IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100018390 


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 reconsideration of her earlier request for correction of her records to show her gender as female instead of male.

2.  As new issues, the applicant requests correction of her records to show her SSN as "XXX-XX-3918" (a completely different number) instead of 
"XXX-XX-1289" and her first and middle names as "M____ J____" instead of "M____ S____."

3.  The applicant states failure to correct her SSN and gender is considered a violation of her due process and privacy and would impact her medical privacy.  Her SSN differs from the one she used during her military service.  The reason for this change supersedes the concept of historical records because the SSN is used to identify her instead of the serial number.  Additionally, the Department of Veterans Affairs (VA) is using her correct gender of female and name as M____ J____ D____ and her correct SSN.  The Army even issued her a DD Form 2765 (Army Identification and Privilege Card) with this name and SSN.

3.  The applicant provides:

* Social Security Administration Form SSA-2458 (Report of Confidential Social Security Benefit Information)
* legal settlement and stipulated dismissal with the VA
* copies of old and new social security cards
* orders of legal change of name
* name change decree
* DA Form 1569-E (Transcript of Military Record)
* certificate of live birth
* amendment of birth record to reflect court order change of name
* military identification number
* details of employee earnings
* letters to and from the Chief, Veterans Support Branch

CONSIDERATION OF EVIDENCE:

1.  With respect to the applicant's gender change, the applicant previously requested reconsideration of her earlier request for a gender change.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request for reconsideration and determined the request for reconsideration was neither received within 1 year of the ABCMR's original decision nor did it contain any new evidence.  As a result, the applicant's request for reconsideration does not meet the criteria outlined above and will not be discussed further in this Record of Proceedings.

2.  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.

3.  The applicant's records show the applicant (then a male) enlisted in the Regular Army on 23 November 1976.  A copy of his DD Form 4 (Enlistment Document) is not available for review with this case.

4.  The applicant's DA Form 2-1 (Enlisted Qualification Record) which was created upon his entry on active duty listed his SSN as "XXX-XX-1289" and his first and middle names as "M____ S____."  The applicant reviewed this form at a later date and authenticated it using the first and middle names as "M____ S____."

5.  The applicant's records also show he served in Germany from March 1977 April 1978.  He was honorably discharged from active duty on 23 November 1976 by reason of disability.

6.  Item 1 (Name) of his DD Form 214 (Report of Separation from Active Duty) listed his first and middle names as "M____ S____" and item 3 (SSN) listed his SSN as "XXX-XX-1289."  The applicant authenticated this form using the first and middle names as "M____ S____."

7.  On 17 August 1988, the applicant submitted a DA Form 3072-1A (Request for Waiver of Disqualification for Enlistment/Reenlistment).  The applicant listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."

8.  On 24 February 1989, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 4 years.  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He also authenticated this form using these names.

9.  On 19 and 20 May 1989, the applicant completed an SGLV Form 8286 (Servicemen's Group Life Insurance Election and Certificate) and a DD Form 93 (Record of Emergency Data).  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated these forms using these names.

10.  On 5 June 1989, the applicant submitted a DA Form 4187 (Personnel Action) wherein he requested enlistment in the Regular Army.  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated this form using these names.

11.  He enlisted in the Regular Army on 13 July 1989.  His DD Form 4 (Enlistment/Reenlistment Document) listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated this form using these names.

12.  On 18 July 1989, he submitted a DD Form 1172 (Application for Uniformed Services Identification Card).  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated this form using these names.

13.  On 17 November 1989, he submitted various documents regarding enrollment of his son in the Exceptional Family Member Program.  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated these forms using these names.

14.  On 3 April 1990, he submitted a DA Form 4187 requesting discharge from the Army based on hardship (the medical condition of his son).  He listed his first and middle names as "M____ S____" and his SSN as "XXX-XX-1289."  He further authenticated this form using these names.

15.  His request was approved and he was honorably discharged from active duty on 27 April 1990.  Item 1 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) listed his first and middle names as "M____ S____" and item 3 listed his SSN as "XXX-XX-1289."  He further authenticated this form using these names.

16.  On 10 February 2000 subsequent to the applicant's petition to the ABCMR, the Board recognized the difficulties associated with showing different genders and names and recommended as a matter of compassion to grant the applicant relief by issuing the applicant a DA Form 1569-E (Transcript of Military Record) in the current female name.  The applicant was ultimately issued this form that listed the name "M____ A____ S____ O'D____" and the SSN "XXX-XX-1289."

17.  The applicant submitted the following documents:

	a.  An SSA Form 2458, dated 1 July 2009, shows the name "M____ D____" was issued the SSN "XXX-XX-3918" as a replacement of SSN "XXX-XX-1289."

	b.  A settlement and stipulated dismissal court order, dated 3 March 2003, shows an individual with the name "M____ A. O'D____" settled an issue of care with the VA.

	c.  A copy of a social security card showing the name "M____ A____ S____ O'D____" was issued the SSN "XXX-XX-1289."  The hand-written entry of "old name and SSN" appears next to this card.

	d.  A copy of a social security card showing the name "M____ J____ D____" was issued the SSN "XXX-XX-3918."  The hand-written entry of "new name and SSN" appears next to this card.

	e.  A circuit court name change decree, dated 24 December 1998, shows legal approval of a name change from "M____ A____ O'D____" to "M____ A____ D____."

	f.  A district court order changing name, dated 25 January 2002, shows legal approval of a name change from "M____ A____ D____" to "M____ J____ D____."

	g.  A certificate of live birth, dated (accepted for registration) 27 November 1959, shows a child named "M____ A____ D____" was born on 12 November 1959.

	h.  An Amendment of Birth Record to Reflect Court Order Change of Name, dated (accepted for registration) 24 January 2003, shows the name of the child born on 12 November 1959 was changed by court order from "MAL__ A__ D____" to "MAT__ J____ D____."

	i.  A Department of Defense/Uniformed Services Identification and Privilege Card shows the name "M____ J____ D____" and the SSN "XXX-XX-3918."

	j.  An information paper from the Chief, Veterans Support Branch, Army Personnel Records Division, dated 10 September 2009, advised the individual named "M____ J____ D____" that the records were incomplete and instructed how to contact the Defense Finance and Accounting Service to request pay vouchers.

	k.  A letter from an individual named "M____ D____," dated 11 June 2010, informed the Veterans Support Branch Chief that the old name shown on the DD Form 214 was legally and medically changed.

	l.  Various documents, dated 6 March 2001, show employment history and earnings.

18.  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 records should be corrected to show her current name and SSN.


2.  The applicant's initial enlistment contract on 23 November 1976 is not available for review with this case.  However, it appears the applicant listed the SSN as "XXX-XX-1289" and the first and middle names as "M____ S____."  The first and middle names as well as the SSN are consistent with the first and middle names and SSN on several documents in the applicant's service record throughout this period of enlistment.

3.  The applicant enlisted in the USAR on 24 February 1989, also using the SSN "XXX-XX-1289" and the first and middle names "M____ S____."  The applicant was discharged from the USAR and again enlisted in the Regular Army on 13 July 1989 using the SSN "XXX-XX-1289" and the first and middle names "M____ S____."  The first and middle names and SSN are consistent with the first and middle names and SSN shown on various documents during this period of enlistment.

4.  The applicant did not use the SSN or any of the several names shown on various civilian records during military service.  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 SSN in this case.

5.  Subsequent to the applicant's service in the Army, the applicant elected to change her name on multiple occasions and her SSN.  The applicant did so as a civilian.  The applicant's actions had no impact on the Army as she was no longer in the Army.  Contrary to the applicant's contention that her privacy and due process were violated, the Army issued the applicant a DA Form 1569-E for compassionate reasons to minimize the difficulties associated with showing different genders and names.  However, this action was done strictly for compassionate reasons.

6.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  In each period of active service, the applicant was issued a DD Form 214 that provided a brief, clear-cut record of active Army service at the time of release from active duty.  Neither form contains any errors.  Therefore, the applicant is not entitled to the 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 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)                                         AR20100018390



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ABCMR Record of Proceedings (cont)                                         AR20100018390



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