RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01859 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be granted Special Selection Board (SSB) consideration by the 
Calendar Year 1994 (CY94A) and Calendar Year 1996 (CY96C) 
Lieutenant Colonel Line Central Selection Boards. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The applicant, through counsel, contends the selection process 
used by both of his promotion boards was unconstitutional. The 
two selections boards were given a Memorandum of Instruction 
(MOI) which unconstitutionally discriminated against him by 
favoring the records of minority and female officers. The MOI 
contained equal opportunity (EO) language that instructed the 
board to unconstitutionally consider race and gender when 
selecting officers for promotion to lieutenant colonel. This 
instruction contributed to his non-selection for promotion to the 
grade of lieutenant colonel and ultimately led to his involuntary 
separation (for being twice non-selected for promotion to 
lieutenant colonel). 

 

He should receive SSB consideration for promotion based on the 
decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v. United States. 

 

In 2010, he was told by a fellow former Air Force pilot there 
were irregularities with the promotion board processing during 
the 1990s. Prior to this, he had no knowledge of any problems 
with his boards. 

 

In support of his request, the applicant provides a counsel’s 
brief, copies of his nonselection memorandums, continuation 
agreement, his DD Form 214, Certificate of Release or Discharge 
from Active Duty, and a personal statement. 

 

The applicant's complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

 


STATEMENT OF FACTS: 

 

The applicant was considered and not selected for promotion to 
the grade of lieutenant colonel by the CY94A and CY96C Lieutenant 
Colonel Line Central Selection Boards which convened on 11 Oct 
94 and 8 Jul 96, respectively. On 31 Aug 99, the applicant was 
released from active duty and honorably retired on 1 Sep 99. 

 

The applicant’s case falls within the ambit of Berkley v. United 
States. This case specifically scrutinized the language used in 
Air Force selection boards, including the boards that non-
selected the applicant for promotion. The Air Force has 
consistently maintained, in litigation and public comment, that 
the challenged language is not a constitutionally objectionable 
classification and creates no benefits or burdens for competitors 
in the board processes. Nevertheless, in a split decision, the 
court in Berkley concluded that because “the MOI requires 
differential treatment of officers based on their race or gender, 
it must be evaluated under a strict scrutiny analysis. In order 
to determine whether there has been an equal protection violation 
under the strict scrutiny standard, further inquiry is required 
to ascertain whether the racial classification serves a 
compelling government interest and whether it is narrowly 
tailored to the achievement of that goal.” The government 
declined to appeal this part of the decision; thus the Air Force 
is bound by the court’s conclusion. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATIONS: 

 

HQ AFPC/DPSOO recommends the application be denied as untimely. 
DPSOO states the fact that previous cases may have been approved 
should not be used as precedence for any future cases. 

 

DPSOO states the MOI provided to Central Selection Boards that 
convened between Jan 90 and Jun 98 did 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. 

 

DPSOO states 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. 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 complete DPSOO evaluation is at Exhibit C. 

 

HQ USAF/JAA recommends the application be denied as untimely. 
JAA states 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 interests of justice to excuse 
the late application. 

 

JAA states in their opinion, the applicant has not met his burden 
of showing why an injustice will occur if he is not granted 
relief. It is clear from his application he did not complain by 
Aug 02 (three years after his separation) of language that had 
existed since 1990. Clearly, the issue about which the applicant 
complains (the language of the MOI) was discoverable at the time 
it occurred (in 1994 and 1996), as well as any subsequent point 
in time. The applicant’s assertion it would be unreasonable to 
expect him to be aware of problems with the EEO language before 
the language was found to be unconstitutional begs the question 
of why due diligence as far back as 1994 would not have 
discovered the issue. 

 

In essence, the applicant asserts that language already 
judicially attacked by others prior to any judicial determination 
of unconstitutionality was not discoverable in the applicant’s 
case until 2002. Assuming, that the 2002 cases “started the 
clock running” for purposes of his awareness, the applicant has 
failed to demonstrate why his claim should not be barred by his 
waiting an additional nine years to “discover” the problem with 
the 1994 and 1996 EEO language. The applicant’s bare assertion 
the Air Force never notified him—which, of course, was never a 
requirement—does not support a waiver of the time period 
established by statute for relief. 

 

The complete JAA evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: 

 

The applicant served his country faithfully and was wronged when 
unconstitutional instructions were given to his promotion board. 
The only question is whether or not the applicant’s filing nine 
years after the final decision in Berkley overcomes the harm done 
to him by the Air Force. As the Board is aware, several cases 
filed in 2007 and later were heard by this Board and relief was 
granted. 

 

JAA’s argument the applicant did not exercise due diligence is 
misplaced. The applicant retired in 1999, and had no reason to 
question the constitutionality of his promotion boards unless he 
hears something about the issue. While the Berkley decision did 
generate some publicity in personnel and legal worlds it clearly 
did not cross over into the rest of the Air Force population, 
much less retired personnel. Further, the Berkley did not relate 
to promotion, so even if the applicant had heard about it, it is 


doubtful he would have assumed that the Air Force made the same 
error with his promotion board. 

 

The Counsel’s complete response is at Exhibit F. 

 

_________________________________________________________________ 

 

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 CY94A and CY96C Lieutenant Colonel 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 board erroneously required 
differential treatment of officers based on their race and gender. 
We note that the offices of primary responsibility have 
recommended the applicant’s request be denied as untimely; 
however, we believe based on the merits, it is in the interest of 
justice to waive timeliness in this case. 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. 

 

_________________________________________________________________ 

 

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 
lieutenant colonel by a Special Selection Board (SSB) for the 
Calendar Year 1994A and 1996C Lieutenant Colonel Line Central 
Selection Boards. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket Number 
BC-2011-01859 in Executive Session on 28 Nov 11, under the 
provisions of AFI 36-2603: 

 

, Panel Chair 

, Member 

, Member 

 


All members voted to correct the records, as recommended. The 
following documentary evidence pertaining to Docket Number 
BC-2011-01859 was considered: 

 

 Exhibit A. DD Form 149, dated 9 May 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, HQ AFPC/DPSOO, dated 30 Jun 11. 

 Exhibit D. Letter, HQ USAF/JAA, dated 23 Aug 11. 

 Exhibit E. Letter, SAF/MRBR, dated 26 Aug 11. 

 Exhibit F. Letter, Applicant’s Counsel, dated 26 Sep 11. 

 

 

 

 

 

 Panel Chair