RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01909 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be reconsidered for promotion to the grade of lieutenant 
colonel by Special Selection Board (SSB) for the Calendar Year 
1992B (CY92B) and CY93A Lieutenant Colonel Central Selection 
Boards (CSBs). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The selection boards that he was considered by were given a 
Memorandum of Instruction (MOI) which unconstitutionally 
discriminated against him by favoring the records of minority 
and female officers. He implies that this instruction 
contributed to his non-selection for promotion to the grade of 
lieutenant colonel and ultimately led to his early retirement. 

 

In support of his appeal, the applicant submits a personal 
statement; a brief through counsel, and a copy of his 
DD Form 214, Certificate of Release or Discharge from Active 
Duty, issued in conjunction with his 30 Sep 93 retirement. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant served in the Regular Air Force from 1 Jun 77 
through 30 Sep 93. He was progressively promoted to the grade 
of major, with an effective date and Date of Rank (DOR) of 
1 May 88. 

 

The applicant was considered and nonselected for promotion to 
lieutenant colonel by the CY92B Lieutenant Colonel CSB which 
convened on 16 Nov 92. Based on a voluntary Date of Separation 
(DOS) of 30 Sep 93, he was ineligible to meet the CY93A 
Lieutenant Colonel CSB which convened on 12 Oct 93. 

 

________________________________________________________________ 

 


THE AIR FORCE EVALUATION: 

 

AFPC/DPSOO recommends denial, stating, in part, that they 
strongly recommend the Board find that it would not be in the 
interest of justice to excuse the delay, and deny the 
application as untimely. They note the fact that previous cases 
may have been approved should not be used as precedence for any 
future cases. 

 

In addition, they note that the applicant contends the promotion 
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 MOI provided to Central Selection Boards 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. 

 

The errors claimed by the applicant occurred during promotion 
boards conducted in 1992. 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. The alleged ignorance of the existence 
of a claim is not enough to toll a statute of limitations. Nor 
is the fact that a claimant previously had no counsel, or an 
articulable theory provided by some counsel to support an 
alleged claim. 

 

The complete AFPC/DPSOO evaluation is at Exhibit C. 

 

AF/JAA recommends the applicant’s request be denied as untimely. 
Although the applicant's case otherwise falls within the ambit 
of Berkley, they recommend that his application be denied as 
untimely. AFI 36-2603, Air Force Board for Correction of 
Military Records, 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. As the limitations period 
did not run during the applicant's active duty time, it could 
not have started running until after he separated in October 
1993. 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. 

 

In order to excuse a delay, the applicant must show that the 
error was not discoverable, or that even after due diligence, it 
could not have been discovered. Against this backdrop, the 


applicant merely asserts that he was never notified by the Air 
Force about the Berkley decision or the unconstitutionality of 
the Equal Opportunity language used in the promotion board that 
purportedly impacted him. He asserts that he only learned about 
the Berkley decision in late 2010 when a colleague informed him 
of the issue. 

 

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 that he did not complain by Oct 96 (three years 
after his separation). Clearly, the issue about which the 
applicant complains (the language of the MOI) was discoverable 
at the time it occurred, as well as any subsequent point in 
time. The applicant's assertion that 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 1992 would not have 
discovered the issue. 

 

In essence, the applicant asserts that language already under 
judicial attack by others prior to any judicial determination of 
unconstitutionality was not discoverable in the applicant's case 
until the 2002 determination of unconstitutionality in Saunders. 
Even if one were to assume, arguendo, 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 eight years to "discover" 
the problem with the 1992 EEO language. His bare assertion that 
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, as he failed to exercise the 
due diligence required by law. 

 

The complete AF/JAA evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

Although JAA argues that he did not exert due diligence in 
discovering the error, he 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 nine years after the final 
decision in U.S. Berkley overcomes the harm done by the Air 
Force. As the Board is aware, several cases filed in 2007 and 
later were favorably considered by the Board. The additional 
time delay in his case is not so great so as to warrant 
depriving him of a remedy. 

 

JAA’s argument that he did not exercise due diligence is 
misplaced. He was out of the Air Force. People who are no 
longer in the Air Force do not closely follow 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. He filed his 
request for correction in early 2011 and has met his burden of 
due diligence. JAA also argues that the Air Force had no duty 
to notify him and he has not asserted the position that the Air 
Force had a burden to notify him. He simply states that he did 
not hear of the problems with his promotion Board and had no 
reason to believe that there were any procedural errors with the 
Board and has met his burden of due diligence. 

 

In addition, he “obviously had no theory for claiming relief 
until it was provided for him by another Air Force officer.” If 
the Board should find that the application is untimely, he 
requests the Board hear the case as a matter of equity. 

 

The applicant’s counsel complete response 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. 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. 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 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 AFBCMR Docket 
Number BC-2011-01909 in Executive Session on 7 February 2012, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 19 May 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOO, dated 11 Jul 11. 

 Exhibit D. Letter, HQ USAF/JAA, dated 29 Jul 11. 

 Exhibit E. Letter, SAF/MRBR, dated 5 Aug 11. 

 Exhibit F. Letter, Counsel, dated 2 Sep 11. 

 

 

 

 

 Panel Chair