IN THE CASE OF:	

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140013787 


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 his DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 26 April 1993 to conform to a court-ordered name change.

2.  He defers to his counsel's statement. 

3.  He provides:

* statement from counsel
* court order changing his name
* State of New Jersey Certificate of Birth
* New Jersey Auto Driver License
* social security card
* DD Form 214 for the period ending 26 April 1993
* Record of Proceedings for Air Force Board for Correction of Military Records (AFBCMR) Docket Number BC-2003-04051

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 for the period ending 26 April 1993 to conform to a court-ordered name change.  

2.  Counsel states:

	a.  The applicant enlisted in the New Jersey Army National Guard (NJARNG) in 1982, and he served on active duty for 9 years between 1983 and 1993.  He was released from active duty (REFRAD) on 26 April 1993.  

	b.  On 5 August 2011, he obtained a court order changing his name to N______ A______ B____.  On 21 May 2012, the State of New Jersey issued him a new Certificate of Birth reflecting his current legal name and male gender.  On 16 September 2011, the State of New Jersey issued a driver's license under his current name.  On 12 April 2013, the Social Security Administration (SSA) issued him a new social security card under his current name.  The date of birth (DOB) and the social security number (SSN) match the DOB and SSN listed on his DD Form 214 for the period ending 26 April 1993.  

	c.  It is in the interest of justice that he requests his DD Form 214 be changed to reflect his 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 he has used.  

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 214 for the period ending 26 April 1993 shows he served on active duty as a member of the NJARNG from 4 August 1983 through his honorable REFRAD on 26 April 1993.  Block 1 (Name (Last, First, Middle)) of this DD Form 214 shows his name as "B____, C______ A_________."  

2.  He provides:

* a court order, dated 6 September 2011, changing his name from "C______ A_________ B____" to "N_______ A______ B____" 
* a State of New Jersey Certificate of Birth issued on 21 May 2012 showing his name is "N_______ A______ B____" and his sex is "male"
* a New Jersey Auto Driver License reflecting his name change
* a social security card, dated 12 April 2013, reflecting his court-ordered name change and showing the same SSN as that entered on his DD Form 214 for the period ending 26 April 1993

3.  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 the applicant a new DD Form 214 for the period ending      26 April 1993 with the name shown on his 21 May 2012 Certificate of Birth entered in block 1.  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:

________  ________  ________  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)                                         AR20140013787





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ABCMR Record of Proceedings (cont)                                         AR20140013787



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