IN THE CASE OF:
BOARD DATE: 23 November 2010
DOCKET NUMBER: AR20100014040
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 her DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect her recent name change and, in effect, gender change from male to female.
2. The applicant states the correction has not yet occurred.
3. The applicant provides:
* her DD Form 214 for the period 13 May 1968 to 12 December 1969
* her Name Change Decree, dated 6 September 2001, changing her name from Ralph H. Fxxxxxx to Kathy A. Mxxxx
* a copy of her U.S. Passport photo page
* copies of various cards
*
o Social Security
o Medicare
o Department of Veterans Affairs
o Oregon Driver 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 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 had service in the Army National Guard and U.S. Army Reserve and the Active Army. All of this service was performed as a man using the name Ralph H. Fxxxxxx.
3. The DD Form 214 the applicant seeks to correct shows she served as a male in military occupational specialty (MOS) 11E (Armor Crewman).
4. The applicant's current Oregon Driver License shows the applicant is a female, born on 23 October 1948, standing 5 feet, 9 inches tall, and weighing 148 pounds. The license is issued to Kathy A. Mxxxx.
5. The court order provided by the applicant shows a legal name change to Kathy A. Mxxxx.
6. 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 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. The applicant served on an active duty as a male under the name of Ralph H. Fxxxxxx. The applicant's legal name and gender change did not occur until after the release from the active duty status.
2. 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 constructed.
3. While the applicant's desire to have the records changed is understandable, there is no basis for compromising the integrity of the Army's record. Therefore, without a finding of material error or injustice in the record, there is no basis for changing the name or gender on any of the applicant's military documents.
4. However, in similar cases the Board has recognized that former Soldiers in a situation such as the applicant do experience significant difficulties associated with official documents showing different names. Therefore, as a matter of
compassion, it would be appropriate to issue a DA Form 1569) Transcript of Military Record, under the applicant's current legal female name of Kathy A. Mxxxx, showing the applicant's honorable active duty service from 13 May 1968 through 12 December 1969.
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 providing the individual a DA Form 1569 under the current legal female name of Kathy A. Mxxxx, showing her honorable active duty service from 13 May 1968 through 12 December 1969.
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 changing the applicant's military records, to include the DD Form 214, to reflect the name and gender change.
_______ _ _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) AR20100014040
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100014040
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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