MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          12 September 2002
	DOCKET NUMBER:   AR2002069185

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                             records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  In effect, correction of her military records to reflect her current sex.

APPLICANT STATES:  In effect, that she has changed her sex from male to female and now desires her military records to coincide with this change.  She states that a correction of her gender in the Defense Enrollment Eligibility Reporting System (DEERS) to show her current sex would allow her to receive TRICARE benefits.  In support of her application, she submits the following documents: letter of support, medical information pertaining to her gender change, court degree granting a gender change, certificate of birth, and a copy of the TRICARE denial claim for gynecological examination. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 31 May 1998, the applicant was honorably released from active duty (REFRAD), for the purpose of retirement, after completing 21 years, 5 months, and 31 days of active military service.  

The Armed Forces of the United States Report of Transfer or Discharge 
(DD Form 214), issued to and signed by the applicant on the date of separation, confirms that at the time, the applicant held the rank of master sergeant (MSG) and was serving in military occupational specialty (MOS) 63Z (Mechanical Maintenance Supervisor).  

The DD Form 214 also shows that the applicant earned the following awards while serving on active duty:  Legion of Merit; Army Commendation Medal
(7th Award); Army Achievement Medal (5th Award); Joint Meritorious Unit Award;  Army Good Conduct Medal (7th Award); Southwest Asia Service Medal with 
1 bronze service star; and the Humanitarian Service Medal.  The military records and separation document confirm that the applicant’s active duty service was performed as a male.  

The applicant provided a court decree, dated 4 September 2001, issued by the Circuit Court of the City of Colonial Heights, Virginia, which ordered a change to the applicant’s gender from male to female.  

A TRICARE claim, dated 15 June 2001, denied the applicant payment for a gynecological examination because the gender listed for the applicant on the DEERS was male.  

TRICARE Policy Manual 6010.47-M, chapter 3, provides policy and guidance for intersex surgery.  It states, in pertinent part, surgery performed to correct gender confusion (i.e. ambiguous genitalia) which has been documented to be at birth is a covered benefit.  However, those services and supplies directly and indirectly related to intersex surgery for other than ambiguous genitalia, documented to be present at birth, are excluded from cost-sharing.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes and understands the applicant’s desire to have the gender recorded in the military records changed to reflect the current gender.  However, it finds an insufficient evidentiary basis to grant the requested relief. 

2.  The applicant enlisted, served, and was honorably retired from the Army as a male, which is the gender recorded in the military records.  The fact that subsequent to service, the applicant changed genders from male to female does not provide a sufficiently mitigating basis for changing the gender recorded in the military records.  

3.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While the Board understands the applicant’s desire to have the records changed, it finds no compelling reason for compromising the integrity of the Army’s records.

4.  The Board notes the applicant’s contention that a change to gender in the DEERS would allow payment of TRICARE benefits associate with the gender change.  However, eligibility for medical treatment under TRICARE is governed by the Department of Defense (DOD).  Current TRICARE policy published by the DOD excludes payment of TRICARE benefits for services and supplies related to intersex surgery for other than ambiguous genitalia documented to be present at birth.  Therefore, this Board has no basis for granting the requested relief. 

5.  The Board wishes to advise the applicant that a copy of this decisional document, along with the application and supporting evidence provided confirming the gender change will be filed in the applicant’s Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the applicant’s current gender, the gender recorded in the military record and under which the applicant served.  This should satisfy the applicant’s desire to have the current gender documented in the OMPF. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069185	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/12	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.1100	
2.		
3.		
4.		
5.		
6.