IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140015885 


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, in effect, that her military records be corrected by:

   a.  issuing a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) with her current name, Matxxxx Jxxx Dxxxx, and Social Security Number (SSN), XXX-XX-XX18; or
   
   b.  reissuing of a new complete DA Form 1569-E (Transcript of Military Record) incorporating all previous corrections; and
   
   c.  providing her information under the Freedom of Information Act (FOIA).
   
2.  The applicant states:

Subject 1.  Violation of medical privacy by the discriminatory use of the argument of Historical Significance, regarding records and refusal to amend said documents, such as the DD Form 214. 

2.  Freedom of Information Act records request.

I joined the military as a male, but displayed divergent gender characteristics.  I tried to live my life as male even though it became clear that I was what is referred to as Hermaphrodite (intersexed not transsexual).  After medical intervention I became legally and medically female, sued the U.S. Government to be tracked and referred to as female an(d) received that legal right.  See contract C02CV 05440RBL and sealed order 2011.

The military through the Board of Corrections of Military Records then issued me a DA Form 1569-E, in the name Mattxxx Axx O'xxxxxxxxx, but then refused to amend the form in 2009 when I was awarded credit for a service campaign ribbon for my service in Panama.

1.  Please identify who has access to my military records, specifically this is a FOIA request for you to reveal the identity of all people and government agency you have released my records to.

2.  Please issue me a DD Form 214 in my correct female name and gender.  You must also close all records that refer to me as a male per the legal argument.
   
3.  In a second submission she also states she believes it is possible and proper to create a "living" document to show any and all corrections to her records; thereby, protecting her privacy as a gender reassigned person.  She does not live in the past.  Her records should recognize and reflect her status as it is now.

4.  The applicant provides – 

* two DD Forms 214
* a 23 January 2009 DD Form 215 (Correction to the DD Form 214)
* a 23 September 1997 court order name change 
* a 24 February 1998 court order name change 
* a 15 June 1998 court order allowing for recognizing of her sex reassignment surgery and directing a correction of her birth certificate
* an 18 January 2002 name change court order 
* a 3 June 2004 name change court order 
* a 6 January 2006 name change court order
* a 19 July 2011 court order sealing her records
* 3 June 2000 reissued State of California Department of Public Health Amendment of Birth Record
* 3 June 2000 reissued State of California Certificate of Live Birth
* two 10 October 2000 DA Forms 1569-E
* a 3 March 2003 Settlement and Stipulated Dismissal in the case of Mattxxx A. Oxxxxxxxxxxx v. the Department of Veterans Affairs Number C02-5440FDB
* a 1 July 2009 Report of Confidential Social Security Benefit Information 
* a 1 April 2011 medical history and statement
* ABCMR Record of Proceeding AR1999034625
* ABCMR Record of Proceeding AR20070000386 
* ABCMR Record of Proceeding AR20080010965
* ABCMR administrative closure letter (AR20020011945)
* an 8 November 2011 DD Form 1172 (Application for Uniformed Services Identification Card  DEERS Enrollment)
* copies of seven Drivers Licenses
* a Marine Corps Times article
* a Correction Law Report article

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's request for information under the FOIA, in effect, is for information from three different agencies, the Department of the Army (DA), the Department of Veterans Affairs (VA), and the U.S. National Archives and Records Administration (NARA).  The release of information under FOIA is not within the authority of the ABCMR.  To get information under the FOIA, the applicant must make a proper "FOIA request."  This is a written request in which she describes the information she wants, and the format she wants it in, in as much detail as possible.  The applicant should be aware that the FOIA does not require agencies to do research for her, analyze data, answer written questions, or create records in response to her request.  The applicant is referred to the U.S. Department of Justice FOIA.gov website for information on the proper manner to make a FOIA request and the proper offices to which she should submit her requests.  Since the ABCMR lacks the authority to act on this portion of her request this issue will not be further addressed.  

3.  The applicant's requests correction of her records to reflect her name and gender changes has been denied on three prior occasions and an additional request was administratively closed without action.  Under normal considerations this portion of her request would be administratively closed as she has been denied the requested relief on three occasions.  However, at the current time, policy changes related to the processing of gender reassignment issues are still pending finalization.  The ABCMR has been directed to take a proactive stance and evaluate cases of this nature with a compassionate eye due to the unique circumstances faced by gender reassignment personnel.  Therefore, it is appropriate to review the applicant's request for a name change by waiving the limitation of the reconsideration time frame and number of reconsiderations of a given issue as an exception to the existing policy.

4.  The applicant's request for a correction of her SSN is a new issue warranting Board review.  

5.  The applicant was born on 12 November 1959 and raised as a male under the name Mattxxx Sxxxxxx Dxxxx.  

6.  On 23 November 1976, the applicant entered active duty and served as a male under the name Mattxxx Sxxxxxx Dxxxx.  The applicant was honorably discharged on 27 April 1978 due to a preexisting disqualifying medical condition.  The SSN utilized during this period of service is shown as XXX-XX-XX89.

7.  The applicant reentered active duty on 13 July 1989, again as a male under the name Mattxxx Sxxxxxx Dxxxx, and was honorably released on 27 April 1990 by reason of hardship.  The SSN utilized during this entire period of service is shown as XXX-XX- XX89.

8.  On 23 September 1997, the District Court for Thurston County, State of Washington granted the applicant a legal name change from Mattxxx Sxxxxxx Dxxxx to Malxxxx Axx Sxxxxx O'xxxxxxxxxx.

9.  On 1 February 1998, the applicant underwent gender assignment surgery – male to female.  In the related medical statements provided, the attending physician states that although the applicant was raised as a male, the applicant also exhibited atypical secondary gender developments and identified herself as a female.  During the applicant's childhood the applicant underwent medical intervention for undescended testacies and received male hormone therapy between the ages of 10 and 15.  After the onset of puberty the applicant developed female breasts and the applicant does not exhibit an enlarged Adams Apple common in most males.  Following surgery, the applicant is now medically and legally a female.

10.  On 15 June 1998, the Superior Court of Washington in and for Thurston County granted the applicant's petition to have her birth records corrected to show her birth name as Malxxxx Axx Sxxxxx O'xxxxxxxxxx and to change her gender from male to female.

11.  On 24 December 1998, the Circuit Court of Oregon for the County of Multnomah granted the applicant's request to change her name from Malxxxx Axx O'xxxxxxxxxx to Malxxxx Axx Dxxxx.  

12.  On 9 November 1999, the applicant applied for a correction of her records to reflect her name and gender change in addition to a reconsideration for award of the Combat Infantryman Badge.  The ABCMR Proceedings (AR1999034625), dated 10 February 2000, denied the reconsideration and the correction to her DD Forms 214 but directed that DA Forms 1569-E be issued in the name of Malxxxx Axx Sxxxxx O'xxxxxxxxxx reflecting the basic service information of each of her periods of service.  (Note: The DA Form 1569-E is no longer an active official working document.)

13.  On 25 January 2002, the Grays Harbor County (Washington) District Court granted the applicant's request to have her name changed from Malxxxx Axx Dxxxx to Matxxxx Jxxx Dxxxx.

14.  The court directed action to change the applicant's birth name and gender on her birth certificate does not appear to have been acted on by the State of California until 24 January 2003 when an amended Birth Certificate was issued.  At that time the amended certificate was issued the applicant's birth name and gender were changed to Malxxxx Axx Dxxxx – female.

15.  On 3 March 2003, the U.S. District Court Western District of Washington at Tacoma in the case of Malxxxx A. Oxxxxxxxxxxx v. the VA, Puget Sound Health Care System, Portland Veterans Hospital, Gxxxxxx Sxxxxxxxxx, and Bxxxx Gxxxxxx (Case Number C02-5440FDB) issued a Settlement and Stipulated Dismissal stating in part:

	a.  the VA, Puget Sound Health Care System, instead of referring the applicant for private care was to reinstate her medical care at the Puget Sound Health Care System;

	b.  the VA agreed to close and sequester the applicant's old paper medical records that contained references to her former gender, and to start, beginning January 2003, a new medical file;

	c.  a flag was to be placed in the applicant's computer records which will be a crisis note that says "Veteran shall be described as female in all written and verbal communications.  She is medically and legally a hypogonadal female.  All notes should be consistent with this."

16.  On 3 June 2004, the District Court for Thurston County, State of Washington granted the applicant a legal name change from Matxxxx Jxxx Dxxxx to Fxxxxx Matxxxx Dxxxx-Rxxxxx.

17.  On 19 January 2006, the District Court for Thurston County, State of Washington granted the applicant a legal name change from Fxxxxx B. Axxxxxxx Rxxxxx back to Matxxxx Jxxx Dxxxx.

18.  On 23 January 2009, a DD Form 215 was issued to add the applicant's award of the Armed Forces Expeditionary Medal to the 27 April 1990 DD Form 214.  The name on the DD Form 215 is Mattxxx Sxxxxxx Dxxxx, apparently because the document being corrected also bears that name.

19.  On 1 July 2009, the Social Security Administration, issued a Report of Confidential Social Security Benefit Information.  It states that according to their records the SSN XXX-XX- XX89 was replaced with the SSN XXX-XX-XX18 for Matxxxx Dxxxx. 

20.  On 10 May 2011, the applicant filed a motion for Contempt and Injunctive Relief with the U.S. District Court Western District of Washington at Tacoma, against the VA.  She alleged that the VA had breached the 3 March 2003 settlement agreement because her new providers (in Alabama and Florida) had not protected her medical privacy and refused to refer to her as a female.  She sought to have all VA Medical Centers and Eglin Air Force Base comply with the settlement. 

21.  On 19 July 2011, the U.S. District Court Western District of Washington at Tacoma in the case of Matxxxx Jxxx Dxxxx v. the United States of America and the VA, case Number C02-5440RBL, denied the applicant's motion.

22.  On 8 November 2011, the applicant was issued a Uniformed Services Identification Card under the name Matxxxx J. Dxxxx.  Her entitlement to this card is shown as based on a VA permanent total disability.

23.  On 31 July 2012, the applicant's request for an ABCMR reconsideration of her name and gender changes was administratively closed in accordance with Army Regulation 15-185, paragraph 2-15b.


24.  The U.S. National Archives and Records Administration (NARA), a part of the General Services Administration, is the repository of retired official governmental records including but not limited to the paper copies of former service members service records.   The safe keeping of and access to those records is the responsibility of NARA and any FOIA request related to what actions and information is released from those records in their possession is the responsibility of NARA not the DA.

25.  A service member's military medical records are transferred to, on indefinite loan, the VA when the service member requests VA benefits.  The safe keeping of and access to those records is the responsibility of the VA and any FOIA request related to what actions and information is released from those records in their possession is the responsibility of the VA not the DA. 

26.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

   a.  Paragraph 1-8 directs the ABCMR to direct or recommend changes in military records to correct an error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record, and deny applications when the alleged error or injustice is not adequately supported by the evidence.
   
   b.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
   
   c.  Paragraph 2-15b, Reconsideration of ABCMR, decision states that an applicant may request the reconsideration of an ABCMR decision under the following circumstances:

   (1) If the ABCMR receives the request for reconsideration within 1 year of the ABCMR’s original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR’s prior consideration.  If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice.  If no new evidence is found, the ABCMR staff will return the application to the applicant without action.
   (2) If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.
   
27.  Army Regulation 635-8 (Separation Processing and Documents) 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.
   
DISCUSSION AND CONCLUSIONS:

1.  NARA and the VA are separate governmental entities from the DOD and DA.  While some aspects of the agencies are inter-related, based on the generation of, storage of, and use of military service and medical records they operate under different laws and regulations specific to each agency.  The ABCMR has the authority to correct only those records or documents that were created by the Army.  Operations, practice, and actions of the other agencies are governed by their respective laws and regulations.


2.  The applicant's contention that the ABCMR's denials to change her name and gender in the existing Army records is discrimatory, violates her medical privacy, and denies her rights to VA medical care and benefits is not supported by the evidence of record.  

3.  The ABCMR directed the creation of the DA Forms 1569-E to specifically allow disclosure of service information without reference to her gender reassignment while protecting the historical integrity of the records.  Complaints about how she is being treated or references to her gender identity made by VA medical facilities and personnel are not within the scope of authority for action by the ABCMR.

4.  A DD Form 214 is not now, never has been, and cannot ever be considered or used as a "living" document.  It is a snapshot of facts that were in evidence as of the date it was issued and reflects the situation, circumstances, and facts as they were on that date.  Additionally, the DD Form 214 does not have a reference to a service member's gender other than what may be inferred by their name.  

5.  In order to provide her some relief the ABCMR previously directed that the DA Forms 1569-E be created, affording her an alternative record of service utilizing her legal name as of the date of the creation of those forms.  There is no policy or procedure regulation for correcting this form.  While voiding and reissuing of the DA Forms 1569-E would be an easy remedy because the DA Form 1569-E is no longer an official working document correction, or reissue of this form would not be appropriate.  

6.  The ABCMR denied the applicant's prior requests to correct her DD Forms 214 and DA Form 1569-E on the basis that these documents are historical documents that should reflect the record as it existed at the time they were created.  The underlying reasoning has been, and in most cases still is, that a post-service name change does not retroactively create an error on the DD Form 214.  This is still true.  
 
7.  The defendants in the 3 March 2003 U.S. District Court Western District of Washington court case were the VA and associated VA medical facilities or personnel.  

8.  The 19 July 2011 U.S. District Court Western District of Washington at Tacoma court document, while initially citing the U.S. Government as a generic defendant, was refined in the court action to specifically the VA and Eglin Air Force Base medical facility.  

9.  In neither of the court cases was the DA named as co-defendants.  Since the DA was not a party in the court cases the applicant's contention that they are binding on the ABCMR is not valid.  Further, the second court suit denied the applicant's request for further "protections."

10.  The evidence of record shows that the applicant enlisted on both 23 November 1976 and 13 July 1989 under the legal name and SSN of Mattxxx Sxxxxxx Dxxxx XXX-XX-XX89.  The applicant served and was honorably discharged on both 27 April 1978 and 27 April 1990 under the name and SSN of Mattxxx Sxxxxxx Dxxxx XXX-XX-XX89.  The DD Forms 214 were properly and legally completed and issued at that time.

11.  The applicant did not (first) legally change her name until eight years after her second discharge, did not complete her gender reassignment until nine years after her discharge, and she was not issued a new SSN until ten years after her second discharge.

12.  Notwithstanding the above facts and findings, the ABCMR has been directed to consider the unique circumstances and problems of gender reassignment individuals and the confusion created by the DD Form 214 being under a name other than the current former service members.  

13.  Therefore, although no error is found in the records as they were created, in light of this unique situation it would be appropriate to grant the applicant's request to issue her new DD Forms 214 for the periods ending 27 April 1978 and 27 April 1990 to show her name change.

14.  The applicant has legally changed her name at least five times since her last discharge with at least two additional variations of her name being used in the legal documents provided.  Additionally, the applicant signed one of her current requests with a name not among those for which she has a provided a legal name change court order.  Only once was her name change obviously related to her gender reassignment.  

15.  To avoid confusion created by the multiple legal name changes, the most appropriate name to be utilized on the new DD Forms 214 would be her that of her court approved name as set forth in this application, Matxxxx Jxxx Dxxxx.

16.  To avoid confusion created by the issuance of the new SSN under her amended name, it would be appropriate to utilize the new SSN on the new DD Forms 214 with the inclusion of the following note at block 18 (Remarks) "Service member also served under the SSN XXXX-XX-XX89."

17.  No entries should be made in block 18 of the reissued DD Forms 214 listing her pervious names.  Doing so would undermine the purpose of granting relief.  

18.  Additionally, the new DD Forms 214 should incorporate the corrections/additions shown on the DD Form 215 and in the remarks section on the DA Forms 1569-E.  The previous DD Forms 214, the DD Form 215, and the DA Forms 1569-E should then be voided.

19.  The proposed relief is limited to the DD Forms 214, DD Form 215, and DA Forms 1569-E and does not extend to any other documents in the applicant's military record.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the 27 April 1978 and 27 April 1990 DD Forms 214, 23 January 2000 DD Form 215, and the two 10 October 2000 DA Forms 1569-E;

	b.  issuing new 27 April 1978 and 27 April 1990 DD Forms 214, utilizing the name and SSN noted above with the incorporation of the additions/corrections reflected on the 2000 DD Form 215 and the two DA Forms 1569-E.



      _______ _   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)                                         AR20140015885



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ABCMR Record of Proceedings (cont)                                         AR20140015885



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