RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  02-00989
                 INDEX CODE 100.01

                 COUNSEL:  None

                 HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The DD Form 214 issued upon  retirement  be  changed  to  reflect  the
current legal name of “------.” rather than “-----.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 12 February 2002, she  underwent  Gender  Reassignment  Surgery  to
correct her sex to female.  Many of her civilian records have now been
corrected, including her birth certificate, to reflect  her  new  name
and gender.

In support of her appeal, she submits a personal statement, copies  of
her  birth  certificate,  medical  certificate,   passport,   drivers'
license, Department of Transportation FAA license, AFPC/DPSAMP  letter
and AF Form 281, Notification of Change in Service  Member's  Official
Records, and a Naval Correction case file.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant retired from the Air Force on 1  November  1983  in  the
grade of master sergeant with 21 years, 1 month and 2  days  of  total
active service.

On 4 February 2002, applicant was admitted to ---- Hospital in ----, --
----, for the  treatment  of  gender  dysphoria  by  sex  reassignment
surgery.  Applicant's gender was changed  to  female  and  applicant's
face was changed by facial feminization surgery.  Applicant's  records
include a certified copy of a 16 March  2001  order  of  the  Superior
Court of ----, --- County, ordering applicant's name  change  and  the
issue of a new birth certificate.

On 24 May 2002, HQ AFPC/DPSAMP advised the applicant that AF Form 281,
Notification of Change  in  Service  Member's  Official  Records,  was
forwarded to reflect her name change from "---- ----- ----- " to "-----
- ---- ------" in the military personnel  data  system  (MilPDS),  and
indicated that this update would flow to her retired pay file.  DPSAMP
further advised her that her DD Form 214, Certificate  of  Release  or
Discharge from Active Duty, will not  be  changed,  as  it  accurately
reflects her name on the date of her retirement (31 Oct 83).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSAMP stated that the applicant's records correctly reflect  the
legal name/gender under which the applicant served  and  retired,  and
the Air Force and Department of Defense have no procedures in place in
regards  to  making  the  change  the  applicant  has  requested.   In
addition, DPSAMP reviewed the action taken by  the  Navy  BCMR.   They
found the existence of an injustice warranting partial relief  in  the
cases the member enclosed.  However, DPSAMP did not see  an  injustice
in the applicant's personnel record.  The Air Force  personnel  record
correctly reflects the applicant's name and gender during  the  period
of service and on the date of retirement.  The current name and gender
information does not mirror the name and gender information  contained
in  the  personnel  record.   Therefore,   correcting   the   member's
historical  records  is  an  unjustified  action.    Additionally,   a
statement of service  has  no  significance  when  verifying  military
service.   Any  organization  attempting  to  verify  the  applicant's
service will ask for the DD Form 214.  In this case,  the  information
on the DD Form 214 is correct as of the  date  the  applicant  retired
from the United States Air Force.  As such, the applicant  would  have
to provide the  organization  additional  information  concerning  the
discrepancy  between  the  DD  Form  214  and  present  circumstances.
Therefore, DPSAMP  believes  that  issuing  a  statement  of  service,
similar to the ones issued by the Navy, is an inappropriate action  to
take on this application.

AFPC/DPSAMP complete evaluation is at Exhibit C.

AFPC/JA recommended denial of  the  requested  action.  Applicant  has
failed  to  present  relevant  evidence  of  any  error  or  injustice
warranting relief.  Although the Air Force has provided for a  retiree
to change his or her name by court order, the Air Force  has  made  no
provision for changing an active, reserve, or retired member's  gender
in its records. Our review of the law has not revealed  a  statute  or
case on point. The majority of federal court cases in  the  area  deal
with alleged discrimination against transsexuals-usually by employers,
who are alleged to have violated Title VII of the Civil Rights Act  of
1964 by firing the individual after he/she has undergone a sex  change
operation. The majority of courts that have considered the issue  have
held that transsexuals are not a protected class  under  the  Act  and
that the term "sex" does not include transsexuals (see, e.g., Ulane v.
Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984),  cert.  denied,
471 U.S. 1017,85 L.Ed.2d 304,105 S.Ct. 2023 (1985); Sommers v.  Budget
Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); and, Holloway v. Arthur
Andersen & Co., 566 F.2d 659 (9th Cir. 1977)). In other  words,  while
an employer cannot discriminate against an  employee  because  of  the
latter's sex (e.g., firing an employee because  she  is  female);  the
employer can fire the employee because of his or  her  practices  that
grow out of transsexualism.  While such case law is not dispositive of
the issue before us, it is instructive. Based on the discussion above,
it is our opinion that the  Air  Force  is  not  legally  required  to
recognize a transsexual's  gender  change.  Furthermore,  neither  Air
Force policy nor regulation provides for such recognition.

With respect to the applicant's citation to the two Navy cases and her
request for a "Statement of Service."  We note that, in each of  these
cases, the Board for the  Correction  of  Naval  Records  refused  the
servicemember's request  to  change  her  DD  Form  214,  noting  that
correction of this form, or any other part  of  the  service  records,
would  be  inappropriate  since  those  records  correctly  show   the
servicemember's gender during active duty service.  The Navy Board did
determine, however, that "it would be appropriate to create a document
that will show [the member's] period of service with her present  name
and gender."  The Board referred to this document as a  "Statement  of
Service" and further described it as a document that "sets  forth  the
individual's name, other identifying data, and the period of time  the
individual served on active duty."

JA noted that DD Form 13, Statement  of  Service,  for  -----  ------,
dated  23  September  1997,  exists  as  part  of  applicant's  master
personnel  record.   This  DD  Form  13  was  evidently  prepared   in
accordance with  Air  Force  Regulation  (AFR)  35-3,  Service  Dates,
paragraph 5b(3):  "...HQ  AFMPC/MPCDOA  automatically  computes  Total
Active Federal Military Service (TAFMS) and pay date  and  distributes
DD Form 13 on airmen who reenlist with more than 14 years  of  TAFMS."
There is no provision in AFR 35-3 for correcting a former member's  DD
Form 13 to reflect changes in gender occurring  after  discharge.   As
noted above, correction of any part  of  a  member's  service  records
would be inappropriate since those records correctly show the member's
gender during active duty service.

It is not clear to JA whether the  so-called  "Statement  of  Service"
referenced in the Navy Board's opinions, and the DD Form 13 referenced
in AFR 35-3, are one and the same.  No Department of Defense  or  Navy
form numbers are identified in the Navy Board's opinions. If the  Navy
Board was advocating the creation of an entirely new  document  to  be
added to the applicant's military record, JA cannot recommend that the
Air Force Board follow suit.  JA noted that applicable federal law and
Air Force regulation authorize the  Air  Force  Board  to  correct  an
applicant's military record when he or she demonstrates the  existence
of a material error or injustice  that  can  be  remedied  effectively
through such correction.  However, the creation of new  documents  for
inclusion in  an  applicant's  military  record  is  not  specifically
authorized.

AFPC/JA complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the  evaluations  and  stated  that  she  fully
understands that  to  change  history  would  defeat  the  purpose  of
documenting it.  She is requesting that the paymaster file be  updated
to reflect her gender so the DEERS may carry her correct status.  This
will allow correct documentation and presentation,  and  preclude  any
problems at the Base hospital when she makes appointments  for  female
clinics, and in the event that she marries and  wants  to  enroll  her
spouse in the medical system, which then  would  cause  an  injustice,
should this not be changed.  She is legally a female  and  her  social
security, birth certificate and other documents  reflect  her  correct
gender.  All she is asking for  is  a  letterhead  document  with  the
subject being "Statement of Service for ---- -----,  MSgt,  and  SSN",
mirroring her DD Form 214.

Applicant's complete response is at Exhibit F.

_________________________________________________________________

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 an error or injustice.  After a  thorough  review  of
the  evidence  of  record  and  applicant’s  submission,  we  are  not
persuaded that relief is  warranted.   The  applicant's  DD  Form  214
correctly reflects the name and gender during the  period  of  service
and once a member separates or retires from the military service,  the
DD Form 214 is not altered because of a post-service name change.

4.    With respect to the  applicant's  request  for  a  statement  of
service, the Board noted the action taken by the Navy correction board
in directing that a document be created to show the member’s period of
service and their present name and gender.  In the applicant’s case  a
statement of service already exists as a part of the  military  record
and we believe that this statement of service, DD Form  13,  dated  23
September 1997, is accurate and was prepared in  accordance  with  the
applicable regulation.  There  are  no  provisions  in  AFR  35-3  for
correcting a former member's DD Form 13 to reflect changes  in  gender
occurring after discharge nor any provisions to provide a statement of
service similar to that,  which  was  issued  by  the  Navy  Board  of
Corrections.  More importantly, we find no compelling reason to  treat
this applicant differently than any other member similarly situated.

5.    In regard to changing the  applicant's  gender  in  the  Defense
Enrollment Eligibility Reporting System (DEERS), we are of the opinion
that the Board lacks the authority to change any records within DEERS,
which is not an Air Force record, or a system under  the  auspices  of
the Air Force.  Therefore, in view of the above and absent  persuasive
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 Docket  Number  02-00989
on 16 October 2002 under the provisions of AFI 36-2603:


                 Mr. Albert F. Lowas, Jr., Panel Chairman
                 Mr. William H. Anderson, Member
                 Mr. Thomas J. Topolski, Jr., Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSAMP, dated 22 Aug 02.
   Exhibit D.  Letter, HQ AFPC/JA dated 30 Aug 02
   Exhibit E.  Letter, SAF/MRBR dated 6 Sep 02.
   Exhibit F.  Applicant's Response, 23 Sep 02.





                                   ALBERT F. LOWAS, JR
                                   Panel Chairman