RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02350 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be reconsidered for promotion to the grade of major by 
Special Selection Board (SSB) for the Calendar Year 1995A 
(CY95A) and CY96A Major Line 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. This instruction contributed to his non-
selection for promotion to the grade of major. 

 

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. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s DD Form 214 reflects he served in the Regular 
Air Force from 30 May 84 through 30 Nov 96. He was 
progressively promoted to the grade of captain, with an 
effective date and Date of Rank (DOR) of 30 May 88. He entered 
the Air Force Reserve and was promoted to major on 1 Oct 97. 

 

The applicant was considered and nonselected for promotion to 
major by the CY95A and CY96A Major Line Central Selection Boards 
(CSB) which convened on 5 Jun 95 and 4 Mar 96, respectively. 


The applicant was offered selective continuation on active duty 
but declined. 

 

________________________________________________________________ 

THE AIR FORCE EVALUATION: 

 

AFPC/DPSOO recommends denial, stating, in part, 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. The fact that previous cases may have been approved 
should not be used as precedence for any future cases. 

 

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 1995 and 1996. 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 realm 
of Berkley, the application should 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. 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. 

 

The applicant has not met his burden of showing his claim should 
not be barred for lack of timeliness. He separated in 1996 
after being twice passed over for promotion to major. He has 
filed a request for records correction 15 years after the 1996 
board, asserting that he only learned about the Berkley decision 


in late 2010 when a former Air Force officer informed him of the 
issue. If in fact, the applicant only learned of this issue in 
late 2010, due diligence on his part would have revealed the 
existence of the problem long ago. In order to excuse a delay, 
the applicant must show the error was not discoverable, or that 
even after due diligence, it could not have been discovered. 
The applicant must show why an injustice will occur if he is not 
granted relief. The EO board instruction cases were highly 
publicized in the 1990s and early 2000s making it implausible 
that any officer non-selected for promotion would have not have 
taken the initiative to inquire, if only out of curiosity about 
the MOI involving their selection board. The information he 
needed to make his claim was readily and publicly available 
years ago. 

 

While the AFBCMR has found Berkley cases, similar to the 
applicant’s case, as untimely filed but has exercised its 
discretion to grant relief in the interest of justice, justice 
is not served by granting the applicant relief in his case 
because of the extraordinary length of time that has passed. At 
some point in time, granting review of these untimely filed Berkley cases is tenuous at best and would result in an 
unwarranted windfall to individuals who simply do nothing to 
pursue a claim for years past the statutory limitation period. 

 

The complete AF/JAA evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

JAA argues the applicant did not exert due diligence in 
discovering the error but he has done nothing wrong in this 
case. 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. v. Berkley, 287 F.3d 1076 (Fed. Cir 
2002) overcomes the harm done by the Air Force. The Board 
granted several cases filed in 2007 and later. Recently the 
Board granted relief in BC-2011-01859, a similar case filed in 
2011. The time delay in the applicant’s case is not so great so 
as to warrant depriving him of a similar remedy. 

 

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

 

Counsel’s complete response is at Exhibit E. 

 

________________________________________________________________ 

 


FINDINGS AND CONCLUSIONS OF THE BOARD: 

 

1. After careful consideration of 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 
nonselections 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 


 

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. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

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-2011-02350 in Executive Session on 22 Mar 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 8 Jun 11, atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOO, dated 5 Dec 11. 

 Exhibit D. Letter, USAF/JAA, dated 16 Dec 11. 

 Exhibit E. Letter, SAF/MRBR, dated 23 Dec 11. 

 Exhibit F. Letter, Counsel, dated 13 Jan 12, w/atch. 

 

 

 

 

 

 Panel Chair