RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02995 COUNSEL: NONE XXXXXXXXXX HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. Her records be corrected to reflect her gender as female instead of male. 2. Her records be corrected to reflect her name change. APPLICANT CONTENDS THAT: She underwent male to female sexual reassignment surgery on 21 May 2013. In a letter dated 15 July 2013, AFPC/DPSIRP recommended that her request be closed, incorrectly stating that this was a duplicate action because her name change had been accomplished on 10 April 2013, via AF Form 281, Notification of Change in Service Member’s Official Records. However, her requests also included that her records be corrected to reflect her gender as female instead of male, which was not accomplished. In support of her requests, the applicant provides a personal statement, copies of Order for Change of Name and Birth Record, Medical Certification and various other documents associated with her requests. Her complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 22 May 2001 and was medically retired on 9 November 2005. She served 4 years, 5 months, and 18 days of total active military service. An order of the County District Court dated 4 October 2012, ordered the applicant’s name and birth record be changed and that copies of this order may be furnished to any agencies to make such change upon the applicant’s record with those agencies. AF Form 281, Notification of Change in Service Member’s Official Records, indicates a name change was completed under the provisions of AFI 36-2608, Military Personnel Records System, and a court order granting the change of name. A copy was also provided to the Defense Accounting and Finance Service (DFAS). On 10 April 2013 and 15 July 2013, AFPC/DPSIRP advised the applicant that her name change was updated in the Military Personnel Data System and a copy of the AF Form 281 was forwarded to the DFAS to update their system. She was also advised they were unable to update her DD Form 214 since she retired prior to her name change. On 24 March 2015, a copy of the SAF/MR memorandum, dated 9 March 2015, was forwarded to the applicant in order to comply with 10 U.S.C. §1556. Specifically, the memorandum notes that the DD Form 214 is a document primarily created for the benefit of the veteran to establish entitlement to various government programs or in seeking employment with organizations that grant a veterans' preference. The correction should be to the DD Form 214 and for the limited purposes of mitigating an injustice caused by use of the DD Form 214. If there are extreme circumstances that support corrections to other Air Force records, it was recommended that the panel clearly determine what specific records that must be corrected to eliminate the determined error or injustice. (For example, a blanket correction to “any and all” records without a specific understanding of the records being corrected could be interpreted as an arbitrary action, and therefore should not be done.) The AFBCMR should require proof that the applicant's name was legally changed. A signed and authenticated court order should be required. Further, the correction should be to the DD Form 214 and for the limited purposes of mitigating an injustice caused by use of the DD Form 214. (Exhibits F and G) THE AIR FORCE EVALUATION: AFPC/DPSIRP recommends denial. Based on the fact that no statutory guidance exists that allows for gender changes, DPSIRP is unable to amend the applicant’s military record. The complete DPSIRP evaluation is at Exhibit C. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The OPR recommends denial of her request because “no statutory guidance exists that allows for gender changes.” However, this is poor justification for a denial. The precedence for changing gender in one's military records was set decades ago. While certainly not a common request, military record gender changes have been performed by all branches of the military as a matter of routine. To address the growing need for information on accomplishing this process, the Transgender American Veterans Association, www.tavausa.org provides clear instructions in the frequently asked questions section of their website for members interested in changing their gender. These are the instructions that she and veterans before her have followed. These instructions are not random and put forth in the hope that such a change request will be honored; they are the result of previous members going through the appropriate channels to find the correct way to make such a change. A former Navy service member has recently been in the news for making such changes public. Although she was a member of the Navy, her request to change DoD documents goes beyond Naval jurisdiction, and her change request has been allowed by the Pentagon. The recommendation to deny her request due to a lack of statute specific to gender change is simply absurd. First, if there is no such statute, one could say there is no explicit guidance that gender changes should be denied just as correctly as saying there is no explicit guidance that gender changes should be allowed. Second, suggesting that there needs to be an explicit statue in place for every conceivable change a member could need to make to their records is ridiculous. Finally, there is a statute in place for amending one's military records – that is by submitting the DD Form 149, Application for Correction of Military Record, which is the process she followed. For these reasons, she believes her request to change her gender on her military records be allowed. In further support of her request the applicant provides a copy of her amended birth certificate as further evidence of her correct legal standing as a female. Every legal document - from her federally issued passport, to her state issued driver's license, reflects her correct name and gender (female). It is bizarre that the only legally incorrect records remaining are her DoD military records, especially considering the relative ease with which her acquaintances made these changes to their military records. She implores that the Board considers her as a person with rights and feelings rather than just as another case, consider her as a service member who served honorably, rather than make a careless decision based on a poor recommendation justified by a non- existent statute. Her complete response, with attachment, is at Exhibit E. 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 to warrant changing the applicant’s gender. We note the SAF/MR memorandum dated 9 March 2015, states that corrections to the DD Form 214 should be for the limited purposes of mitigating an injustice caused by use of the DD Form 214. While the applicant’s comments in response to the Air Force advisory opinion are duly noted, given that her DD Form 214 makes no reference to her gender, we find no evidence of an error or injustice in this case. Therefore, we conclude the applicant has failed to sustain her burden of proof that she has been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting this portion of the applicant’s request. 4. Notwithstanding the above, 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 AF Form 281 coupled with the certified court order sufficient proof that her name was legally changed. Accordingly, we recommend the applicant’s record be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with her 9 November 2005 separation, be declared void and a new DD Form 214 be issued to reflect the applicant’s name in Block 1. The following members of the Board considered AFBCMR Docket Number BC-2013-02995 in Executive Session on 23 April 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR Docket Number BC-2013-02995: Exhibit A. DD Form 149, dated 27 August 2013, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSIRP, dated 19 September 2013. Exhibit D. Letter, SAF/MRBR, dated 29 October 2013. Exhibit E. Letter, Applicant, 2 November 2013, w/atch. Exhibit F. Letter, SAF/MR, dated 9 March 2015 Exhibit G. Letter, SAF/MRBR, dated 24 March 2015. 1 2