IN THE CASE OF:  

		BOARD DATE:  11 December 2014  	  

		DOCKET NUMBER:  AR20140001946 


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 the DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the:

* first name as "Sxxmeer" vice "Sxxanniqua
* middle name as "Nicxxxxx" vice "Natxxxx" 
* gender as "male" vice "female"

2.  The applicant states he had his name and gender legally changed and his previous name and gender are no longer valid.

3.  The applicant provides a State order and a letter.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 27 October 2008.  Block 1 (Name – Last, First, Middle) of the applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the first and middle names as "Sxxnniqua" and "Natxxxx."  

3.  The applicant was discharged from the DEP on 29 December 2008 and enlisted in the RA on 30 December 2008. 

4.  The applicant was honorably discharged on 16 September 2012 by reason of disability with entitlement to severance pay.  Block 1 (Name – Last, First, Middle) of the applicant's DD Form 214 shows the first and middle names as "Sxxnniqua" and "Natxxxx."

5.  The applicant provides a New York State Court Order Granting Leave to Change Name, dated 10 June 2013, approving the applicant's first and middle names changed to "Sxxmeer" and "Nicxxxxx."

6.  The applicant also provides a doctor's statement, dated 14 August 2013, wherein Dr. MM stated he was the applicant's physician and the applicant had completed the appropriate gender transition to the new gender male.

7.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214.  It states:  

	a.  The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge.  

	b.  For block 1, compare with the original enlistment contract or appointment order and review the official record for possible name changes.  If a name change has occurred, list other names of record in block 18 (Remarks).

	c.  For block 18, in part, when a DD Form 214 is administratively issued or reissued, enter “DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date).”  However, do not make this entry if the appellate authority; Executive Order; or Headquarters, Department of the Army, directs otherwise.

	d.  On direction of the ABCMR or Army Discharge Review Board, or in other instances when appropriate, the Deputy Assistant Secretary of the Army, Army Review Boards Agency, is authorized to issue or reissue DD Forms 214.  Once a DD Form 214 has been issued, it will not be reissued except under specified circumstances including when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows upon the applicant's enlistment in the USAR DEP and RA, the applicant's first and middle names were listed as "Sxxnniqua" and "Natxxxx" and these are the first and middle names listed on the applicant's DD Form 214 for the period ending 16 September 2012. 

2.  In the past the ABCMR has denied similar applications on the basis that the DD Form 214 is a historical document that should reflect the record as it existed at the time the DD Form 214 was created.  The underlying reasoning has been that a post-service name change does not retroactively create an error on the DD Form 214.  This is still true; however, the unique circumstances of transgender individuals may prevent or delay receipt of benefits for which these individuals must provide a DD Form 214 as proof of military service.   

3.  Considering the unique circumstances of transgender personnel, it would be appropriate to issue the applicant a new DD Form 214 for the period ending 16 September 2012 with the name shown on his 10 June 2013 Court Order Granting Leave to Change Name.  No entries should be made in block 18 of the reissued DD Form 214 listing his previous name or indicating that the DD Form 214 was administratively reissued.  Doing so would undermine the purpose of granting relief by drawing attention to his previous gender.  This proposed relief is limited to the DD Form 214 in question and does not extend to any other documents in the applicant's military records.  

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by reissuing a DD Form 214 for the period ending 16 September 2012 with the name in block 1 entered as the name shown on the applicant’s Court Order Granting Leave to Change Name.  No entries should be made in block 18 of the reissued DD Form 214 listing his previous name or indicating that the DD Form 214 was administratively reissued.



      _______ _   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)                                         AR20140001946





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ABCMR Record of Proceedings (cont)                                         AR20140001946



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