ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 February 2019 DOCKET NUMBER: AR20160013146 APPLICANT REQUESTS: * correction of his DD Form 214 (Report of Separation from Active Duty) for period ending 9 July 1979 to reflect his legal name (first and middle name) as PXXXX * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 for period ending 9 July 1979 * Superior Court , Court Order, dated * Social Security Card * State of Record of Birth, dated 14 September 1992 * Auto Driver License, issued 20 December 2012 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He requests both the name and gender on his DD Form 214 be corrected from b. PXXXXX and from female to male. He is a transgender female-to-male person. He changed his legal name from PXXXXX to PXXXX Ja_ in 1992 as evidenced in the attached name change order, to align his name with his gender identity. b. The appearance of his old name and gender on his DD Form 214 is an injustice because it reveals his transgender status every time he shows his DD Form 214. This is an injustice due to the social stigma and discrimination transgender people face. This injustice can be remedied effectively by issuing a corrected DD Form 214 listing his current name and gender. 3. A review of the applicant’s service records show: * in connection with his enlistment, he completed and signed a DD Form 398 (Statement of Personal History); he listed his name as PXXX_ and identified himself as a female * he enlisted in the Regular Army on 10 July 1975 * His DD Form 4 (Enlistment Contract-Armed Forces of the United States) listed his name as Philomena Jo_ * he was honorably discharged on 9 July 1979 * his DD Form 214 shows in item 1 (Last Name-First Name-Middle Name), first and middle name, PXXXXXX_ 4. The applicant provides: * Superior Court , Court Order, dated , which authorized him to assume the name PXXXXXX_ * State of Record of Birth, dated shows his name as PXXXXXXX_ * Social Security Card shows his name as PXXXXXX_ * Auto Driver License, issued 20 December 2012, shows his name as PXXXXXX_ 5. Considering the unique circumstances of transgender personnel, the Board may recommend issuing the applicant a new DD Form 214, for the period ending 9 July 1979 under the name granted to him by the court. 6. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined relief was warranted. Based upon new policy regarding transgender, the Board determined that granting the applicant’s request was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence of record and independent evidence provided by the applicant are sufficient to render a decision without a personal appearance hearing. 2. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by reissuing the DD Form 214 (Report of Separation from Active Duty) for the period ending 9 July 1979 with the name in item 1 (Name) entered as the name shown on the applicant’s Superior Court of New Jersey, Court Order, dated 1 May 1992 in which he is "authorized to assume." * No entries should be made in item 18 (Remarks) of the reissued DD Form 214 listing a previous name or indicating that either DD Form 214 was administratively reissued * This recommended relief is limited to the DD Form 214 in question and does not extend to any other documents in the applicant's Army records of the individual concerned SIGNATURE: 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. a. For item 1 (Name), enter last name, first name, and full middle name or names, if any. b. For item 27 (Remarks), in part, the remarks section will be used for entries authorized by Headquarters, Department of the Army (HQDA) for which a separate item is not available on the DD Form 214 and to complete entries too long for their respective blocks. When completing a long entry, the item number being completed must precede the item 27 comment. 3. AR 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 provides, in pertinent part, that the DD Form 214 is a summary of a 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. a. For item 1 (Name), compare original enlistment contract or appointment order and review official record for possible name changes. If name change has occurred list other names of record in block 18. b. For item 18 (Remarks), 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. c. 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). 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160013146 6 1