Io- 

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7 July 1995 

MEMORANDUM FOR DPSTS 
FROM:  HQ AFMPWA (Lt Col POW) 

550 c S W  W e q  sulk 44 
Raadolfi AFB 'I% 781504766 

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