RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2008-02705

            COUNSEL:  GARY MYERS
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He granted Special Selection Board (SSB) consideration  for  the  CY93B  and
CY94A Major Central Selection Boards.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

He  was  the  victim  of  racial  and  gender  discrimination   or   reverse
discrimination.  The procedures  used  by  the  two  promotion  boards  that
considered him for selection to major were unconstitutional.

The use of gender and racial classifications by the  Secretary  of  the  Air
Force within the CY93B and CY94A Major Promotion Selection Board  procedures
violated his Fifth Amendment rights under the U.S.  Constitution,  and  this
procedure prevented the board  from  fairly  considering  his  promotion  to
major.  This procedure is contrary to  law  and  constitutes  error  and  an
injustice warranting promotion consideration by a special selection board.

In support of the application, the applicant submits his  Appendix,  his  DD
Form 214,  Certificate  of  Release  or  Discharge  from  Active  Duty,  his
declaration, and Memorandums of Instructions for the CY93B and  CY94A  Major
Central Selection Boards.

Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant was considered and not selected for  promotion  to  the  grade  of
major by the CY 93B and CY94A Major Central Selection Boards.

Based on his two promotion nonselections, he was honorably discharged on  30
April 1995.  He completed 12  years,  10  months,  and  29  days  of  active
service.

_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFPC/DPSOO recommends the case be denied as untimely.

DPSOO states the applicant met and was nonselected by the CY93B (6  Dec  93)
and CY94A (22 Aug 94) Major Line Central Selection Boards.   The  Memorandum
of Instructions provided to Central Selection Boards  convened  between  Jan
90 and Jun 98 did not contain the same equal  opportunity  (EO)  clause  and
may have harmed officers meeting these boards;  therefore,  the  applicant’s
request does fall under the Berkley decision.

The errors  claimed  by  the  applicant  occurred  during  promotion  boards
conducted in 1997.  DPSOO opines the applicant had no  theory  for  claiming
relief  until  it  was  provided  for  him  by  the  author  of  his  brief.
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.

The AFPC/DPSOO evaluation is at Exhibit C.

HQ AFPC/JAA  recommends  the  case  be  denied  as  untimely.   Active  duty
suspends  running  of  the  limitations  period  but  starts  running   upon
retirement or separation from active duty.  In order to excuse a  delay  for
filing after running of the 3-year limitations period,  the  applicant  must
show the error was not discoverable, or that even after  due  diligence,  it
could not have been discovered.  Although the Board may excuse  an  untimely
filing in the interest of  justice,  the  burden  is  on  the  applicant  to
establish why it would be in the  interest  of  justice  to  excuse  a  late
application.  A determination whether the applicant has met  his  burden  in
this regard must necessarily reflect all of  the  facts  and  circumstances,
i.e., there is no “bright line rule.”

The  applicant  was  involuntarily  separated  on  30  Apr  95   after   two
nonselections for promotion to major.  His request  for  correction  of  his
records was filed on 24 Jul 08, some fourteen years  after  the  1994  board
and more than 13 years after his separation.  He  claims  that  he  did  not
know about the unconstitutionality of the EO language  used  at  the  boards
which considered him until 15 Dec 70, when a similarly-situated  friend  and
former Air Force member  allegedly  told  him  about  it.   JAA  notes  this
assertion is extremely similar in substance and  form  to  explanations  for
delayed discovery in a number of other recent AFBCMR  Berkley  applications.
He appears to be asserting that nothing happened  before  15  Dec  07  which
might have triggered a “due diligence” requirement.

JAA opines the applicant has clearly not met his burden of showing that  his
claim should not be barred for lack of timeliness.  The applicant  would  or
should have had actual notice of the MOI issue  at  some  intervening  point
between his separation in 1995 and when he claims he was  first  made  aware
of the issue in Dec 07.  JAA notes the  curiously  restrictive  language  in
the application, particularly in light of  the  high  likelihood  that  this
applicant was put on sufficient notice shortly after he left active duty  as
to characterize his lack of timely follow-up as lack of due diligence.

JAA states the “brief” of the applicant’s counsel  advises  the  Kreis  case
obligates the Board to treat similar cases in a  similar  manner  unless  it
can provide a legitimate reason for failing to do so.  Two  extraordinarily-
compelling  legitimate  reasons  why  two  applicants  who  met   the   same
problematic promotion board might be treated differently are that one  filed
a timely claim and the other one did not; or, that one satisfied the  burden
of proof requirement and the other did not.

The complete JAA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Counsel notes JAA’s confirmation the  selection  board  used  language  that
required  “differential  treatment  of  officers  based  on  their  race  or
gender.” Berkley requires such language to pass a strict  scrutiny  analysis
in order  to  avoid  being  constitutionally  defective  and  concludes  the
applicant’s case falls within the ambit of Berkley.

Counsel maintains the  application  was  timely  submitted  because  it  was
within three years after the discovery of the error or  injustice;  however,
if deemed untimely, requests the AFBCMR exercise its  discretion  to  excuse
the untimely filing in the interest of justice.  In addition, the  applicant
includes a Declaration executed under penalty of perjury which  states  they
first learned of the unconstitutional EO language on or about  December  15,
2007 and his application was submitted approximately seven months later.

Counsel states the JAA  advisory  suggests  the  applicant’s  disregard  for
publicity about and [sic] legal notices from the Berkley case triggered  the
due diligence element of the statute of limitation.   These  assertions  are
premised upon mistaken facts and are unsustainable.

To  impute  actual  knowledge  to  the  applicant   based   upon   publicity
surrounding the Berkley case is fatally  flawed  for  two  reasons.   First,
contrary to the author’s assertion, the Berkley  case  did  not  involve  EO
language used in promotion boards.  Rather the Berkley  case  considered  EO
language in involuntary terminations actions  during  a  1993  Reduction  in
Force  (RIF).   It  is  unfounded  speculation  to  suggest  the   publicity
surrounding Berkley should place active duty officers on actual  notice  the
holding in a RIF case affected the legality of their being passed  over  for
promotion.  Second, the applicant’s application  and  Declaration,  executed
under penalty of perjury, each individually affirm that he did not learn  of
the problematic EO language until Dec 07.

The Berkley litigation involved a class of  Air  Force  officers  terminated
pursuant to a 1993 RIF.  The applicant was not eligible  to  be  a  part  of
that class and obviously never received notice that he could opt in  or  out
of the  Berkley  class.   The  suggestion  that  due  diligence  could  have
produced an earlier discovery of constitutional  flawed  EO  language  rests
upon mistaken facts and relies upon pure speculation.

Counsel states that other officers are receiving SSB’s for  the  same  error
and injustice.  If the Air Force  has  provided  SSB’s  for  other  officers
suffering the same error or injustice, then the applicant’s request  imposes
no more of a hardship than these other cases.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends the case be denied as  untimely.   JAA  states  their
earlier opinion incorrectly referred to Berkley as a  promotion  board  case
and the applicant was a potential member of the class  so  as  to  have  had
actual notice of the problematic MOI language.   However,  their  conclusion
the case should be denied as untimely has not changed.

Contrary to the suggestions of the applicant’s counsel, JAA’s discussion  of
timeliness does not fail because their reference to Berkley  was  in  error.
The critical issues are (1) due diligence  on  the  applicant’s  part  would
have revealed long ago the existence  of  problematic  selection  board  MOI
language; (2) the applicant has not made a showing the interests of  justice
warrant relief from the limitations bar on filing  claims  for  relief;  and
(3) while it is  a  legal  truism  that  similar  cases  should  be  treated
similarly, this applicant’s case is not  similar  to  others  in  which  the
limitations period was waived because of the extraordinary  length  of  time
that has passed.

The applicant’s counsel’s states the purpose  of  a  statute  of  limitation
defense is “to protect the Air Force from being prejudiced  by  the  passage
of time.”  Although that is one purpose, it  is  hardly  the  only  purpose.
Other purposes are to enable processing of  applications  for  relief  while
memories  are  clear,  files  intact,  and  witnesses   (where   applicable)
available.  Cutting  off  waivers  of  limitations  statutes  also  furthers
public interest in not dragging out the resolution of similar cases  arising
from a command event so the public perception is  not  “records  correction”
but “windfall.”  The applicant’s  counsel  also  states  that  “waiving  the
statute of limitation in this case will not prejudice  the  Air  Force  more
than in other cases” as if  “protection  of  the  Air  Force”  is  the  only
consideration.  It is not, but they point  out  that  dragging  out  Special
Selection Boards  as  the  result  of  accepting  ever-older  cases  becomes
increasingly problematic.  Not only is  it  an  expensive  and  logistically
difficult proposition, but expecting  board  members  in  2009  to  evaluate
records in the context of an Air Force that existed some  15  years  earlier
may create a situation that is not consistent with justice  in  the  broader
sense of the word.

The AFBCMR liberally waived the limitations period in these  cases,  but  at
some point –- no better exemplified than  by  this  case  –-  delays  become
unreasonable.  The applicant did not file his application for  relief  until
14 years after his  nonselection-related  separation.   The  information  he
needed was readily and publically  available  years  ago  had  he  made  the
inquiries any involuntarily-discharged officer can  reasonably  be  expected
to make.  His declaration’s recitation about how he  supposedly  learned  of
the problematic MOI language in 2007 is not worthy of belief solely  because
it was submitted “under penalty of perjury.”

The complete JAA evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel states the applicant had separated from the Air Force and  moved  on
with his life.  He became a pilot for a major airline and  had  little  time
or interest in an Air Force that did not promote  him.   While  these  cases
may have been a  major  news  item  for  Air  Force  lawyers  and  personnel
specialists, there was little publicity outside those circles.

JAA’s attempts to discredit the applicant’s statement are  misplaced  as  he
clearly states that prior to 15 Dec 07, he did not  know  about  the  issue.
Incidentally, unsworn declarations under penalty of  perjury  are  perfectly
acceptable in federal litigation and  are  suitable  substitutes  for  sworn
documents when a written statement is allowed.

The applicant has done nothing wrong.  He served his country faithfully  and
was wronged when unconstitutional instructions were given to  his  promotion
board.  The only question is whether or not his filing five years after  the
final decision in Berkley overcomes the harm done to him by the  Air  Force.
Several cases filed in  2007  were  heard  by  the  AFBCMR  and  relief  was
granted.  The additional time delay in the applicant’s case is not so  great
so as to warrant depriving him of a remedy.

JAA’s argument  the  applicant  did  not  exercise  due  diligence  is  also
misplaced.  People who are no  longer  in  the  Air  Force  may  not  follow
closely what is going on with the Air  Force.   The  Berkley  case  did  not
relate to promotion, so even if he had heard about it,  it  is  doubtful  he
would have automatically assumed the Air Force made the same  constitutional
error with his promotion board.  There are  only  a  finite  number  of  Air
Force members who were impacted by the unconstitutional language.   Even  if
all of them filed requests to have their records  corrected,  it  would  not
place an undue burden on the Air Force.

Counsel’s complete response is at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  error  or  injustice  to  warrant  providing  the   applicant
promotion consideration by a Special Selection Board  (SSB)  for  the  CY93B
and CY94A Major Central Selection Boards.  The applicant  contends  that  he
should receive SSB consideration for promotion based on the decision of  the
U.S. Court of Appeals for the Federal Circuit in Berkley, that  the  special
instructions to  the  selection  boards  erroneously  required  differential
treatment of officers based on their  race  and  gender.   In  view  of  the
court’s findings and since the Air Force is not appealing that decision,  we
recommend his records be corrected to the extent indicated below.

4.  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.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be considered for promotion to the grade of major  by  Special
Selection Board (SSB) for the Calendar Year 1993B and  Calendar  Year  1994A
Major Central Selection Boards.

________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2008-02705
in Executive Session on 13 November 2009, under the provisions  of  AFI  36-
2603:

      Mr. James W. Russell, III, Panel Chair
      Mr. Michael J. Novel, Member
      Mr. Anthony P. Reardon, Member

All members voted to correct the records, as recommended.  The  following
documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 8 Jul 08, w/atch.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, HQ AFPC/DPSOO, dated 10 Sep 08.
  Exhibit D.  Letter, HQ USAF/JAA, dated 15 Oct 08.
  Exhibit E.  Letter, SAF/MRBR, dated 5 Dec 08.
  Exhibit F.  Letter, Appl’s Counsel dated 5 Jan 09, w/atchs.
  Exhibit G.  Letter, Appl’s Counsel, dated 8 May 09, w/atchs.
  Exhibit H.  Letter, HQ USAF/JAA, dated 12 Aug 09, w/atch.
  Exhibit I.  Letter, AFBCMR, dated 2 Sep 09.
  Exhibit J.  Letter, Appl’s Counsel, dated 1 Oct 09.




                                   JAMES W. RUSSELL, III
                                   Panel Chair


AFBCMR BC-2008-02705



MEMORANDUM FOR THE CHIEF OF STAFF


      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT be considered for promotion to the grade of major by
a Special Selection Board (SSB) for the Calendar Year 1993B and Calendar
Year 1994A Major Central Selection Boards.



  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency

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