RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040009064


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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.  The applicant requests that his records be corrected by upgrading his
discharge.

2.  The applicant states that testing in high school showed he had an
Intelligence Quotient (IQ) of 68 (mentally retarded).  He also states that
he was a conscientious objector, but did not understand what to do.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), his school records, and a
ruling by an administrative law judge, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
6 January 1972.  The application submitted in this case is dated 18 October
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 was inducted into the Army of the United States on 8
February 1971, for a period of 2 years.

4.  On 24 February 1971, a psychiatric evaluation found that the applicant
was having adjustment problems to the military life style.  However, he met
the retention standards prescribed in Army Regulation 40-501, Chapter 3,
and had no disqualifying mental or physical defects sufficient to warrant
disposition through medical channels.  It further stated that he had no
severe character or behavior disorder, and that it was believed that he
would adjust to further military service and with further rehabilitative
efforts probably will be productive.  He was able to distinguish right from
wrong and adhere to the right, and had the mental capacity to understand
and participate in board proceedings.


5.  On 2 April 1971, he accepted nonjudical punishment under the provisions
of Article 15, Uniform Code of Military Justice for being absent without
leave (AWOL) from 19 March 1971 to 1 April 1971.   His punishment was
restriction, extra duty and a forfeiture of pay.

6.  On 11 August 1971, a medical examination cleared the applicant for
separation.

7.  On 19 November 1971, his commander preferred court-martial charges
against him for being AWOL from 19 May 1971 to 9 August 1971, and from
12 August 1971 to 16 November 1971.

8.  On 9 December 1971, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that he was guilty of the charges against him,
and understood that he may encounter substantial prejudice in civilian
life, and may be ineligible for many or all benefits as a veteran under
both Federal and State laws.

9.  On 13 December 1971, the applicant’s company and intermediate
commanders recommended approval of his discharge request.

10.  On 22 December 1971, the appropriate separation authority approved his
discharge request under the provisions of Army Regulation 635-200, Chapter
10, for the good of the service.

11.  On 6 January 1972, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, with
an undesirable discharge.  His DD Form 214 indicates he had 4 months and
12 days of creditable service and 197 days of lost time.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

13.  The applicant submits an Attendance. Learning Experiences and Test
Records from Central High School which shows a Stanford Binet IQ score of
68 in 1957, and in 1965 a Stanford Binet score of 76.  His records further
indicate that he graduated in May 1970.
14.  The applicant’s DA Form 20 (Enlisted Qualification Record) indicates
he had an AFQT scored of 13, group IV, which does indicate the applicant’s
intelligence level was below average.

15.  The applicant submitted a 29 May 2003, Administrative Law Judge’s
decision that based on the 15 November 2001, application for Title II
disability benefits, he was entitled to a period of disability commencing
26 October 2001, and disability insurance benefits under section 216 (i)
and 223, of the Social Security Act, as amended.  The applicant had been
under a disability from
26 October 2001 through the date of this decision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily request separation under Army Regulation 635-
200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

4.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that he was a conscientious
objector.

5.  Even though the applicant may have had a low IQ and AFQT score his
records indicate he had no disqualifying mental or physical defects
sufficient to warrant disposition through medical channels, and had no
severe character or behavior disorder which would excuse his behavior.  He
was able to distinguish right from wrong and adhere to the right, and had
the mental capacity to understand and participate in board proceedings.
His graduation from high school, in spite of his low intelligence scores is
further evidence that the applicant was capable of successful service.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
5 January 1975.  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

__BE ___  ___KW __  ___PM __  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.




                                  ______Barbara Ellis_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009064                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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