RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01943 

 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be considered for promotion to the grade of 
Lieutenant Colonel by a Special Selection Board (SSB) for the 
Calendar Years 91A (CY91A), CY91B, CY92B, CY93A and CY94A 
Lieutenant Colonel 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 
Lieutenant Colonel. Because of this language, his board was 
unjust. Further, as a result of this language he was passed 
over for promotion to Lieutenant Colonel. Counsel refers to the 
decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v United States that the special instructions to the 
selection boards erroneously required differential treatment of 
officers, based on their race and gender, and applicant was 
prejudiced by this instruction. 

 

In support of his request, the applicant provides his personal 
statement, his counsel’s brief, copies of AF Form 709, Promotion 
Recommendation, for Boards 0591A, 0591B, 0592B, 0593A, and 
0594A, a CY91B Major Selective Continuation Board Statement of 
Acceptance/Declination for Initial Continuation, and his DD Form 
214, Certificate of Release or Discharge from Active Duty. 

 

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 October 1986. He was considered and not selected for 


promotion to the grade of lieutenant colonel by the CY91A and 
CY91B Central Selection Boards. He was offered and accepted 
continuation in the Air Force on 6 February 1992. The applicant 
continued meeting promotion boards until he was honorably 
retired in the grade of major on 30 June 1995. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOO recommends denial. DPSOO states the applicant 
contends the Central Selection Boards’ 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 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 1991, 1992, 1993, and 1994. 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 limitation 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. Though the applicant’s case otherwise 
falls within the ambit of Berkley, AF/JAA recommends that his 
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 USC 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. 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 the applicant has not met his burden of showing 
why an injustice will occur if he is not granted relief. The 
applicant’s assertion that it would be unreasonable to expect 
him to be aware of problems with the Equal Employment 
Opportunity (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. Eeven 
assuming arguendo, the 2002 litigation case “started the clock 
running” for purposes of awareness, he 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. The applicant has failed to exercise due diligence 
required by law. Accordingly, AF/JAA recommends the applicant’s 
request be denied as untimely. 

 

The complete AF/JAA evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel states that AF/JAA’s argument the applicant did not 
exercise due diligence is misplaced. They acknowledge the 
applicant “obviously had no theory for claiming relief until it 
was provided for him by another Air Force officer.” The 
applicant has clearly stated that he had no knowledge of the 
matter until he was apprised of the issue by that officer in 
late 2010. He filed his request for correction in early 2011. 
The applicant has met his burden of due diligence. If the Board 
should find the application is untimely, counsel requests the 
Board hear the case in the interest of justice. 

 

The 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 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. 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 this application 
BC-2011-01943 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 1 May 2011, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOO, dated 12 July 2011. 

 Exhibit D. Letter, HQ USAF/JAA, dated 14 November 2011. 

 Exhibit E. Letter, SAF/MRBR, dated 18 November 2011. 

 Exhibit F. Letter, Counsel, dated 14 December 2011. 

 

 

 

 

 Panel Chair