RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  02-00989
			INDEX CODE 100.01

			COUNSEL:  None

			HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The DD Form 214 issued upon retirement be changed to reflect the current legal name of “------.” rather than “-----.” 

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APPLICANT CONTENDS THAT:

On 12 February 2002, she underwent Gender Reassignment Surgery to correct her sex to female.  Many of her civilian records have now been corrected, including her birth certificate, to reflect her new name and gender.  

In support of her appeal, she submits a personal statement, copies of her birth certificate, medical certificate, passport, drivers' license, Department of Transportation FAA license, AFPC/DPSAMP letter and AF Form 281, Notification of Change in Service Member's Official Records, and a Naval Correction case file.

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

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STATEMENT OF FACTS:

The applicant retired from the Air Force on 1 November 1983 in the grade of master sergeant with 21 years, 1 month and 2 days of total active service.

On 4 February 2002, applicant was admitted to ---- Hospital in ----, ------, for the treatment of gender dysphoria by sex reassignment surgery.  Applicant's gender was changed to female and applicant's face was changed by facial feminization surgery.  Applicant's records include a certified copy of a 16 March 2001 order of the Superior Court of ----, --- County, ordering applicant's name change and the issue of a new birth certificate.

On 24 May 2002, HQ AFPC/DPSAMP advised the applicant that AF Form 281, Notification of Change in Service Member's Official Records, was forwarded to reflect her name change from "---- ----- ----- " to "------ ---- ------" in the military personnel data system (MilPDS), and indicated that this update would flow to her retired pay file.  DPSAMP further advised her that her DD Form 214, Certificate of Release or Discharge from Active Duty, will not be changed, as it accurately reflects her name on the date of her retirement (31 Oct 83).

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AIR FORCE EVALUATION:

AFPC/DPSAMP stated that the applicant's records correctly reflect the legal name/gender under which the applicant served and retired, and the Air Force and Department of Defense have no procedures in place in regards to making the change the applicant has requested.  In addition, DPSAMP reviewed the action taken by the Navy BCMR.  They found the existence of an injustice warranting partial relief in the cases the member enclosed.  However, DPSAMP did not see an injustice in the applicant's personnel record.  The Air Force personnel record correctly reflects the applicant's name and gender during the period of service and on the date of retirement.  The current name and gender information does not mirror the name and gender information contained in the personnel record.  Therefore, correcting the member's historical records is an unjustified action.  Additionally, a statement of service has no significance when verifying military service.  Any organization attempting to verify the applicant's service will ask for the DD Form 214.  In this case, the information on the DD Form 214 is correct as of the date the applicant retired from the United States Air Force.  As such, the applicant would have to provide the organization additional information concerning the discrepancy between the DD Form 214 and present circumstances.  Therefore, DPSAMP believes that issuing a statement of service, similar to the ones issued by the Navy, is an inappropriate action to take on this application. 

AFPC/DPSAMP complete evaluation is at Exhibit C.

AFPC/JA recommended denial of the requested action. Applicant has failed to present relevant evidence of any error or injustice warranting relief.  Although the Air Force has provided for a retiree to change his or her name by court order, the Air Force has made no provision for changing an active, reserve, or retired member's gender in its records. Our review of the law has not revealed a statute or case on point. The majority of federal court cases in the area deal with alleged discrimination against transsexuals-usually by employers, who are alleged to have violated Title VII of the Civil Rights Act of 1964 by firing the individual after he/she has undergone a sex change operation. The majority of courts that have considered the issue have held that transsexuals are not a protected class under the Act and that the term "sex" does not include transsexuals (see, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017,85 L.Ed.2d 304,105 S.Ct. 2023 (1985); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); and, Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977)). In other words, while an employer cannot discriminate against an employee because of the latter's sex (e.g., firing an employee because she is female); the employer can fire the employee because of his or her practices that grow out of transsexualism.  While such case law is not dispositive of the issue before us, it is instructive. Based on the discussion above, it is our opinion that the Air Force is not legally required to recognize a transsexual's gender change. Furthermore, neither Air Force policy nor regulation provides for such recognition.

With respect to the applicant's citation to the two Navy cases and her request for a "Statement of Service."  We note that, in each of these cases, the Board for the Correction of Naval Records refused the servicemember's request to change her DD Form 214, noting that correction of this form, or any other part of the service records, would be inappropriate since those records correctly show the servicemember's gender during active duty service.  The Navy Board did determine, however, that "it would be appropriate to create a document that will show [the member's] period of service with her present name and gender."  The Board referred to this document as a "Statement of Service" and further described it as a document that "sets forth the individual's name, other identifying data, and the period of time the individual served on active duty."

JA noted that DD Form 13, Statement of Service, for ----- ------, dated 23 September 1997, exists as part of applicant's master personnel record.  This DD Form 13 was evidently prepared in accordance with Air Force Regulation (AFR) 35-3, Service Dates, paragraph 5b(3): "...HQ AFMPC/MPCDOA automatically computes Total Active Federal Military Service (TAFMS) and pay date and distributes DD Form 13 on airmen who reenlist with more than 14 years of TAFMS."  There is no provision in AFR 35-3 for correcting a former member's DD Form 13 to reflect changes in gender occurring after discharge.  As noted above, correction of any part of a member's service records would be inappropriate since those records correctly show the member's gender during active duty service.

It is not clear to JA whether the so-called "Statement of Service" referenced in the Navy Board's opinions, and the DD Form 13 referenced in AFR 35-3, are one and the same.  No Department of Defense or Navy form numbers are identified in the Navy Board's opinions. If the Navy Board was advocating the creation of an entirely new document to be added to the applicant's military record, JA cannot recommend that the Air Force Board follow suit.  JA noted that applicable federal law and Air Force regulation authorize the Air Force Board to correct an applicant's military record when he or she demonstrates the existence of a material error or injustice that can be remedied effectively through such correction.  However, the creation of new documents for inclusion in an applicant's military record is not specifically authorized.

AFPC/JA complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluations and stated that she fully understands that to change history would defeat the purpose of documenting it.  She is requesting that the paymaster file be updated to reflect her gender so the DEERS may carry her correct status.  This will allow correct documentation and presentation, and preclude any problems at the Base hospital when she makes appointments for female clinics, and in the event that she marries and wants to enroll her spouse in the medical system, which then would cause an injustice, should this not be changed.  She is legally a female and her social security, birth certificate and other documents reflect her correct gender.  All she is asking for is a letterhead document with the subject being "Statement of Service for ---- -----, MSgt, and SSN", mirroring her DD Form 214.

Applicant'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 an error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief is warranted.  The applicant's DD Form 214 correctly reflects the name and gender during the period of service and once a member separates or retires from the military service, the DD Form 214 is not altered because of a post-service name change.  

4.	With respect to the applicant's request for a statement of service, the Board noted the action taken by the Navy correction board in directing that a document be created to show the member’s period of service and their present name and gender.  In the applicant’s case a statement of service already exists as a part of the military record and we believe that this statement of service, DD Form 13, dated 23 September 1997, is accurate and was prepared in accordance with the applicable regulation.  There are no provisions in AFR 35-3 for correcting a former member's DD Form 13 to reflect changes in gender occurring after discharge nor any provisions to provide a statement of service similar to that, which was issued by the Navy Board of Corrections.  More importantly, we find no compelling reason to treat this applicant differently than any other member similarly situated.

5.	In regard to changing the applicant's gender in the Defense Enrollment Eligibility Reporting System (DEERS), we are of the opinion that the Board lacks the authority to change any records within DEERS, which is not an Air Force record, or a system under the auspices of the Air Force.  Therefore, in view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 Docket Number 02-00989 on 16 October 2002 under the provisions of AFI 36-2603:

			

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPSAMP, dated 22 Aug 02.
   Exhibit D.  Letter, HQ AFPC/JA dated 30 Aug 02
   Exhibit E.  Letter, SAF/MRBR dated 6 Sep 02.
   Exhibit F.  Applicant's Response, 23 Sep 02.