IN THE CASE OF:	 

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140013293 


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 (Certificate or Release or Discharge from Active Duty) for the period ending 20 September 2011 to conform to a court-ordered name change.

2.  She defers to her counsel's statement. 

3.  She provides:

* statement from counsel
* court order changing her name
* New Jersey Auto Driver License
* social security card
* United States Uniformed Services Identification Card
* DD Form 214 for the period ending 20 September 2011
* DD Form 215 (Correction to DD Form 214)
* Record of Proceedings for Air Force Board for Correction of Military Records (AFBCMR) Docket Number BC-2003-04051
* orders promoting her to sergeant major/E-9

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 for the period ending 20 September 2011 to conform to a court-ordered name change.  

2.  Counsel states:
	a.  The applicant, a retired sergeant major, served in the U.S. Army for 29 years, including 7 1/2 years on active duty.  She completed four overseas tours, including tours in Iraq and Afghanistan, and received numerous awards.  She transferred to the Retired Reserve on 10 August 2012.  

	b.  On 25 May 2012, she obtained a court order changing her name to J_______ M____ L___.  On 9 July 2012, the State of New Jersey issued a driver's license under her current name.  On 28 June 2012, the Social Security Administration (SSA) issued her a new social security card under her current name.  The date of birth (DOB) and the social security number (SSN) match the DOB and SSN listed on her DD Form 214 for the period ending 20 September 2011.  

	c.  It is in the interest of justice that she requests her DD Form 214 be changed to reflect her current legal name.  This critical document is used to determine eligibility for veterans' benefits and legal protections tied to military service.  Veterans need this document to engage in a wide range of activities in public life, including securing loans, taking the bar exam, or applying for a job with an employer that provides veterans with a preference in hiring.  The DD Form 214 is also required by Federal agencies, including the Department of Veterans Affairs, to provide various veterans' benefits.

	d.  Transgender veterans encounter substantial burdens in obtaining post-service benefits because their names, and the gender implied by them, recorded on discharge documents no longer match their legal names.  Because of this inconsistency, they may be denied access to benefits and services, or, even if they are ultimately provided the benefit or service, the veteran may have been subjected to delay or invasive questions requiring that he or she provide personal, confidential, and/or medical information to explain the discrepancies between the documents.  Without a DD Form 214 that conforms to other identity documents, transgender veterans may also be subjected to an increased risk of employment discrimination because of their gender identity, denial of access to healthcare, and harassment and physical harm.  

	e.  The applicant knows that it has been this Board's policy not to change the name, gender, or SSN on military records because they are contained in historical documents that record the facts of an individual's service.  The applicant respectfully requests that the Board reconsider this approach.  In cases where a BCMR has denied a transgender veteran's request to amend a military record, the Board has relied on two reasons:  the BCMR's lack of authority to change the veteran's name following discharge and the military's interest in preserving the historical accuracy of military records.  Neither of these rationales should prevail.
		(1) Although some BCMRs have denied transgender individuals' requests for name changes because there are no established policies for amending military records in the case of a change of name or gender after discharge, a lack of internal guidelines should not control the outcome of such an application.  Congress explicitly authorized the BCMRs to correct military records if an error or injustice exists in the record.  The BCMRs have jurisdiction over a wide range of complaints of injustice and retain broad equitable powers.  The statute does not circumscribe a BCMR's powers to change military records only in circumstances specifically described in written guidance.  Such a limitation would clearly be untenable, as BCMRs undertake an individualized and fact-specific inquiry to determine that sufficient evidence exists on the record to amend a DD Form 214.  It would not be possible to have established policies on every factual scenario that constitutes an injustice sufficient to warrant amending a military record.  

		(2) A prior BCMR decision demonstrates that the Boards do have the authority to change a transgender applicant's name on the DD Form 214 following discharge.  In 2004, the AFBCMR granted a transgender veteran's request to change her DD Form 214 to reflect her current legal name.  In its decision, the AFBCMR made clear that it had the authority to grant the relief requested, which included issuing a corrected DD Form 214.  The AFBCMR acknowledged the potential problems caused by different names and the Service department's interest in maintaining accurate historical documentation of the veteran's service.  The AFBCMR struck the appropriate balance between these competing interests by issuing an amended DD Form 214 while keeping a copy of the original DD Form 214 in the veteran's file.  

		(3) Additionally, in Army BCMR (ABCMR) Docket Number AR20040006388, dated 25 September 2005, the ABCMR granted a transgender veteran partial relief by providing the applicant with a DA Form 1569 (Transcript of Military Record) under her legal name.  The decision to issue a new form under the veteran's legal name demonstrates the power the Board has to fashion equitable remedies even in the absence of written guidance.

		(4) BCMRs have alternatively claimed that internal guidance restricts their authority to amend DD Forms 214 to accommodate a name change after the Soldier's discharge because these military records are historical in nature.  This argument is based on the rationale that the military has an interest in preserving the accuracy of these historical documents.  While the military's interest in maintaining accurate records is understandable, this policy does not address the case of an injustice in the record.  The Board's authority to correct error must not be conflated with its ability to remove injustice in a veteran's record.  

		(5) Most states have concluded that birth certificates, once similarly considered historical, may be amended to accommodate an individual's name or gender change.  Previously, courts held that because birth certificates were historical records of the facts as they existed at birth, they could not be amended to accommodate an individual's name or gender change.  That most states have adjusted their laws demonstrates that such documents need not be treated as a permanent record when there are countervailing interests in reflecting a change in a person's status.  

		(6) A number of other Federal agencies permit transgender individuals to amend historical identification documents.  The SSA mechanism for a name change on a social security card simply involves providing a court order of name change.  The U.S. Department of State similarly permits transgender individuals to amend the name and gender marker on U.S. passports.  Over 4 years ago, the Department of State eliminated the requirement that transgender individuals show proof of sexual confirmation surgery to update the individual's gender marker on a passport.  Now, the only documentation necessary is a signed original statement under oath from the individual's physician.  

		(7) Because the Board's current practice diverges from the policies of 47 states and other Federal agencies, the applicant urges the Board to reconsider the policy prohibiting the changing of the DD Form 214.  The Board has the authority to take a different approach and, in order to prevent the continued injustice facing transgender service members, it should.  

	f.  In addition to the requested name change, the applicant asks that a reissued DD Form 214 make no reference to any other name she has used.  

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the U.S. Army Reserve, on 16 August 1990 the applicant enlisted in the Army National Guard (ARNG).  Her record shows she served under the name E_____ J_____ L___ until she was discharged from the ARNG and transferred to the Retired Reserve effective 1 June 2012 after completing    26 years, 1 month, and 14 days of total service for retired pay.

2.  As a member of the ARNG, she served on active duty for several periods, including the period 6 August 2010 to 20 September 2011.  Block 1 (Name (Last, First, Middle)) of her DD Form 214 for the period ending 20 September 2011 shows her name as "L___, E_____ J_____."  
3.  Her Official Military Personnel File maintained in the interactive Personnel Electronic Records Management System (iPERMS) contains:

	a.  a court order, dated 25 May 2012, changing her name from E______ J_____ L___ to J_______ M____ L___ and

	b.  a letter, dated 6 June 2012, from a physician who states the applicant is a transsexual woman who has had appropriate clinical treatment and has successfully undergone all medical and surgical procedures necessary to transition from male to female.  

4.  She provides the following documents reflecting her court-ordered name change:

* a New Jersey Auto Driver License 
* a social security card, dated 28 June 2012 showing the same SSN as that entered on her DD Form 214 for the period ending 20 September 2011
* United States Uniformed Services Identification Card

5.  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 REFRAD, 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.  Counsel accurately notes that 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, counsel has provided a compelling description of the unique circumstances of transgender individuals and how those circumstances may prevent or delay receipt of benefits for which these individuals must provide a DD Form 214 as proof of military service.  

2.  Considering the unique circumstances of transgender personnel, it would be appropriate to issue her a new DD Form 214 for the period ending 20 September 2011 with the name shown on her United States Uniformed Services Identification Card entered in block 1.  No entries should be made in block 18 of the reissued DD Form 214 listing her 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 her 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:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board did not see any error or injustice on the part of the Army.

2.  Therefore, the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice and 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)                                         AR20140013293





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ABCMR Record of Proceedings (cont)                                         AR20140013293



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