RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2005
      DOCKET NUMBER:  AR2004106120


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 the reason for his discharge be changed to
physical disability.

2.  The applicant states that he was denied the chance to see a
psychiatrist or any other doctor.  He believes that he should have had a
physical examination prior to discharge.  When he was in the Army he always
heard voices in his head, but he thought that was normal.  He has been
diagnosed with schizophrenia and wants to sign a medical records release at
the mental hospitals in Tennessee and Arkansas.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 November 1974.   The application submitted in this case is
dated 2 March 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 limitation 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's military records show he enlisted in the Regular Army
on 29 June 1974.  He completed basic training.  On 12 October 1974, while
in advanced individual training, he received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice for being absent from
his place of duty.

4.  On 21 October 1974 his company commander advised him of initiated
discharge action for unsatisfactory performance due to poor attitude, lack
of self–discipline and lack of ability as indicated by the failure of his
MOS (military
occupational specialty) qualifying course.  Those evaluations were
supported by seven counseling statements.  The applicant was advised of his
right to submit information in his own behalf, to the assistance of counsel
and to have a physical examination.

5.  The separation authority concurred with the company commander's
recommendation, waived further rehabilitation and directed that an
honorable discharge be issued.

6.  The applicant indicated that he did not desire a medical examination.
The only medical records available reflect 17 and 20 July and 1 October
1974 sick call visits for cold symptoms.

7.  On 7 November 1974 the applicant was discharged with an honorable
characterization of service.  He had 4 months and 9 days of creditable
service.  He declined a written explanation of the basis for his
separation.

8.  Department of the Army Message 011510Z August 1973 set forth the basic
authority for separation of enlisted personnel 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
became known as the Trainee Discharge Program and mandated the award of an
honorable discharge.
 
9.  Army Regulation 635-40, paragraph 2-2b, as amended, 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.  There is no available evidence to substantiate the applicant's
assertions that he was denied medical attention, that he should have been
afforded a psychiatric evaluation, or that he was disabled by a mental
health condition at the time of the discharge.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 November 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 November 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

___LDS _  _CAK____  __JTM__  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.




                                  __     Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106120                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19741107                                |
|DISCHARGE AUTHORITY     |DA MSG 011510Z August 1973              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |





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