ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 October 2019 DOCKET NUMBER: AR20170006578 APPLICANT REQUESTS: an upgrade to her general discharge to honorable and name change on her DD Form 214 (Report of Separation from Active Duty) and military records from X___X___X___ to X___X___X___. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * physician letter, dated 14 January 2008 * counseling service letter dated 10 April 2007 * court approved name change, dated 11 February 2011 * physician letter, dated 1 February 2016 * psychological services letter, dated 11 February 2016 * Informed Consent for Trans Health Care (ICATH) letter, dated 26 April 2016 * U.S. Passport * social security card * driver license * gender letter change, dated 12 September 2018 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: a. She was targeted for discharge, because she is a transgender woman. She served honorably and in light of the policy change allowing transgender service members to serve openly. She request that her character of service on her DD Form 214 be upgraded to honorable, in addition to having her name on her DD Form 214 changed from X___X___X___ to X___X___X___. She relies on her military file and the attached letter from her doctor certifying that she is a transgender. b. Disclosure of her former name, in effect, shows her transgender status. This is an injustice, due to the social stigma and discrimination that transgender people face her current DD Form 214 (Certificate of Release or Discharge from Active Duty) with her prior name reveals her transgender status every time she shows the form. This injustice can be remedied effectively by issuing a correct DD Form 214 listing. 3. The applicant provides: a. A physician letter, dated 14 January 2008, stating she has met all the Benjamin Criteria in regards to her gender. b. A letter from a counseling service, dated 10 April 2007, stating she identifies as male to female transgendered individual. c. A court approved name change dated 11 February 2011, which changed her name from X___X___X___ to X___X___X___. d. A physician letter, dated 1 February 2016, which states she has identified as female and has been on feminizing hormones since 2007. e. A letter from psychological services, dated 11 February 2016, recommending that she receives Gender Reassignment Surgery (GRS). f. A letter from ICATH, dated 26 April 2016, stating she has met the criteria for surgery and it would be beneficial to her. g. A copy of her passport, social security card and driver’s license showing her name as X___X___X___. h. A gender change letter, dated 12 September 2018, stating that she has undergone the irreversible and permanent GRS. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 9 September 1976 as X___X___X___. b. On 22 March 1978, the applicant's commander notified the applicant of his intent to initiate action to discharge the applicant from the service under the provisions (UP) of Army Regulation (AR) 635-100 (Personnel Separation – Officer Personnel), chapter 5- 12a (6), (10), and (12); i.e., Acts of personal misconduct; conduct unbecoming of an officer; and acts or behavior not clearly consistent with the interests of national security. The applicant’s impersonation of a female, with the intent of appearing in public under the circumstances described in the attached statements, casts grave doubt on your ability to effectively serve as a commissioned officer in the Armed Forces. The applicant also acknowledged receipt of this notification on 22 March 1978. c. On 22 March 1978, the applicant’s commander initiated action to separate the applicant UP of AR 635-100, Chapter 5. d. On 29 March 1978, the commanding general informed the applicant of his intention to pursue a discharge UP of AR 635-100, Chapter 5. He was also offered the opportunity to tender his resignation from service UP of paragraph 5-19b (1), AR 635-100, and AR 635-120 (Officer Resignation and Discharge), Chapter 4. e. On 31 March 2019, the applicant acknowledged: * she did not consult with qualified military or civilian legal counsel * she would submit her resignation from service * she would accept her discharge and not request to appear before an Army selected board of officers to show cause for retention f. On 31 March 1978, the applicant submitted her resignation. g. Inconsistent with the chain of command recommendations of an Honorable Discharge, DA MILPER Msg 171700z, dated 17 April 1978, By Order Secretary of the Army issued an Under Honorable Conditions Discharge UP of AR 635-120, Chapter 4. h. The applicant’s DD Form 214 shows the applicant was discharged on 24 April 1978. The applicant served 1 year, 7 months and 16 days of net service during this period. 5. By regulation, separations under the provisions of Army Regulation 635-100 (Personnel Separation – Officer Personnel), in effect at the time, sets forth the basic authority for the separation of officer personnel. 6. The law has since been changed and current standards may be applied to previously separated Soldiers as a matter of equity. When appropriate, Soldiers separated for homosexuality could now have their reason for discharge and characterizations of service changed. For such an upgrade to be warranted, both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct 7. 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 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. 8. Considering the unique circumstances of transgender personnel, the Board may recommend issuing the applicant a new DD Form 214 for the period of service ending 24 April 1978 with the name shown on the certificate of change of name. No entries should be made in Block 18 of the reissued DD Form 214 listing his/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 his/her previous gender. 9. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon a change in DoD policy relating to homosexual conduct, the Board concluded that making the changes to the applicant's DD Form 214 was appropriate. In addition, based upon the potential prejudices some transgender Soldiers may face when presenting a DD214 with a different name than currently used, the Board found there were potential injustices that would provide sufficient reason to grant the requested relief. 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: 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 records of the individual concerned be corrected by reissuing the applicant a new DD Form 214 for the period ending 24 April 1978 showing in: * item 1 (Last Name, First Name, Middle Name): the name listed on the court- approved name change * item 24 (Characterization of Service): Honorable * item 25 (Separation Authority): Army Regulation 635-200, paragraph 5-3 * item 26 (Separation Code): JFF * item 27 (Reentry Code): 1 * item 28 (Narrative Reason for Separation): Secretarial Authority * item 30 (Remarks) no entries should be made of the reissued DD Form 214, either listing the applicant's previous name or indicating the DD Form 214 was administratively reissued. 1/21/2020 X CHAIRPERSON Signed by: 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. 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 635-100 (Personnel Separation – Officer Personnel), Chapter 5 provides policy and prescribes procedures to eliminate officers from the Army for substandard performance of duty and for moral or professional dereliction or in the interests of national security. 3. Under Secretary of Defense (Personnel and Readiness) memorandum, dated 20 September 2011, subject: Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides policy guidance for Service Discharge Review Boards (DRB's) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to follow when taking action on applications from former service members discharged under don’t ask don’t tell (DADT) or prior policies. The memorandum above states that, effective 20 September 2011, Service DRBs should normally grant requests, in these cases, to change the: * narrative reason for discharge to "Secretarial Authority" with a Separation Program Designator (SPD) code of JFF * characterization of the service to honorable * the reentry eligibility (RE) code to an immediately-eligible-to-reenter category 4. For the above upgrades to be warranted, the memorandum states both of the following conditions must have been met: * the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT * there were no aggravating factors in the record, such as misconduct 5. The memorandum further states that although each request must be evaluated on a case-by case basis the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. The memorandum also recognized that although BCM/NRs have a significantly broader scope of review and are authorized to provide much more comprehensive remedies than are available from the DRBs, it is Department of Defense (DOD) policy that broad, retroactive corrections of records from applicants discharged under DADT [or prior policies] are not warranted. Although DADT is repealed effective 20 September 2011, it was the law and reflected the view of Congress during the period it was the law. Similarly, DOD regulations implementing various aspects of DADT [or prior policies] were valid regulations during that same or prior period. Thus, the issuance of a discharge under DADT [or prior policies] should not by itself be considered to constitute an error or injustice that would invalidate an otherwise properly-taken discharge action. 6. 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 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). e. Considering the unique circumstances of transgender personnel, it would be appropriate to issue the applicant a new DD Form 214 for the period ending 1 October 1973 with the name shown on his/her court order. No entries should be made in Block 18 of the reissued DD Form 214 listing his/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 his/her previous gender. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//