RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 JUNE 2005
      DOCKET NUMBER:  AR20040007890


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |Member               |
|     |Ms. Linda Simmons                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement or
separation.

2.  The applicant states that he went into the Army with good health and
had a mental breakdown while in the Army, and was discharged for that
reason.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation)
and a copy of a 30 December 2002 letter from a mental health center manager
to the Sixteenth Judicial District Court in New Iberia, Louisiana.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 December 1974.  The application submitted in this case
is dated 17 September 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for 3 years on 31 October 1974 and
was assigned to Fort Polk, Louisiana for training.

4.  On 3 December 1974 the applicant’s commanding officer informed the
applicant that he was initiating action to discharge him from the Army
because of his negative attitude and lack of discipline.  He informed him
that he had been counseled by himself and his drill sergeant and also had
attended the confidence builder’s course; and that those efforts had
produced no improvement on his part.  He advised the applicant that he had
clearly demonstrated that he could not meet the standards required to
become a Soldier.

5.  The applicant acknowledged receipt of the notification from his
commanding officer, and stated that he did not desire to have a counsel to
assist him, and did not desire to make a statement or rebuttal in his own
behalf.  He also stated that he did not desire to have a separation medical
examination if the discharge was approved.
6.  On 5 December 1974 the separation authority approved the
recommendation. The applicant was discharged on 10 December 1974.  He had 1
month and 10 days of service.  The authority cited for his discharge is an
August 1973 Department of the Army message.

7.  The letter that the applicant submits with his request shows that the
applicant was a patient at a mental health facility and had been getting
intermittent mental health care since at least 1980, and was thought to be
disabled and unable to work because of his emotional condition; and that
there were indications that he was disabled because of chronic dermatitis
and cervical myalgia secondary to chronic back problems that appeared to be
congenital in nature.

8.  Army Regulation 635-200, chapter 5, then in effect, provided, at that
time, for the administrative separation of individuals who had demonstrated
during the first 180 days of training that they lacked the necessary
motivation, discipline, ability or aptitude to become effective Soldiers.
This program, known as the Trainee Discharge Program, mandated the award of
an honorable discharge.

9.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

10.  Army Regulation 40-501, then in effect, provides that for an
individual to be found unfit by reason of physical disability, he must be
unable to perform the duties of his office, grade, rank or rating.

11.  Army Regulation 635-40, then in effect, provides that when a member is
being separated by reason other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring immediately prior to or coincident with
separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged because he lacked the necessary
motivation, discipline, ability, or aptitude to become an effective
Soldier, apparently as authorized by the above-cited Department of the Army
message, the provisions of which became regulatory.

2.  The applicant's continued performance of duty raised a presumption of
fitness which he has not overcome by evidence of any unfitting, acute,
grave illness or injury concomitant with his separation.

3.  The letter he submits with his request only shows that he had a medical
condition dating from 1980, 6 years after his discharge.  There is no
evidence and the applicant has not provided any, to show that he was
physically unfit at the time of his discharge in December 1974.

4.  The applicant was properly discharged in December 1974 for the reasons
cited.  He is not entitled to physical disability retirement or separation.
 Consequently, his request to change his record to reflect physical
disability retirement or separation is not warranted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 December 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     9 December 1977.  However, the applicant did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___HF __  ___LS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _______John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007890                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050614                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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