BOARD DATE: 6 December 2012
DOCKET NUMBER: AR20120009267
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 military records to show her gender as female.
2. The applicant states, in effect:
a. She wants her current gender (female) to be shown so she can enroll her recognized married husband in the Defense Eligibility Enrollment Reporting System (DEERS) to get a military dependent identification card issued to him as prescribed by law.
b. Her application to enroll her husband in DEERS was rejected because her current gender is not updated in her records. She was told DEERS cannot update her records.
3. The applicant provides:
* court decree changing name and gender
* various forms of identification
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. Records show the applicant enlisted in the Regular Army on 29 January 1980 as a male. The applicant remained on active duty through continuous reenlistments. The applicant was promoted to sergeant first class on 1 February 1991. The applicant last reenlisted on 5 November 1993 for 6 years.
3. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available. However, the applicant contends she was honorably separated in 1995.
4. In 2012, she legally changed her name and her gender from male to female.
5. 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. It establishes standardized policy for preparation of the DD Form 214 and states 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. It appears the same gender (male) was recorded at the time of the applicant's enlistment in 1980 and alleged separation from active duty in 1995.
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 actually 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, this Board is reluctant to recommend that those records be changed.
3. The applicant is advised that a copy of this decisional document which confirms her legal name and gender change will be filed in her U.S. Army Military Human Resource Record (AMHRR). This should serve to clarify any questions or confusion regarding the difference in the gender recorded throughout her AMHRR and satisfy her desire to have her current gender documented in her AMHRR.
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) AR20120009267
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ABCMR Record of Proceedings (cont) AR20120009267
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