RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070002071 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. William Blakely

Chairperson

Mr. William D. Powers

Member

Mr. Donald L. Lewy

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of the gender and name that is recorded in her military service records.

2.  The applicant states, in effect, her records should be changed to show her gender as female and name as Michaele H. E_______.  The applicant adds that she is greatly concerned about the potential for misidentification if reference has to be made to her current military service records.  The applicant also states, in effect, it is very important that the information in her military service records is updated for purposes of general identification, identification for medical or forensic purposes, and correct identification and classification in the event of recall to active duty or entry into government service.  The applicant concludes by stating, if necessary, she can also provide a statement from her gynecologist attesting to her being a woman.

3.  The applicant provides three self-authored statements, dated 23 November 2006, 28 January 2007, and 18 March 2007; District Court, 57th Judicial District, Bexar County, Texas, Number 2007CI00###, Order Changing Name of Adult, dated 22 January 2007; copies of 2 United States of America Passports, issued 19 July 2006 and 5 March 2007; 2 DD Forms 2 (Retired), U.S. Uniformed Services Identification Cards; 2 Texas Department of Public Safety, Driver Licenses, License Number: 03908###; Texas Department of Public Safety, Temporary Permit, Number: 03908###; and Texas Medical Board (TMB), Public Verification, Physician Profile from the TMB website, dated 13 March 2007.

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 served honorably as a commissioned officer in an active status in the U.S. Naval Reserve from 2 July 1975 to 29 September 1981, transferred to active duty in the U.S. Navy (USN) on 30 September 1981, and honorably resigned from the USN, effective 29 August 1989.

3.  The applicant was commissioned in the U.S. Army Reserve and entered active duty on 26 August 1989, served continuously on active duty in military occupational specialty 61U (Pathologist), and was honorably retired, in the rank of lieutenant colonel/pay grade O-5, effective 30 September 1997.  At the time, the applicant was credited with completing 8 years, 1 month, and 5 days net active service during this period; 13 years, 6 months, and 9 days prior active service; and 4 years, 7 months, and 28 days total prior inactive service.

4.  The applicant’s military service records contain a copy of Headquarters, Department of the Army, U.S. Total Army Personnel Command, St. Louis, Missouri, Orders A-06-001186, dated 20 June 1989, that ordered the applicant to active duty.  These orders show, in pertinent part, the applicant’s name as “Michael H. E_______” and sex as “Male.”

5.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 September 1997.  This document shows, in pertinent part, the applicant’s name as “E_______, Michael Hubertus.”

6.  In support of her application, the applicant provides, in pertinent part, a copy of District Court, 57th Judicial District, Bexar County, Texas, Number 2007CI00###, Order Changing Name of Adult, which shows, that on 22 January 2007, it was adjudged and decreed that the applicant’s legal name be changed from Michael H. E_______ to Michaele H. E_______.  The applicant also provides copies of a United States of America Passport, DD Form 2 (Retired), and Texas Department of Public Safety, Driver License that were issued prior to 22 January 2007 and show the applicant’s name as Michael H. E_______ and sex as male.  In addition, she provides copies of a United States of America Passport, DD Form 2 (Retired), and Texas Department of Public Safety, Driver License, issued subsequent to 22 January 2007, which show her name as Michaele H. E_______ and sex as female.  The applicant further provides a copy of a Texas Medical Board, Public Verification, Physician Profile, dated 13 March 2007, that shows her name as Michaele H. E_______ and sex as female.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It also provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  Paragraph 1-16 (MILPER information management records) of this Army regulation provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the U.S. Government.  Once recorded, it will not be removed, except as provided by law or this regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the gender and name that is recorded in her military service records should be changed because she is a female and her name was legally changed.  She also contends that she is greatly concerned about the potential for misidentification if reference has to be made to her current military service records.  

2.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  Accordingly, the information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In this regard, the evidence of record shows that the applicant’s military service records reflect the correct name and sex under which military service was performed.  Therefore, in the absence of a showing of material error or injustice, the applicant’s military service records should not be changed.

3.  While the Board understands the applicant's desire to have the military service records changed, it finds no basis for compromising the integrity of the Army's records that reflect the correct name and sex under which military service was performed.  Therefore, in view of the forgoing, there is no basis for granting the applicant's request.

4.  Notwithstanding the above, the Case Management Support Division (CMSD), St. Louis, Missouri, will be requested to furnish the applicant a DA Form 1569 (Transcript of Military Records) showing the new name and gender requested, along with other pertinent information.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__WB___  ___WDP_  ___DLL _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the CMSD-St. Louis furnish the applicant a DA Form 1569 (Transcript of Military Records) showing the new name and gender requested, along with other pertinent information.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the gender and name that is recorded in the applicant’s military service records.




    ___William Blakely_____
          CHAIRPERSON




INDEX

CASE ID
AR20070002071
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/16
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.