PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:                10 February 2000
	DOCKET NUMBER:        AR1999034625

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

	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of her requests for award of the Combat Infantryman Badge and an updated DD Form 214 (Certificate of Release or Discharge from Active Duty).  Her request for reconsideration was submitted on a DD Form 149 (Application for Correction of Military Records), dated 9 November 1999, which was forwarded by a 10 December 1999 letter from a Member of Congress.  In a letter attached to her application, she also requested a personal appearance before the Board if her requests are not granted.

3.  The applicant states (as summarized by the analyst) that she has provided the necessary documents for award of a Combat Infantryman Badge.  She contends that she met “all listed requirements to be awarded this badge.”  The applicant states that she held the military occupational specialty (MOS) of “Infantryman” and served in Operation Just Cause as an infantryman “in combat duty in an active combat zone.”  She further contends:  “The regulation don’t state I had to come under or return enemy fire.  Why you would mistate this is beyond me.”

4.  The applicant also states (as summarized by the analyst) that she wants an updated DD Form 214 because of the loss of benefits she is experiencing because people question her DD Form 214 which describes her as a male while her driver’s license describes her as a female.  She contends that based on her “gender correction” that she and her records should be treated as “female”.  In conclusion, she states:  “I hope you will show your humanity and at minimum correct the of the DD214 and the decorative discharge certificate.  If not please process my complaint against you for sex discrimination.”  

5.  The applicant submitted several documents in support of her claim for the Combat Infantryman Badge:  1) A 15 June 1999 letter from the applicant listing “evidence submitted”;  2) An excerpt (pages 414 and 415) from the Army Officer’s Guide concerning award of the Combat Infantryman Badge;  3) A copy of Joint Task Force South organization showing the 4th Battalion, 6th Infantry as one of the units;  4) A 10 June 1999 letter from the applicant’s sister;  5) An 18 June 1999 letter from a friend;  6) Copies of two DD Forms 214, one with an effective date of 27 June 1978 and the other with a separation date of 27 April 1990; and  7) A copy of the 16 September 1998 Board’s Memorandum of Consideration in the applicant’s previous case. 

6.  The applicant also provided several documents in support of her request for an updated DD Form 214:  1) A copy of the 16 September 1998 Board’s Memorandum of Consideration in the applicant’s previous case;  2) A 28 June 1999 letter from the Army Review Boards Agency (ARBA) Support Division-St. Louis to a Member of Congress;  3)  A copy of a 14 July 1999 letter from the applicant to the Chief of the ARBA Support Division-St. Louis;  4) 14 pages of Department of Veterans Affairs (DVA) medical notes and evaluations;  5) a two-page Notice of Disagreement, dated 8 November 1999, submitted by the applicant to the DVA alleging sex discrimination;  6) A copy of a letter, notarized on 5 April 1998, verifying the applicant’s “sex reassignment surgery [male to female]” which was completed on 20 January 1998;  7) A copy of a 15 June 1998 court order (Superior Court of Washington in and for Thurston County) directing amendment of the applicant’s birth records to recognize “a change of sex from Male to Female”;  8) A copy of a 25 October 1999 letter from the U.S. Department of Health and Human Services (Office for Civil Rights) administratively closing her complaints of sex discrimination against the DVA Medical Centers in Portland and Seattle for lack of jurisdiction;  9) A copy of a DD Form 149 (Application for Correction of Military Record), dated 12 June 1999; 10) A copy of a DD Form 149, dated 18 August 1997,  11) A copy of the applicant’s State of Washington Drivers License;  12) A 17 April 1997 District Court of Thurston County court order changing the applicant’s name;  13) A telefax of a 14 July 1999 letter from the applicant to the Chief of the ARBA Support Division-St. Louis (a duplicate of the document identified as “3”, above; and a 1 July 1999 telefax of the documents identified in paragraph 5, above, in support of the applicant’s request for award of the Combat Infantryman Badge.

7.  All documents submitted by the applicant were provided to the Board.  

8.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 16 September 1998 (COPY ATTACHED).

9.  The applicant’s military records show that the applicant entered active duty as a male on 23 November 1976, completed training as an infantryman in military occupational specialty (MOS) 11B, and served overseas in an infantry battalion in Germany.  The applicant was honorably discharged on 27 April 1978.

10.  The applicant reentered active duty on 13 July 1989 as a male and was awarded MOS 19D (cavalry scout).  The applicant was honorably discharged by reason of hardship on 27 April 1990.

11.  There is no evidence of record which shows that the applicant served in Panama during Operation Just Cause or was awarded the Combat Infantryman Badge.  The applicant provided a copy of Figure 5-1 from an unidentified historical record which lists the 4th Battalion of the 6th Infantry (the applicant’s unit of assignment) on the Joint Task Force South Table of Organization.

12.  The applicant provided a 10 June 1999 notarized statement from her sister which states that the applicant joined the Army in 1989 and was assigned to Fort Polk, Louisiana.  The sister further states she was “asked to verify” the applicant’s unit of assignment and the unit’s participation in Operation Just Cause.  The sister states that the applicant was assigned to “HHC 4th BN 6th Infantry 5th Infantry Div, Fort Polk, La.” [Headquarters and Headquarters Company, 4th Battalion, 6th Infantry of the 5th Infantry Division].  The applicant’s sister also states this unit was “actively participating in Operation Just Cause, when [the applicant] was assigned to the unit at Fort Polk.  [The applicant] was sent down as a replacement to a soldier who had been hurt.  [The applicant] served with his unit in the operation for 30 days and came back to Fort Polk when the unit completed its duty in Panama.”  The applicant provided an 18 June 1999 statement from a person who identified herself as a friend of the applicant since 1987.  This person states that she is “writing in regards to the necessary testimony to verify that [the applicant] served in Operation Just Cause in 89-90.”  She also states: “I’m aware that [the applicant] was a combat MOS and served with the 4/6 Inf, 5th Div Inf assigned to Fort Polk, LA., and [the applicant’s] unit was assigned a combat role in Operation Just Cause, in Panama.” 

13.  In support of the request for award of the Combat Infantryman Badge, the applicant submitted a copy of pages 414 and 415 from an unidentified version of the Army Officer’s Guide.  This cite provides a general description of the requirements for award of the Combat Infantryman Badge:  “Awarded to infantry personnel in the grade of colonel or below who, subsequent to 6 December 1941, satisfactorily perform duty while assigned or attached as a member of an infantry brigade, regiment or smaller unit during any period such unit is engaged in active ground combat.  Members of attached Ranger companies are also eligible as well as officers of branches who command similar size infantry units under similar circumstance for thirty consecutive days.  These badges are authorized for otherwise qualified Army members for service in Vietnam subsequent to 1 March 1961, in Laos from 19 April 1961 to 6 October 1962, and in Korea subsequent to 4 January 1969.”   

14.  In support of the request for an “updated” DD Form 214, the applicant has provided a 17 April 1997 District Court Decision that the changed the applicant’s former male name to her current female name and a notarized statement attesting to “sex reassignment surgery [male to female]” performed on the applicant on 20 January 1998.  She also provided a 15 June 1998 Superior Court Decision which changed her birth records to show a change of sex from “Male to Female.”  

15.  The applicant provided DVA medical documents showing 8 evaluations covering the period 26 May 1998 through 2 February 1999.  The evaluation on 2 February 1999 shows that DVA officials determined the applicant “is fee based in the community and can only receive emergent care at this facility.”  A medical doctor also determined that the applicant’s condition would not be treated as an “emergent need”.  There is no evidence that the applicant was denied care because her DD Forms 214 showed her former male name.

16.  Army Regulation 600-8-22 governs military awards.  Paragraph 8-6 provides for award of the Combat Infantryman Badge (CIB), and paragraph 8-6j specifies that for Panama (Operation Just Cause from 20 December 1989 to 31 January 1990) individuals must have met the criteria in paragraphs 8-6b and c to be awarded the CIB.  These paragraphs state that there are basically three requirements for award of the CIB.  The soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.  Specific eligibility requirements are stated in paragraph 8-6c (1) through (4) and essentially require that an Army enlisted soldier must be have an infantry or special forces specialty, must have satisfactorily performed duty while assigned or attached as a member of an infantry, ranger or special forces unit of brigade, regimental, or smaller size during any period such unit was engaged in active ground combat.  Finally, paragraph 8-6c(2) states:  “A recipient must be personally present and under hostile fire while serving in an assigned infantry or special forces primary duty, in a unit actively engaged in ground combat with the enemy.”

17.  Army Regulation 635-5 establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part it states that a DD Form 214 will not be reissued unless directed by proper appellate authority, unless it is determined that required corrections will not fit within the space on a single DD Form 215 (Correction to DD Form 214), unless two DD Forms 215 have already been issued and another correction is required or unless the character of service is changed.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) governs the operations of this Board.  Paragraph 10 of this regulation describes consideration of applications and empowers the Board to make a determination in all cases whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing.  The regulation further states that the Board will make this determination in all cases except those in which the application has been denied administratively for the reason the applicant has not exhausted all other effective remedy, that effective relief cannot be granted, or for the reason the applicant did not file the application within 3 years after discovery of the error or injustice and did not submit reason why the Board should excuse the failure to timely file.

CONCLUSIONS:

1.  There is no evidence, and the applicant has provided no evidence, which shows that the applicant was awarded the Combat Infantryman Badge at the time of Operation Just Cause.  During the period of Operation Just Cause in Panama, evidence of record shows the applicant was serving in the military occupational specialty (MOS) of a cavalry scout (19D), not in an infantry MOS.  

2.  Evidence of record shows that the applicant’s unit of assignment at Fort Polk, Louisiana, was the 4th Battalion of the 6th Infantry and that this unit was listed on the Joint Task Force South Table of Organization.  However, there is no evidence that this battalion engaged in active ground combat, that the applicant actively participated in such ground combat, or that the applicant was “personally present and under hostile fire” as required for award of the Combat Infantryman Badge under the specific regulatory provisions governing award of the Combat Infantryman Badge during Operation Just Cause. 

3.  The Board noted the statements submitted by a relative and a friend in support of the applicant’s request for award of the Combat Infantryman Badge.  However, these statements were made over 9 years after the conclusion of Operation Just Cause and do not provide any evidence which shows that the applicant’s unit engaged in active ground combat, that the applicant actively participated in such ground combat, or that the applicant was “personally present and under hostile fire.”  Therefore, these statements by themselves are not sufficient as a basis for award of the Combat Infantryman Badge.

4.  The Board also noted the applicant’s contention that she was improperly denied the Combat Infantryman Badge by the Board on 16 September 1998 because:  “The regulation don’t state I had to come under or return enemy fire.”  The Board also notes that the applicant based her claim for award of the Combat Infantryman Badge on the language contained in the Army Officer’s Guide.  It should be noted that Army Regulation 600-8-22 (Military Awards), paragraphs 
8-6j and 8-6b and c, govern award of the Combat Infantryman Badge for the period of Operation Just Cause, not the Army Officer’s Guide.

5.  Based on the foregoing, this Board has determined that the previous decision of the Board on 16 September 1998 to deny award of the Combat Infantryman Badge to the applicant was correct at that time and that there is no basis for award of the Combat Infantryman Badge to the applicant at this time.

6.  The Board notes that the applicant changed her former male name to her current female name, underwent “sex reassignment surgery [male to female]”, and obtained a court order to change her birth records to show a change of sex from “Male to Female” well after her separation from the Service.  Therefore, her current discharge documents are correct as currently constituted and, as a result, there is no basis for changing them.

7.  The Board noted the applicant’s contention that she was denied medical care by the DVA because her discharge documents show her sex as male while her drivers license shows her sex as female.  Contrary to her contention, DVA medical records submitted by the applicant show that she was denied treatment at one particular facility for a specific condition on 2 February 1999 because she “is fee based in the community and can only receive emergent care at this facility.”  Eligibility for DVA medical treatment is properly a decision by that Federal agency, not the Army Board for Correction of Military Records.  Also, this Board does not amend discharge documents solely for the purpose of obtaining veterans’ benefits.  Therefore, there is no basis for changing the gender on her discharge documents.

8.  The Board recognizes, in this case, the difficulties associated with official documents showing different genders and different names.  As a result, the Board has determined as a matter of compassion that the applicant should be issued a Transcript of Military Record (DA Form 1569) in her current female name, as legally changed by the District Court of Thurston County Order in case number 44394 which is dated 17 April 1997, showing her honorable service from 23 November 1976 through 27 April 1978 and her honorable service from 13 July 1989 to 27 April 1990.

9.  The Board considered the applicant’s request for a hearing before the Board.  The Board has determined that review of the records in this case is sufficient to resolve the issues raised by the applicant and that a personal appearance by her before the Board is not warranted.

10.  In view of the foregoing findings and conclusions, it would be appropriate to grant the relief outlined in paragraph 8, above, but only as recommended below.

RECOMMENDATION:

1.  That a Transcript of Military Record (DA Form 1569) be issued in the name of showing her honorable service from 23 November 1976 through 27 April 1978 and her honorable service from 13 July 1989 to 27 April 1990.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

VBC____  JPS_____  KLW____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Van B. Cunningham_____
		        CHAIRPERSON

INDEX

CASE ID	ARAR1999034625	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19900427	
DISCHARGE AUTHORITY	AR 635-200, CHAP 6	
DISCHARGE REASON	HARDSHIP	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	100.0100.000	
2.	100.0000.000	
3.		
4.		
5.		
6.