RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2001-03343
				INDEX CODE: 110.00

				COUNSEL:  

	 			HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 Sep 07

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APPLICANT REQUESTS THAT:

His first name on his DD Form 214 and Request & Authorization for Separation be changed from X (female) to X (male).

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APPLICANT CONTENDS THAT:

After separating from the Air Force, he underwent a legal name change.  He wants to ensure his DD Form 214 and other records are corrected accordingly.

The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant entered active duty on 20 May 89 and served as a surgeon until he requested separation effective 30 Jun 01.  The applicant was twice nonselected for promotion to the grade of lieutenant colonel.  As a result, after 12 years, 1 month, and 11 days of active service, the applicant was honorably discharged [sic] from active duty in the grade of major on 30 Jun 01.

On 1 Oct 01, the CA, Superior Court legally changed the applicant’s name from X (female) to X (male).

In a DD Form 149 dated 10 Nov 01 (Exhibit A), the applicant requested his DD Form 214 and military records reflect his new name.  He submitted his military ID card, his driver’s license and Social Security card, all reflecting his new first name. 

On 26 Dec 01, HQ AFPC/DPPRSP advised the applicant his DD Form 214 had been corrected to reflect he was released, rather than discharged, from active duty and transferred to the Air Force Reserves (USAFR) with a Reserve obligation date of 29 Jun 04 (Exhibit A).  However, HQ Air Reserve Personnel Center (ARPC) indicated they could not change his female first name on that document.  His application would be forwarded to HQ ARPC regarding the name change issue based on the facts of his release.

By letter dated 24 Mar 04, the applicant’s counsel queried the Director of the Air Force Review Boards Agency about changing the applicant’s name on his DD Form 214 (Exhibit A).  Counsel advised his client underwent a sex change operation from female to male and a first name change from X to X.  He contended various public or quasi-public institutions had corrected their records accordingly.  The DD Form 214 is a critical document which has continual public exposure as one passes through life.  It is essential this document be changed; it was not completely clear to him why it could not be.  Both the DD Form 214 and the Request and Authorization for Separation should be changed to reflect the requested name.

On 28 Jul 04, HQ ARPC/DPS advised the applicant his DD Form 149 would not be referred to the AFBCMR because his “record” had been administratively changed to reflect his name as X (Exhibit A).

On 23 Nov 04, the AFBCMR Deputy Executive Director advised counsel that HQ AFPC had administratively resolved to reflect his client’s name as X on the DD Form 214 (Exhibit A).

On 5 Dec 05, HQ ARPC/PSDD1 advised the applicant his request to have his name changed to X on his DD Form 214 was prohibited because, at the time of his separation from active duty, the DD Form 214 was correctly issued to reflect the name of X (Exhibit A).  His name change was posted to his military personnel record jacket and in the personnel data system.  Air Force records policy was not to change documents located within the records jacket to show changed items such as a Social Security number or name.  He was referred to the AFBCMR for any further action.

By Email dated 21 Feb 06, counsel demanded HQ ARPC immediately change the applicant’s name per the AFBCMR’s 23 Nov 04 letter (Exhibit A).  By letter dated 22 Feb 06, the HQ ARPC attorney cited HQ ARPC/PSDD1’s 5 Dec 05 letter and explained to counsel his client’s record had been administratively changed for all future documentation (Exhibit A).  However, the documents that are the federal record of past military relationship could not be administratively changed.  Further, the AFBCMR had not directed HQ ARPC to make any changes.

On 6 Mar 06, counsel wrote to the AFBCMR Executive Director contending the AFBCMR and his client were misled by HQ ARPC (Exhibit A).  He requested the AFBCMR remedy the situation.  As a result, the applicant’s case was reopened.

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AIR FORCE EVALUATION:

HQ ARPC/DPS recommends denial.  They concede their 28 Jul 04 letter to the applicant was not clear in that the name change could only be proactive, not retroactive, precluding change to his DD Form 214.  They complied with AFI 36-2608, Military Personnel Record System.  The applicant’s name on his Military Personnel Record (MPR) cover and in the military personnel data system was changed.  Because of the historical nature of the records, they do not change the name on other documents within the record to include the DD Form 214.  This request is no different from that of military members who change their name as a result of marriage or other legal proceeding.  When that occurs, the member requests the record be changed to reflect the new name.  As in this case, only the AF Form 10 (Unit Personnel Record Group) and the military personnel data system are changed.

A complete copy of the evaluation, with attachments, is at Exhibit B.

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COUNSEL’S REVIEW OF AIR FORCE EVALUATION:

Counsel rebutted the advisory opinion, contending this case is different from that of a military member who changes his/her name as a result of marriage or legal proceeding because his client was a woman and is now a man.  Only the DD Form 214 need be changed because, as a plastic surgeon, the applicant utilizes this document for licensure applications and other professional matters.  As the Social Security number has not changed, the applicant’s military records are readily identifiable for national security and other purposes.

A copy of counsel’s rebuttal is at Exhibit D.

By letter dated 13 Jun 06, the AFBCMR Staff forwarded sanitized copies of Records of Proceedings (ROPs) of similar cases decided by other AFBCMR panels to counsel for review within 20 days (Exhibit E).  Copies of these ROPs would be provided for the Board’s review.  

Counsel responded contending the related case does not reflect today’s reality.  His client is required to disclose his military status on a regular basis, which shows he is a woman.  His client is not a freak but a male physician with nothing feminine about 
him.  Every “civilized governmental agency on the planet” has changed his name.  Counsel respectfully requests his client’s name on the DD Form 214 be changed.

Counsel’s complete response is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.
2.	The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.
3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  While we are not unmindful of the applicant’s situation, the fact remains he had a female name and gender during his military service and at the time of his discharge.  Therefore, the DD Form 214 is correct as issued.  The applicant’s name has been administratively changed on his record cover and in the military personnel data system, but the historical documents in his record reflect the name and gender he had at the time of their origination.  Further, the applicant has not established to our satisfaction the name and gender inconsistencies cause such harm that an exception to the policy applied to others similarly situated is warranted.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 13 September 2006 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2001-03343 was considered:

   Exhibit A.  DD Form 149, dated 10 Nov 01, and Counsel’s 
                  Letters, dated 24 Mar 04 and 6 Mar 06, w/atchs.
   Exhibit B.  Letter, HQ ARPC/DPS, dated 21 Mar 06, w/atchs.
   Exhibit C.  Letter, SAF/MRBR, dated 24 Mar 06.
   Exhibit D.  Letter, Counsel, dated 2 May 06, w/atchs.
   Exhibit E.  Letter, AFBCMR, dated 13 Jun 06.
   Exhibit F.  Letter, Counsel, dated 14 Aug 06.