IN THE CASE OF:	 

		BOARD DATE:	  2 December 2008

		DOCKET NUMBER:  AR20080013571 


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 military records be corrected to reflect his current legal name and gender as Pa _ l F_ _ _ cis G_ _ _ _ s – male.

2.  The applicant states that he would like for his military records to read Pa _ l F_ _ _ cis G_ _ _ _ s – male, instead of Po _ _y F_ _ _ cine G_ _ _ _ s – female.  He states that it is a genetic issue.  At age 3 he could not prove it, but he waited until June 2006 to do so.  He was born inter-sexed and his penis was cut down to a small size.  He states that his parents and doctors gave him estrogen, but he never told anyone his penis was growing back.  He needs to have his name and gender changed for proof of employment, medical treatment, and background information to match Selective Service.  He continues that he would like to have copies of his certificates because his "ex" destroyed them.

3.  The applicant provides, in support of his application, a copy of a Petition for Change of Name from the Circuit Court of St. Louis County, State of Missouri, with a sworn Affidavit, dated 9 August 2007; a certified Judgment of Name Change, dated 13 September 2007; a copy of his State of Minnesota Birth Certificate, issued on 27 August 2008; two self-authored statements, dated
15 February 2008 and 24 September 2008; a Department of Veterans Affairs memorandum, dated 15 August 2008; a DD Form 214 (Certificate of Release or Discharge from Active Duty); and six identification cards, which include his Social Security Card.



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.  In the applicant's 24 September 2008 self-authored statement he states, "May I please get a copy of my certificates.  My "ex" destroyed them."  However, he does not identify what certificates he is referring to.  If he wishes, he can resubmit a follow on application to specifically request what certificates he is seeking to obtain.  Therefore, this issue will not be further discussed in these proceedings.

3.  The applicant's military personnel record shows he enlisted in the U.S. Army Reserve (USAR), then a female, and was ordered to initial active duty for training on 23 March 1989.  

4.  He served until he was honorably discharged from active duty due to physical disability with severance pay on 22 February 1990.  He completed 11 months of active service.

5.  A review of the applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) and all pertinent documents show that the applicant's name was consistent with the female gender during his 11 months on active duty.

6.  The court documents, provided by the applicant, show the applicant's name and gender were legally changed by the Family Court of St. Louis County, in the State of Missouri, on 13 September 2007.

7.  In the statements that the applicant submitted he states that he inherited a genetic endocrine disorder, which consists of a mosaic karyotype of  
ICD 9:758-89, under the category of birth defect.  He states that due to his 
medical defect he was raised as the wrong sex according to his genetic karyotype.  His gender is male and all of his records whether written or electronic need to state his gender as male.  

8.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it stated that the Soldier's DD Form 4 may be used 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 and birth certificate which legally changed the applicant's name and gender are 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 confirm his legally changed 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)                                         AR20080013571



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ABCMR Record of Proceedings (cont)                                         AR20080013571



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