RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05852 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His records be considered for promotion to the grade of major by a Special Selection Board (SSB) for the Calendar Year 1993B and 1994A Major Line Central Selection Boards. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He should receive SSB consideration for promotion. A Secretary of the Air Force Memorandum of Instruction (MOI) was delivered to the members of each selection board he met. The MOI contained equal employment opportunity (EEO) language that instructed the board to unconstitutionally consider race and gender when selecting officers for promotion to the grade of major. Because of this language, his boards were unjust. Further, as a result of this language he was passed over for promotion to major. In addition, his Fifth Amendment rights under the U.S. Constitution were violated, which prevented the promotion board from considering him fairly for promotion to major and is contrary to law. In support of his request, the applicant provides a copy his DD Form 214, Certificate of Release or Discharge from Active Duty, and copies of the United States Court of Appeals for the Federal Circuit 01-5057 documents. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant was involuntarily separated from the Regular Air Force on 30 Jun 94 in the grade of captain after serving 12 years, 8 months, and 7 days on active duty. The remaining relevant facts pertaining to this application, extracted from the applicant’s master personnel records, are described in the letter prepared by the appropriate offices of the Air Force, which is at Exhibit C and D. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSOO strongly recommends denying the applicant’s request as untimely stating that it would not be in the interest of justice to excuse the delay. The applicant met and was non- selected for promotion to major by the CY92C and CY93B Major Line Central Selection Boards that convened on 7 Dec 92 and 6 Dec 93, respectively. He asserts the board instructions contained an illegal and constitutionally impermissible instruction that 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 Memorandum of Instructions provided to the Central Selection Boards that convened between Jan 90 and Jun 98 contained the same equal opportunity (EO) clause and may have harmed officers meeting these boards. Consequently, the applicant’s request does fall under the Berkley decision. It is noted the error occurred during promotion boards conducted in 1992 and 1993. Additionally, 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. 1. AFPC/JA concurs with the AFPC/DPSOO recommendation that this application be denied as untimely. The applicant filed his application some 18-19 years after he was non-selected by promotion to the grade of major, contending that he discovered this error on 8 Dec 12, yet he offers no explanation as to how or why he picked that date. They submit that he probably picked that date as the time when he provided the theory and “evidence” (a 2002 federal court decision) that he offers now. 2. JA notes that according to the OpJAGAF 2005/33 opinion, “In our opinion, the fact that the Berkley case was not decided until 2002 does not mitigate the applicant’s late filing and complaint about Memorandum of Instructions (MOI) language that existed since 1994. In order to excuse a delay, the applicant should have to show that the error was not discoverable, or that after due diligence, it could not have been discovered. Clearly, the issue about which the applicant complains (the language of the MOI) was as discoverable at the time it occurred in 1994, as it was in May 2005 [or, in our case, 2012]. What is readily apparent is the applicant failed to exercise due diligence that the law requires and relied instead on the action of others to provide a basis and theory for recovery long after a reasonable period for pursuing a claim had passed. Accordingly, the applicant application may be denied as untimely.” 3. Similarly, the courts have consistently held that ignorance of the factual or legal basis of a claim is no bar to application of a limitation period. Therefore, absent any explanation whatsoever as to why the applicant waited so long to file his application or why the AFBCMR should find it in the interest of justice to waive the three-year filing requirement, this application should be denied. The complete JA evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. He respectfully disagrees with the advisory opinions that recommend denying his request based solely on “timeliness” of the application. The date of discovery of this injustice was on 8 Dec 12, after having a conversation with another former Air Force officer who was similarly impacted by the MOIs. 2. He had no reason to believe that he was treated unfairly or unjustly during the promotion board processing and had never heard of the Berkley case until Dec 12. How was he expected to know about the Berkley case? He is certainly not hiding anything. The Air Force had his information and could have easily found him. Logically, what advantage would he derive by waiting this long to apply for correction to his military records? 3. He disagrees that he did not exercise due diligence. Even if he had surmised unfair and unjust treatment, and requested a copy of all applicable rules or instructions to his promotion boards, he is not convinced that after that review he would have found them to be unconstitutional and have prejudicial implications. He does not have a legal background and does not believe he was qualified to make such judgments; after all, it took many professional lawyers and two courts to decide these particular points. The applicant’s complete submission is at Exhibit F. ________________________________________________________________ _ FINDINGS AND CONCLUSIONS OF THE BOARD: 1. After careful consideration of the 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 over 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 or more 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. 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 error or 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 non-selections 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 11 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-2011-01943 in Executive Session on 8 Oct 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Dec 12, w/atchs. Exhibit C. Letter, AFPC/DPSOO, dated 30 Jan 13. Exhibit D. Letter, AFPC/JA, dated 19 Feb 13. Exhibit E. Letter, SAF/MRBR, dated 24 Feb 13. Exhibit F. Letter, Applicant, dated 11 Mar 13. Panel Chair