IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080005444
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, correction of her military records to show her current name and sex.
2. The applicant states, in effect, that her records should be corrected to show her current name and sex.
3. The applicant provides a copy of an affidavit, a copy of letter from an R-CSW (registered - clinical social worker), and a copy of her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of her request.
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 records show she enlisted on 14 May 1962 as a structure specialist, in military occupational specialty (MOS), 512.10, then a male. She continued to serve until she was released from active duty on 13 May 1964, due to expiration of her term of service, also then a male.
3. The applicant provided a copy of a letter from a R-CSW, dated 25 July 2005.
In this letter, the R-CSW recommended waiver of the guidelines which state that a patient must be in a mental health treatment program for over one year in preparation for gender reassignment surgery. Since the applicant had been living full time as a female since 1984 and had been under treatment of two doctors for 10 years, she recommended the one year be waived.
4. The applicant provided a copy of an affidavit, from a physician, in Montreal, Quebec, Canada, dated 1 September 2005. The physician was a surgeon and experienced in gender reassignment surgery. The physician verified performing the male-to-female gender reassignment surgery on the applicant who had been identified as a male on his individual birth record. Therefore, the anatomical sex of the applicant, the physician stated, changed from male to female. The physician requested that all official documents reflect the applicants new name and female gender.
5. Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part it states that the DD Form 214 is a synopsis of the soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created. In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.
2. The applicant appropriately served and was discharged under the name and sex she provided upon her entry onto active duty on 14 May 1962. She changed her name and underwent sex reassignment surgery (from male to female) more than 44 years after her discharge. Therefore, her current discharge documents are correct as currently constituted and, as a result, there is no basis for changing them.
3. However, the Board recognizes, in this case, that the applicant may incur difficulties associated with official documents showing different genders and different names. As a result, the Board has determined as a matter of compassion that the applicant should be issued a Transcript of Military Record, DA Form 1569, showing her honorable service from 14 May 1962 to 13 May 1964. This document is intended solely for the purpose of identifying her to agencies who will not accept her DD Form 214.
4. In view of the foregoing, the applicants records should be corrected but only as recommended below.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___x____ ____x___ ___x____ 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 all Department of the Army records of the individual concerned be corrected by issuing the applicant a Transcript of Military Record, DA Form 1569, in the name of J_ A___ S_____ showing her honorable service from 14 May 1962 through 13 May 1964.
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 correction of her military records to show her current name and sex.
___________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) AR20080005444
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