RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02581 COUNSEL: XXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His records be considered for promotion by a Special Selection Board (SSB) for the Calendar Years 1990 and 1991 (CY90 & CY91) Lieutenant Colonel Central Selection Boards. ________________________________________________________________ APPLICANT CONTENDS THAT: He should receive SSB consideration for promotion. The CY90 and CY91 Central Selection Boards were given formal instructions which introduced subjective consideration of race and gender in violation of his equal protection rights. A decision by the U.S. Court of Appeals for the Federal Circuit that the Secretary of the Air Force’s Memorandum of Instruction (MOI) concerning consideration of minority and female officers, required differential treatment of officers based on their race and gender. In view of this, and since these instructions were used during the CY90 and CY91 boards, as a white male officer, he should receive SSB consideration for promotion. Through counsel the applicant cites a U.S. Court of Appeals for the Federal Circuit case that questioned the constitutionality of Equal Employment Opportunity (EEO) language used by selection boards. In support of his request, the applicant provides his personal statement, his counsel’s brief, a letter from ABG/DPMPP advising of selective continuation option, DD Form 214, Certificate of Release or Discharge from Active Duty, DD Form 215,Correction to DD Form 214, Certificate of Release or Discharge from Active Duty Service (corrected to include the applicant’s middle name). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was promoted to the grade of Major on 1 April 1986. He was considered and not selected for promotion by the CY90 and CY91 Central Selection Boards. He was honorably retired in the grade of Major on 31 March 1995. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO recommends denial. DPSOO states the applicant through counsel, contends the instructions given to the Central Selection Boards were deemed to be unconstitutional and gave unfair advantage to women and minorities (Berkley, et al. v.United States, United States Court of Appeals for the Federal Circuit, Docket No. 01-5057). The MOI provided to the boards convened between January 1990 and June 1998 did contain the same EEO clause and may have harmed officers meeting these boards. Therefore, the applicant’s request does fall under the Berkley decision. DPSOO recommends the application be denied as untimely. The errors claimed by the applicant occurred during promotion boards conducted in 1994 and 1996. The applicant obviously had no theory for claiming relief until it was provided for him by another Air Force officer. Nevertheless, the law is clear that ignorance of the factual or legal basis of a claim is no bar to application of a limitations period. DPSOO strongly recommends the Board find that it would not be in the interest of justice to excuse the delay, and deny the application as untimely. The fact that previous cases may have been approved should not be used as precedence for any future cases. The complete DPSOO evaluation is at Exhibit C. AF/JAA recommends denial. AF/JAA states, in part, though the applicant’s case otherwise falls within the ambit of Berkley, they recommend the application be denied as untimely. AFI 36- 2603, Air Force Board for Correction of Military Records, paragraph 3.5, implements the three-year limitations period established by 10 U.S.C. 1552(b) and further specifies that it runs not just from discovery of the error or injustice, but from the time at which, with due diligence, it should have been discovered. An application filed later is untimely and may be denied by the Board for that reason. Although the Board may excuse an untimely filing in the interest of justice, the burden is on the applicant to establish why it would serve the interest of justice to excuse the late application. AF/JAA opines that the applicant has not met his burden of showing why an injustice will occur if he is not granted relief. If the Board excuses the lack of timeliness and determines that there has in fact, been an error or injustice in this case, the Board may grant applicant’s request that his records be considered by an SSB. The complete AF/JAA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states that AF/JAA’s argument that the applicant did not exercise due diligence is misplaced. In response to AFPC/DPSOO observation that the applicant “obviously had no theory for claiming relief until it was provided for him by another Air Force officer,” counsel states, the applicant has clearly stated that he had no knowledge of the matter until he was apprised of the issue by that officer in early 2011 and filed his request for correction only months later. The applicant has met his burden of due diligence. If the Board should find that the application is untimely, counsel requests that the Board hear the case in the interest of justice. Counsel’s complete response is at Exhibit F. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: 1. After careful consideration of applicant’s request and the evidence of record, we find the application untimely filed. The applicant did not file within three years after the alleged error or injustice was discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36- 2603, nor has he shown a sufficient reason for the delay in filing. The applicant contends he only recently learned of the irregularities with the MOI used by promotion boards and that it would be unreasonable to expect him to be aware of the problems with the Equal Employment Opportunity (EEO) language contained in the MOI before it was found to be unconstitutional. However, the Air Force settled the Berkley case 10 years ago and the applicant has not demonstrated the error was not discoverable, or that after his exertion of reasonable due diligence, it could not have been discovered in a reasonable time. In this respect, we note that during the settlement in the Berkley class-action litigation, the Air Force went to great lengths to implement a widely publicized campaign to attempt to notify affected individuals of their opportunity to join the class-action suit. Moreover, given the magnitude of the settlement agreement and its far-reaching, resultant impact on such a large cadre of officers, it was widely publicized through a number of nonofficial websites on the internet. In view of this, we find it unreasonable to believe that despite extraordinary measures to advise affected members, that he would be unaware of the opportunity to join the class-action suit or the subsequent settlement agreement until some 10 years later. At a minimum, there has been no showing that, through due diligence, he would not have become aware of these actions years earlier. Although this Board has, in the past, gone to great lengths to provide relief to those members affected by the improper MOI but not part of the Berkley class, recent Congressional mandates have limited the Board’s latitude - including the Board’s mandate to process 90 percent of its cases within 10 months and to allow the processing of no case to exceed the 18-month point. The time it takes to process an application is no longer an infinite resource. See United States v. Keane, 852 F.2d 199, 205 (7th Cir. 1988)(“We live in a world of scarcity, one in which that most inflexible commodity, time itself, sets a limit on our ability to prevent and correct mistakes.”) 2. We are also not persuaded the record raises issues of an error or an injustice which require resolution on the merits. While the improper MOI may have been a material error in the promotion selection process, we cannot determine the applicant’s promotion nonselections were in error, since we cannot determine that he would have been a selectee but for the use of the improper MOI. As this Board has noted on a number of occasions, officers compete for promotion under the whole person concept. Many factors are carefully assessed by selection boards and an officer may be qualified for promotion. However, in the judgment of a selection board vested with the discretionary authority to make the selections, a minimally qualified officer may not be the best qualified of those available for the limited number of promotion vacancies, nor do we believe the circumstances of this appeal at this late date make the applicant a victim of an injustice. In the past 10 years since Berkley, correcting a member’s records has become increasingly more difficult due to the passage of time. It has become nearly impossible to provide an appropriate remedy since many members are provided supplemental promotion consideration and are selected for promotion in a somewhat more liberal process where promotion quotas are not applicable. As a result, many are retroactively promoted several years earlier and provided numerous years of constructive service for time they never served, to include periods when thousands deployed in support of military operations in Afghanistan and Iraq. Further, upon retroactive promotion, the majority of these officers re- petition the Board seeking direct promotion to at least the next higher grade, if not additional grades, requesting years of constructive service created as a result of their delay in seeking relief. We find that such action creates a greater injustice and an undue windfall in light of the many officers who actually served during these wartime years. Therefore, in the absence of evidence that the applicant would have been a selectee had an appropriate MOI been employed during his selection board, we do not find a sufficient basis to waive the failure to timely file and consider the case on its merits. This determination is made only after lengthy deliberation and exhaustive consideration of all of the issues involved, and our experience dealing with these cases for over a decade. We ultimately find that any alleged injustice cannot be effectively remedied through the correction of records process at this extremely late date. Thus, it would not be in the interest of justice to excuse applicant’s failure to file in a timely manner. 3. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. ________________________________________________________________ The following members of the Board considered this application BC-2011-02581 in Executive Session on 21 February 2012, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 02 July 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. AFPC/DPSOO Letter, dated 14 September 2011. Exhibit D. HQ USAF/JAA Letter, dated 2 November 2011. Exhibit E. Letter, SAF/MRBR, dated 19 November 2011. Exhibit F. Letter, Counsel, dated 14 December 2011. Panel Chair