RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04928

	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

1.  The name on her DD Form 214, Certificate of Release or Discharge from Active Duty, dated 27 Aug 84, be changed to coincide with her legally changed name.

2.  Her general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT CONTENDS THAT:

She has been diagnosed with Gender Dysphoria and her name has been legally changed.  It has been 33 years since she made an error in judgement and she would like her discharge upgraded.  In support of her request, she provides evidence of her gender transition and a letter from her psychologist.  The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant served in the Regular Air Force from 5 Oct 81 to 27 Aug 84 and was separated with a general (under honorable conditions discharge) service characterization.  Her narrative reason for separation is “Misconduct-Civilian Conviction.”

On 22 Aug 14, according to documentation provided by the applicant, her nurse practitioner declared that she has had the appropriate clinical treatment for gender transition to female.

On 9 Jul 15, according to documentation provided by the applicant, the District Court ordered the applicant’s name be changed.

On 7 Sep 17, a request for post-service information, was forwarded to the applicant for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

For more information, see the excerpt of the applicant’s record at Exhibit B, the SAF/MR guidance at Exhibit C, and the advisories at Exhibits E-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 Board generally has the authority to correct an applicant’s records to reflect a legal change in the applicant’s name, it should exercise discretion in doing so.  In the past, the Board 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 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.  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 constitute an injustice when the veteran asserts that presenting a DD Form 214 that lists the old name effectively requires a needlessly intrusive explanation of personal history.  This type of injustice may arise in situations such as when the name change is transgender-related or associated with a divorce.  Therefore, correction of an applicant’s name on a DD Form 214 is a reasonable outcome only when the applicant clearly demonstrates that allowing the DD Form 214 to remain uncorrected would constitute an injustice. 

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

AFPC/DP2SSM recommends denying the applicant’s request for a name change.  Air Force Instruction 36-2608, Military Personnel Records System, states, “Do not correct records of former members to show name changes occurring after discharge.”  The applicant enlisted, served, and was discharged with the name reflected on her DD Form 214.  

The complete advisory is at Exhibit E.

AFPC/DP2STM recommends denying the applicant’s request to upgrade her discharge.  The applicant was discharged under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-48 (Civilian Conviction).  Based on the presumption of regularity, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  

The complete advisory is at Exhibit F.

AFPC/JA recommends granting the applicant’s request for a name change.  The applicant has provided adequate proof similar to that described in the SAF/MR memorandum.  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.  However, they recommend denying the applicant’s request to upgrade her discharge.  AFR 39-10 was in effect at the time of the applicant’s misconduct and indicates that a general discharge service characterization was authorized for separation based on civilian convictions.  There is no evidence in the applicant’s military record to indicate that her discharge characterization was erroneous or unjust.  Although the applicant’s discharge documentation is unavailable, she admits to making an error in judgment; however, without specifics or knowledge how egregious the misconduct was, her statement does not dispute civilian conviction as a basis for the discharge.

The applicant has provided a letter from her psychologist explaining that her gender dysphoria since early childhood has led to problems throughout her life.  However, there is nothing in the record to connect these problems to the civilian conviction that led to her discharge.  Therefore, the record does not support a conclusion that clemency is warranted in the interest of justice.

The complete advisory is at Exhibit G. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 14 Dec 17 for comment (Exhibit H) and the applicant replied on 7 Jan 18.  In her response, she states that she is confused by the competing recommendations regarding her name change.  She has provided sufficient evidence to support her name and gender change, and all her legal documents have been changed except for her DD Form 214.  It is extremely awkward and demeaning to explain her gender dysphoria to potential employers and institutions that require her to present her DD Form 214.  

Regarding her request to upgrade her discharge, she volunteers and contributes to her community and has never been in legal trouble except for a moving violation.  She cannot afford an independent background check; however, she had to undergo a thorough background check before she was hired as a school custodian.  The applicant’s complete response, with attachments, is at Exhibit I.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed; however, it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board majority concludes the applicant has presented evidence sufficient to demonstrate an error or injustice regarding part, but not all, of her request.  In particular, the applicant has provided a court order showing she changed her name and a letter from her doctor outlining she has had appropriate clinical treatment for gender transition, which is sufficient to justify granting the applicant’s request for a name change.  However, regarding the applicant’s request for a discharge upgrade the Board agrees with AFPC/JA that there is no evidence to indicate her discharge characterization was in error.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  The Board also notes the applicant indicated that she could not afford the fee required to obtain an FBI background check.  However, she can submit a request to waive the fee by contacting the FBI at 304-625-5590.  Additional information can be found at https://www.fbi.gov/services/cjis/identity-history-summary-checks.  Therefore, the Board recommends correcting the applicant’s record only to the extent 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 that the DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with the 27 Aug 84 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.

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04928 in Executive Session on 3 May 18:

A majority of the panel voted to correct the record in part.  Mr. Cate voted not to correct the record and provided a minority opinion (Exhibit J).  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Dec 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	SAF/MR Name Change Memorandum, dated 9 Mar 15.
Exhibit D:	Post Service Clemency Letter, w/atch, dated 7 Sep 17.
Exhibit E:	Advisory Opinion, AFPC/DP2SSM, dated, 29 Nov 17.
Exhibit F:	Advisory Opinion, AFPC/DP2STM, dated, 1 Dec 17.
Exhibit G:	Advisory Opinion, AFPC/JA, dated, 7 Dec 17.
Exhibit H:	Letter, SAF/MRBC, dated, 14 Dec 17.
Exhibit I:	Applicant’s response, w/atchs, dated, 7 Jan 18.
Exhibit J:	Minority Opinion, dated 11 May 2018.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.