BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011569 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011569 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the DD Form 214 for the period ending 23 September 2004 with the name in block 1 entered as the name shown on the applicant’s court order. No entries should be made in block 18 of the reissued DD Form 214 listing her previous name or indicating that the DD Form 214 was administratively reissued. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting her record to show she entered the service on 30 March 1998. ____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150011569 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: a. she entered the service on 30 March 1998 instead of 21 April 1998; and b. her name as "S______ E________ E______" instead of "S____ M______ E______." 2. The applicant states: a. During an excessively long in-processing period at the Fort Jackson, South Carolina Reception Battalion, she forgot the actual date of her enlistment. The Drill Sergeant told her that if she did not remember the date of her enlistment just put "today's date" and correct her record later. She has a Certificate of Enlistment that was signed on 30 March 1998 which is the day she took her oath of enlistment. She recently realized the error. b. She is now female and has legally changed her name. 3. The applicant provides: * U. S. Army Certificate of Enlistment, dated 30 March 1998 * State of New Hampshire Certificate of Name Change * Letter from a physician reporting that the applicant had surgery for gender transition to female * Letter from a psychiatrist reporting the applicant had appropriate clinical treatment for gender transition to female CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. A DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted in the U. S. Army Reserve (USAR) under the Delayed Entry/Enlistment Program (DEP) on 27 March 1998 for a period of eight years. 3. The DD Form 4 further shows she was discharged from the DEP and enlisted in the Regular Army (RA) on 21 April 1998 for a period of four years. She reenlisted on 3 May 2002. 4. A DD Form 214 shows the applicant was honorably discharged on 23 September 2004 as a private first class/E-3 having completed 6 years, 5 months, and 3 days of active duty service. Item 1 (Name) shows "E______, S____ M______." Item 12a (Date Entered Active Duty this Period) shows the entry 21 April 1998. 5. The applicant provides: a. A U. S. Army Certificate of Enlistment, dated 30 March 1998, showing she enlisted for service in the U.S. Army. b. State of New Hampshire, Hillsborough County Probate Court Certificate of Name Change showing her name was changed from "S____ M______ E______" to "S_____ E________ E______" on 12 May 2008. c. Letters from a physician and a psychiatrist attesting to her gender transition to female. REFERENCES: Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214. It states: a. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. b. For block 1, compare with the original enlistment contract or appointment order and review the official record for possible name changes. If a name change has occurred, list other names of record in block 18 (Remarks). c. For block 18, in part, when a DD Form 214 is administratively issued or reissued, enter "DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON (date)." However, do not make this entry if the appellate authority; Executive Order; or Headquarters, Department of the Army, directs otherwise. d. On direction of the ABCMR or Army Discharge Review Board, or in other instances when appropriate, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)), Army Review Boards Agency (ARBA), is authorized to issue or reissue DD Forms 214. Once a DD Form 214 has been issued, it will not be reissued except under specified circumstances including when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214). DISCUSSION: 1. The applicant enlisted in the USAR DEP on 27 March 1998. She was discharged from the DEP and enlisted in the RA on 21 April 1998. The date of her entry on active duty is properly recorded on her DD Form 214. The Certificate of Enlistment she provided is not evidence of an error in the dates shown on her DD Form 4. 2. The evidence of record shows upon enlistment in the RA, the applicant's name was listed as "S____ M______ E______," as is shown on the applicant's DD Form 214. 3. In the past the ABCMR has denied similar applications on the basis that the DD Form 214 is a historical document that should reflect the record as it existed at the time the DD Form 214 was created. The underlying reasoning has been that a post-service name change does not retroactively create an error on the DD Form 214. This is still true; however, the unique circumstances of transgender individuals may prevent or delay receipt of benefits for which these individuals must provide a DD Form 214 as proof of military service. 4. Considering the unique circumstances of transgender personnel, it would be appropriate to issue the applicant a new DD Form 214 for the period ending 23 September 2004 with the name shown on her court order. No entries should be made in block 18 of the reissued DD Form 214 listing her previous name or indicating that the DD Form 214 was administratively reissued. Doing so would undermine the purpose of granting relief by drawing attention to her previous gender. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011569 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011569 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2