IN THE CASE OF:	

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100008296 


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 record to show she was a female.

2.  The applicant states that although she served as a male she had a form of intersex surgery in 2001 that medically and legally corrected her gender to female.  She contends that upon her entry in the Army she had no knowledge of her intersex medical condition.

3.  The applicant provides documents in support of her application:

* identification cards from various organizations
* medical bill for intersex surgery, dated 19 March 2001
* Affidavit by Physician as to Change of Sex Designation, dated 6 April 2001
* Certificate of Change of Name, dated 30 March 2001
* Commonwealth of Massachusetts, Records of Birth, issued on 2 February 2004
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 December 1972

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 record shows the applicant enlisted in the Regular Army on 22 December 1969.  The enlistment documents on file report the applicant's first name was "John" and the applicant's gender was male.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), which was prepared on 8 January 1970 and last audited by the applicant on 19 September 1972, lists the first name John in item 1 (Name).  All documents and orders on file in the applicant's Official Military Personnel File (OMPF) that contain a name and/or gender show the first name "John" and gender as male.

4.  The record also contains a Standard Form (SF) 88 (Report of Medical Examination), dated 1 November 1972, which lists the applicant's first name as "John" in item 1 (Name) and gender as male in item 7 (Sex).

5.  On 15 December 1972, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of remaining Reserve obligation.  The DD Form 214 issued at the time lists the first name as "John" in Item 1 (Name) and the applicant signed the same.

6.  The applicant provides the following:

   a.  a medical bill for intersex surgery, dated 19 March 2001;

   b.  a sworn physician statement confirming a surgical operation was performed to completely change the applicant's gender from male to female on 22 February 2001;

	c.  a certificate of name change, dated 30 March 2001, which legally changed the applicant’s name from John J----- C----- to Janice J-------- C-----;


   d.  a Record of Birth, issued 2 February 2004, which shows the applicant was born a female under the name Janice J-------- C----- on 25 February 1950; and

   e.  several state and government identification cards with the name Janice J-------- C----- or Janice J. C-----.

7.  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 her military record should be corrected to show her correct first and middle names and gender.

2.  The record shows she enlisted, served, and was separated as a male.  The fact that subsequent to service the applicant underwent intersex surgery to change her gender from a male to a female does not negate the information recorded in the military record.

3.  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 conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record her current first and middle names and gender in her military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

4.  The applicant is advised that a copy of this decisional document along with her application and the supporting evidence she provided, which confirms her current first and middle names and gender, will be filed in her Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the data recorded in her military record and to satisfy her desire to have her correct gender documented in her OMPF.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100008296



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)