IN THE CASE OF:	  

		BOARD DATE:	       7 August 2008

		DOCKET NUMBER:  AR20080010594 



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show his gender as male and his legal name is Mark L____ J______.

2.  The applicant states, in effect, he was born a hermaphrodite (a person with both male and female sex organs) and due to medical practices at the time of his birth the external male organs were removed and he grew up as a female.  He was not told this until the death of his father.  He has had DNA (deoxyribonucleic acid) testing done and he was found to have the "Y" or male chromosome.  This indicated that, despite his outward appearances of being a female, genetically he was a male.  He has since undergone corrective surgery to become physically a male.  He has been told that the Defense Enrollment Eligibility Reporting System (DEERS) and TriCare has him listed as Mark L___ J____, but still as a female.  They have advised him that he needs to have his military records completely changed to show his gender as male for them to correct their records. 

3.  The applicant provides copies of a 31 January 2008 circuit court order, letters from the physicians who preformed the sex change surgeries, a photocopy of his United States Uniformed Services Identification Card (ID), a revised birth certificate, his passport, and his Florida driver's license.  

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 was born on 20 April 1951 in Jersey City, New Jersey.  The available documentation indicates that he was born with both male and female sex organs and that the doctors removed the male sex organs allowing the applicant to develop as a female.

3.  The records show the applicant grew up as a female under the name of Marylou C___ J____.

4.  On 30 April 1970, the applicant enlisted in the Regular Army, as a female under the name of Marylou C___ J____.  She attained the rank of staff sergeant, and was honorably discharged to accept a commission on 7 August 1978. 

5.  As a female, the applicant was commissioned a second lieutenant on 8 August 1978.  She served in the military occupational specialty (MOS) of 
31A (Military Police) for 13 years with secondary MOSs of 31D (Criminal Investigation) and 41A (Personnel Programs Management Staff).

6.  While in an active status the applicant developed several medical problems.  A Physical Evaluation Board that ultimately found her unfit for duty and placed her on the Temporary Disability Retired List (TDRL).

7.  The applicant was released from active duty and transferred to the TDRL effective 30 September 1991.  She had 21 years, 5 months, and 1 day of active service.

8.  On 9 November 1994, a PEB reevaluated her conditions, afforded her a 100 percent disability evaluation, and placed her on the permanent disability retired list, effective 5 April 1995.

9.  The applicant was placed on the Retired List as a female under the name of Marylou C____ J____.

10.  The applicant elected to undergo gender reassignment surgery, which was accomplished through a number of surgical procedures culminating with the final surgery preformed by Doctor M____ L____ D_____ on 20 February 2008.

11.  Upon completion of his gender reassignment surgery, the applicant applied for a legal name and gender change.

12.  A 31 January 2008 Twentieth Judicial Circuit Court for Charlotte County, Florida court order officially changed the applicant's name from Marylou C____ J____ to Mark L____ J____.  Additionally, based on the DNA test results and a clinical examination, the court order officially changed the applicant's gender to male.

13.  Upon completion of the court action the applicant commenced to correct all of his current documents, identification cards, passport, and other official records and forms of identification to show he was a male named Mark L____ J____.  

14.  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 soldier’s 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 reflect the actual conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, the Army Board for Correction of Military Records (ABCMR) is reluctant to recommend that the service records be changed. 

2.  Further, the applicant has provided no official documents or correspondence showing that DEERS, TriCare, or any other agency that depends on the Army service records for providing services, has denied his request to correct his gender within their systems.  Further, these entities are not under the control of 
the Department of the Army and as such the ABCMR does not have the authority to direct that their systems be updated to the current legal gender designation of male.

3.  The applicant served on active duty and was discharged under the name and sex provided at the time of entry onto active duty in 1970.  The applicant did not undergo the sex reassignment surgery (from female to male) or change of name until more than 16 years after discharge.  Therefore, all records and documents, including the discharge documents, prepared and issued prior to that date are correct as constituted and there is no basis for changing them.

4.  However, it is recognized that the applicant may be incurring difficulties associated with official documents showing different genders and different names.  While the ABCMR does not have the authority to direct that non-Army records be corrected, it is appropriate to enter into the official Army records, for the purpose of all future correspondence and identification, the fact that, as of the 31 January 2008 Twentieth Judicial Circuit Court for Charlotte County, Florida court order; the applicant's legal name is Mark L____ J____ and that his gender is male. 

5.  Further, as a matter of compassion, it is appropriate to issue the applicant a Transcript of Military Record, DA Form 1569, in his current male name, as legally changed by the 31 January 2008 Twentieth Judicial Circuit Court for Charlotte County, Florida court order, showing his honorable enlisted service from 30 April 1970 through 7 August 1978 and honorable commissioned service from 8 August 1978 through 30 September 1991.  This document is intended solely for the purpose of identifying himself to agencies who will not accept his DD Form 214.

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:

	a.  including in the applicant's official records the fact that as of the 31 January 2008, Twentieth Judicial Circuit Court for Charlotte County, Florida court ordered the applicant's legal name as Mark L____ J____ and that his gender is male; and 


	b.  issuing the applicant a Transcript of Military Record, DA Form 1569, under his legally changed name of Mark L____ J_____, showing his periods of honorable enlisted service from 30 April 1970 through 7 August 1978 and honorable commissioned service from 8 August 1978 through 30 September 1991.  

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 his legal name or gender prior to 31 January 2008.  




      _______ _   _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)                                         AR20080010594



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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