RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 MAY 2008
DOCKET NUMBER: AR20080002265
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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, that her separation document (DD Form 214) be corrected to show her current name and gender.
2. The applicant states, in effect, the Court Order that amended the Division of Vital Records Birth Certificate and the notarized affidavit show her name was changed in Item 1 of her Certificate of Live Birth. The error on the DD Form
214 became apparent on 26 March 1996. She states her record should correctly reflect her legal name and gender. Her DD Form 214 is the most important record that must be changed as it proves her veteran status upon death.
3. The applicant provides a copy of her DD Form 214; Certificate of Live Birth dated 17 April 1997; Court Order from the Circuit Court of Jackson County, Missouri at Kansas City dated 6 November 1996; and a notarized affidavit from a surgeon that states he successfully performed gender reassignment surgery on the applicant in Montreal, Quebec, Canada. The affidavit is dated
3 April 1996.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the U.S. Army Reserve on 9 September 1976, then a male, and subsequently executed a new enlistment contract in the Reserve Officer Training Corps (ROTC) Scholarship program on 30 November 1977. On 28 November 1978, the applicant was appointed as a Reserve Commissioned Officer of the Army in the rank of second lieutenant. On 29 November 1978, the applicant was voluntary reassigned to the Missouri Army National Guard.
3. The applicant entered active duty as a Reserve Officer on 30 September 1980. She served continuously until she was promoted to the rank of captain on 1 June 1984. She was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) St. Louis, Missouri on
1 March 1986. She completed 5 years, 5 months, and 2 days of Net Active Service This Period.
4. A review of the applicant's DD Form 4/4 (Enlistment or Reenlistment Agreement-Armed Forces of the United States) and all pertinent documents show that the applicant's name was consistent with the male gender throughout her military career.
5. Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214. In pertinent part, it states that you may use DD Form 4/4 as a source document to enter the full name in Item 1 (Last, First, Middle) of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that her DD Form 214 should be changed to reflect that her name and gender were legally changed.
2. The court document which legally changed the applicant's name and gender, notarized affidavit by the surgeon that performed sex reassignment surgery, and Certificate of Live Birth, were noted.
3. However, for historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.
4. In the absence of a showing of material error or injustice, those records should not be changed.
5. In the applicant's case the records reflect the correct name and sex under which military service was performed.
6. While it is understood the applicant desires to have her records changed, there is no basis for compromising the integrity of the Army's records.
7. The applicant is advised that a copy of this decisional document, along with her application and the supporting evidence she provided, which confirms her correct name and gender, will be filed in her Official Military Personnel File (OMPF).
8. In view of the forgoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ __X_____ __X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________X____________
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20080002265
2
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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