IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013141 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013141 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by reissuing a DD Form 214 for the period 30 April 1970 through 15 February 1972 (as corrected by a DD Form 215, issued on 19 October 1999) with the name in item 1 (Name) as that which appears in the Supreme Court of the State of New York, County of Seneca, Waterloo, New York, Name Change Order Index Number 48650, granted on 20 October 2014. No entries should be made in the Remarks block of the reissued DD Form 214 listing the previous name or indicating that the DD Form 214 was administratively reissued. _____________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. IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150013141 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, in effect, correction of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to conform to a court-ordered name change. 2. The applicant states the former name on the DD Form 214 discloses transgender status and prevents her from applying for service credit for government employment. She states the request is supported by a Name Change Order issued by the Supreme Court of the State of New York. 3. The applicant provides copies of a: * Petition for a Name Change and Name Change Order * Publication of Notice of Name Change * Department of Veterans Affairs (VA) letter * Certificate of Birth 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 Contract – Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) on 2 April 1970. Item 5 (Last Name – First Name – Middle Name) shows "M___, xxxx xxxx." 3. A DD Form 4 shows the applicant enlisted in the Regular Army (RA) on 30 April 1970. Item 5 shows "M___, xxxx xxxx." 4. A DD Form 214 shows the applicant entered active duty this period on 30 April 1970, was honorably released from active duty on 15 February 1972, and transferred to the New York Army National Guard (ARNG). Item 1 (Last Name – First Name – Middle Name) shows "M___, xxxx xxxx." 5. A DD Form 215 (Correction to DD Form 214), issued on 19 October 1999, shows in item 1 (Name – Last, First, Middle): "M___, xxxx xxxx." 6. A DD Form 4 shows the applicant enlisted in the ARNG of the United States and New York ARNG on 8 April 1972. Item 5 shows "M___, xxxx xxxx." 7. An NGB Form 22 (Report of Separation and Record of Service) shows the applicant enlisted on 8 April 1972, was honorably separated on 7 April 1974, and transferred to the USAR Control Group (Reinforcement). Item 1 (Name – Last, First, Middle Initial) shows "M___, xxxx x." 8. Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, Letter Orders Number 03-1059118, dated 25 March 1976, honorably discharged the applicant ("M___, xxxx x") from the USAR effective 1 April 1976. 9. In support of the request the applicant provides the following documents. a. Supreme Court of the State of New York, Petition for a Name Change and Supreme Court of the State of New York, County of Seneca, Waterloo, New York, Name Change Order, Index Number 48650, that show, on 20 October 2014, the applicant's petition to change her name from "xxxx xxxx M___" to "xxxx xxxx M___" was granted. It also shows the applicant was ordered to publish a notice in the Fingerlakes Times newspaper within 60 days. b. A statement by J__ L. S___, Sr., publisher of Reveille/Between the Lakes, certified, on 6 November 2014, that a legal notice of the applicant's name change that was ordered by the Supreme Court, County of Seneca, was published in the weekly newspaper. c. Canandaigua VA Medical Center, Canandaigua, NY, letter, dated 7 May 2015, that shows X__ C___, Medical Doctor, Board Certified Psychiatrist, certified that the applicant has been diagnosed with Gender Dysphoric disorder and depression. d. New York State, Department of Health, Vital Records Section, Certificate of Birth, issued on 26 May 2015, that shows, in pertinent part – * Name: "xxxx xxxx M____" (applicant) * Sex: Female REFERENCES: Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, released from active duty, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. a. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. It instructs for item 1, enter last name, first name, and full middle name or names, if any. b. On direction of the ABCMR or in other instances when appropriate, the Deputy Assistant Secretary of the Army, Army Review Boards Agency, is authorized to issue or reissue a DD Form 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 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, there are unique circumstances for transgender individuals. Those circumstances are such that they may prevent or delay receipt of benefits for which these individuals must provide a DD Form 214 as proof of military service. 2. Considering the unique circumstances of transgender personnel, in this case, the evidence would support a recommendation to issue the applicant a new DD Form 214. 3. She may request correction of her NGB Form 22 through the Adjutant General of the State that issued the form, should she desire to do so. //NOTHING FOLLOWS//