IN THE CASE OF:
BOARD DATE: 2 March 2010
DOCKET NUMBER: AR20090016603
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 correction of his DD Form 214 (Report of Separation from Active Duty) to show his first and middle names as "M___ R___" instead of "H___ K___" and to show his gender as male instead of female.
2. The applicant states that his paperwork shows he had the surgery and that he changed his name. He has already changed his birth certificate, social security card, and driver's license and would now like his military records corrected.
3. The applicant provides copies of an Arizona Driver License, issued 7 May 2003; a Standard Certificate of Live Birth, issued 6 August 2002; a social security card, issued 16 September 2008; and medical documents, dated 18 November 1991, from the Oregon Health Sciences University Hospital and Clinics Department of Pathology, Portland, OR, in support of his 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 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's records show the applicant enlisted in the USAR under the Delayed Entry Program (DEP) on 11 October 1974. Item 1 (Name - Last, First, Middle) of the DD Form 4 (Enlistment Contract-Armed Forces of the United States) shows the first and middle names as "H___ K___."
3. The applicant's records contain various personnel, finance, medical, and other documents, including an application for an identification card, a report of medical examination, separation orders, insurance documents, and various other documents that show the first and middle names as "H___ K___" and the gender as that of female. Some of these forms are authenticated by signature in the appropriate block, as required, using the first and middle names of "H___ K___."
4. The applicant was honorably discharged in the rank/grade of private/E-1 on 12 March 1975. Item 1 (Name) of the DD Form 214 shows the first and middle names as "H___ K___" and item 2 (Sex) shows the entry "F" indicating the gender as that of female at the time of discharge.
5. The applicant submitted the following documentation:
a. a copy of a birth certificate issued on 6 August 2002 and a copy of a state driver license that show the applicant's first and middle names as "M___ R___" and the sex as that of male;
b. a copy of a social security card issued on 16 September 2006 that shows the applicant's first and middle names as "M___ R___"; and
d. copies of medical records, dated 18 November 1991, that show the applicant underwent a gender change.
6. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. In 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. The applicant contends that his DD Form 214 should be corrected to show his correct first and middle names and correct gender.
2. The evidence of record shows that upon his enlistment in the DEP on 11 October 1974 and subsequent enlistment in the RA on 26 November 1974, the applicant listed his first and middle names as "H___ K___." The first and middle names as well as the gender are consistent with the first and middle names and gender on several documents in the service record throughout his entire military service.
3. The Army has an interest in maintaining the accuracy of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of compelling information to the contrary, there is no basis for changing the applicant's first and middle names or gender in this case.
4. A copy of this decisional document along with the application will be filed in his service records. This should serve to clarify any questions or confusion regarding the different first and middle names and gender, and adequately document his correct first and middle names and gender in his record.
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) AR20090016603
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ABCMR Record of Proceedings (cont) AR20090016603
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