IN THE CASE OF:
BOARD DATE: 17 JUNE 2008
DOCKET NUMBER: AR20080004481
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his separation document (DD Form
214) be corrected to reflect his current legal name and gender.
2. The applicant states, in effect, that he would like for his military records to reflect the change of his name and gender. He would like for all legal documents to include his birth certificate to reflect the legal name and gender.
3. The applicant provides a copy of a Decree from the San Francisco County Superior Court dated 4 September 2003, which changed his name and gender.
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's military personnel record shows he enlisted in the Regular Army, then a female, on 1 June 1982. He completed the necessary training and was awarded military occupational specialty (MOS) 95B (Military Police).
3. He served continuously until he was promoted to the rank of sergeant. He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) St. Louis, Missouri on 18 December 1985. He completed 3 years, 6 months, and 18 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 female gender throughout his military career.
5. The court document shows the applicant's name and gender was legally changed by the San Francisco County Superior Court on 4 September 2003.
6. 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 his DD Form 214 should be changed to reflect that his name and gender were legally changed.
2. The court document which legally changed the applicant's name and gender is 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 gender under which military service was performed.
6. While it is understood the applicant desires to have his 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 his application and the supporting evidence he provided, which confirms his correct name and gender, will be filed in his 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
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080004481
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ABCMR Record of Proceedings (cont) AR20080004481
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