RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02057

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The name on her DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to coincide with her legally changed name.

APPLICANT CONTENDS THAT:

Her name was legally changed.  The appearance of her former name on her DD Form 214 is an injustice as it reveals her transgender status and subjects her to the social stigma and discrimination transgender people face.

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

STATEMENT OF FACTS:

According to the applicant’s DD Form 214 she served from 6 March 2007 through 10 May 2007. 

A County Circuit Court order dated 25 March 2016, directed the applicant’s name be changed.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, E, F and G.  

AIR FORCE EVALUATION:

SAF/MR memorandum, Guidance to the Air Force Board for Correction of Military Records, dated 9 Mar 15, states that while the AFBCMR generally has the authority to correct an applicant’s records to reflect a legal change in the applicant’s name, it should exercise discretion is doing so.  In the past, the AFBCMR has rarely corrected a record to reflect a name change when the record in question was accurate at the time it was produced.  The Board may choose to depart from this precedent when the facts and/or equities can be distinguished from past denials and the applicant demonstrates that allowing the DD Form 214 to remain uncorrected would constitute an injustice.  Because the DD Form 214 is primarily created for the benefit of the veteran to establish entitlements to various government programs or in seeking employment with organizations that grant veteran’s preferences, a name change on the DD Form 214 may be appropriate when the veteran asserts that presenting their DD Form 214 which lists their old name effectively requires them to explain their personal history which they find needlessly intrusive and is thus an injustice.  This type of injustice may arise in situations such as when the name change is transgender related or associated with a divorce.  Therefore, correction to an applicant’s name on a DD Form 214 is only a reasonable outcome when the applicant clearly demonstrates that allowing the DD Form 214 to remain uncorrected would constitute an injustice.  This memorandum is advisory only and is not intended to predetermine outcomes or otherwise restrict the AFBCMR’s authority.

A complete copy of the SAF/MR guidance is at Exhibit C.

AFPC/DP2SSM recommends denial indicating there is no evidence of an error or an injustice.

The governing Air Force instruction states do not correct records of former members unless evidence proves the name used while serving with the Air Force was erroneously recorded.

A review of the evidence of record revealed the applicant enlisted, served and was discharged under the name reflected on her DD Form 214.  In addition, DP2SSM recommends that the applicant’s request be forwarded to the appropriate for final consideration as they are not the deciding entity for updating the DD Form 214.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

AFPC/DPT2STM recommends denial indicating there is no evidence of an error or injustice.

The Department of Defense Instruction (DoDI) 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series)  and AFI 36-3202, Separation Documents, are the governing directives for the DD Form 214 and state the DD Form 214 will “provide an accurate and complete summation of active military personnel service.”  At the time of discharge, the applicant’s name was accurately recorded.  Furthermore, the governing directives do not provide authority to change the contents of the DD Form 214 that have an effective date after the close out date of the document and did not occur during the period of recorded military service.  The effective date of the name change is after the effective date of the period of service recorded on the DD Form 214.  The application of this directive is across all branches of service.

A complete copy of the AFPC/DP2STM evaluation is at Exhibit E.

AFPC/JA recommends granting relief indicating there is evidence of an injustice.  

The AFI 36-2608, Military Personnel Records System, states do not correct records of former service to show name changes occurring after discharge.”  

The SAF/MR memorandum envisions approval of name changes occurring after discharge in cases where applicants are able to show that failure to do so would constitute an injustice.  Specifically, SAF/MR contemplated situations wherein applicants who are transgender may meet the burden of showing an injustice if the applicants’ presentation of a DD Form 214 that lists an old name effectively requires them to explain their personal history that they find needlessly intrusive and thus an injustice.

The applicant’s DD Form 214 accurately reflects her name at the time of discharge.  The applicant has provided adequate proof of a legal name change, through a County Circuit Decree.  Furthermore, the relief requested is relatively limited and is tailored to spare the applicant the need to explain her personal history to whomever the DD Form 214 is presented.  

JA believes the applicant has presented information similar to that described in the SAF/MR memorandum and recommends the request be disposed of consistent with the SAF/MR memorandum providing guidance on evaluation of “injustice” for name change requests. 

A complete copy of the AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the evaluations provided by AFPC/DP2SSM and AFPC/DP2STM (the Negative Opinions) and request that the Board reject their recommendations.  However, she agrees with the recommendation from AFPC/JA and request the Board act on her application "consistent with the governing guidance issued to the BCMR by SAF/MR." 

The Negative Opinions conflict with precedent of the Board, which has already granted the relief she is requesting for an identically situated individual.  Although the Board recognized its existing practice of rejecting changes to "the applicant's original DD Form 214," the Board appropriately concluded that the applicant's original DD Form 214 was "a hindrance to the applicant should she be required to provide documents to a servicing facility for her needs, such as insurance companies, hospitals, places of employment, etc."  The Board also concluded that it had the legal authority to issue an additional DD Form 214 reflecting the change in name, ordering that relief and directing that the applicant's original DD Form 214 be maintained in the applicant's military records.  A copy of the 2004 decision is attached.

In light of this precedent, the Negative Opinions' recommendation that her request be denied because of failure to provide evidence that an injustice has already occurred is flawed and if followed, would, itself, create an injustice.  It is flawed because it denies the fact that the Board's prior decisions were premised on the potential for the occurrence of an injustice in the future.  In the decision cited above, the Board granted the requested relief because of the potential for "a hindrance to the applicant should she be required to provide documents to a servicing facility for her needs, such as insurance companies, hospitals, places of employment, etc."  The relief she is requesting was granted without the applicant showing a past injustice had already occurred; the real possibility of an injustice occurring in the future was sufficient.  Her request falls squarely within the Board's prior reasoning, and the same result should follow.

The Negative Opinions would create an injustice if accepted because it would require her to subsequently suffer an injustice that the Board had the authority and opportunity to prevent, and chose not to do so.  The very real and significant potential for a transgender individual to be subjected to discrimination is well-documented.  There is no federal law that consistently protects transgender individuals from employment discrimination.  Only 17 states and the District of Columbia provide protection from employment discrimination on the basis of gender expression.  As a result, transgender veterans face serious possibilities of discrimination in employment.

Furthermore, as indicated in the advisory opinion of the AFPC/JA, the relief she is requesting is supported by a memorandum from SAF/MR.  According to the memorandum, a working group composed of the Directors of the Army and Air Force Review Boards and SES representatives from the Navy M&RA, OSD/GC, and OUSD/P&R "concluded that a records correction, limited to the DD Form 214, was a reasonable outcome when the applicant demonstrates that allowing the DD Form 214 to remain uncorrected would constitute an injustice, even if it were technically correct when issued.

Moreover, both the Army Board for Correction of Military Records and the Board for Correction of Naval Records have granted relief in line with the AFBCMR 2004 decision.  In January 2015, the Army Board issued a decision in favor of a transgender Army veteran seeking new DD Forms 214 reflecting a name change.  In ABCMR No. AR20140004880, the Army Board concluded that "it would be appropriate to issue the applicant a new DD Form 214."

The Navy Board followed with a decision in January 2015 that brought all three Boards in agreement on this issue.  In this decision, the Navy Board concluded that Block 1 of a transgender Navy veteran's DD Form 214 "should be corrected" to reflect the veteran's changed name, and that the veteran should "be issued a 'new' DD Form 214 which reflects the [changed] name."  The Board's reasoning is also instructive here: "[N]ormally a DD Form 215 would be issued to correct the record[;] however, the Board concluded that that a new and updated DD Form 214 is warranted to eliminate the possibilities of invasive questions and other potential discrimination against the Petitioner." 

Given the recent decisions of the Army and Navy Boards, a decision in accordance with the Negative Opinions in her case would create disparate treatment among similarly situated veterans.  As in the Army Board's decision, she has given a compelling description of how the failure to provide the relief requested may prevent or delay receipt of benefits.  As in the Navy case, she has explained how denial could subject her to potential discrimination and harassment.  The Board's action is necessary to prevent these injustices.  Yet if the Board follows the Negative Opinions here, transgender veterans who served in the Army and Navy would obtain relief, while Air Force veterans, such as herself, would be denied.  The outcome on this important issue should not depend on the branch of service in which the transgender veteran happened to serve.

Accordingly, she respectfully request that the Board follow its own precedent and the guidance of the SAF/MR, and maintain uniformity with the Army and Navy Boards on this issue by granting the relief requested,-specifically, changing Block 1 of her DD Form 214 to coincide with her legally changed name and issue a new DD 214 reflecting the change.

A copy of the Applicant’s response, with attachments, is at Exhibit H.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed. 

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant changing the applicant’s name on her DD Form 214.  Although the applicant’s DD Form 214 was technically correct at the time it was issued, it is our opinion that should the applicant be required to present her DD Form 214 with her former name to external audiences; the applicant’s circumstances would require her to disclose personal history that is needlessly intrusive.  Therefore, we believe allowing the applicant’s DD Form 214 to remain uncorrected would constitute an injustice.  Further, we find the applicant’s certified court order, social security card and other forms of state issued IDs, which reflect her name change, provide sufficient proof that her name was legally changed.  Accordingly, we recommend the applicant’s name be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with the 10 May 2007 discharge, be declared void, a new DD Form 214 be issued to reflect the current legal name in Block 1, and no entries be made on the reissued DD Form 214 indicating the name was changed or the DD Form 214 was administratively reissued.

The following members of the Board considered AFBCMR Docket Number BC-2016-02057 in Executive Session on 27 July 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02057 was considered:

	Exhibit A.  DD Form 149, dated 17 May 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, SAF/MR, dated 9 Mar 15.
	Exhibit D.  Letter, AFBCMR, dated 25 Jul 16.
	Exhibit E.  Memorandum, AFPC/DP2STM, dated 20 Sep 16.
Exhibit F.  Memorandum, AFPC/DP2SSM, dated 29 Jul 16.
Exhibit G.  Memorandum, AFPC/JA, dated Letter, 16 Nov 16.
Exhibit H.  Letter, AFBCMR, dated 10 Mar 17.
	Exhibit I.  Letter, Applicant, dated 24 Mar 17, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.