RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02373 

 

 

 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 under 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; Nonselect letters; an 
affidavit, and a copy of his DD Form 214, Certificate of Release 
or Discharge from Active Duty, issued in conjunction with his 
30 Nov 94 retirement. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant served in the Regular Air Force from 5 Nov 
74 through 30 Nov 94. He was progressively promoted to the 
grade of major, with an effective date and Date of Rank (DOR) of 
1 Mar 80. 

 

The applicant was considered and nonselected for promotion to 
the grade of lieutenant colonel by the CY90, CY91A, CY91B, 
CY92B, and the CY93A Lieutenant Colonel CSBs. 

 

The applicant was relieved from active duty, on 30 Nov 94, with 
a reason for separation of mandatory retirement: maximum service 


or time in grade. He was credited with 20 years and 26 days of 
active duty service. 

 

________________________________________________________________ 

 

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 1990 and 1991. 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. 

 

They note, though the applicant's case otherwise falls within 
the realm 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 
Nov 94. 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. 

 

In our 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 that he did not complain by Nov 
97 (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 1990 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 we 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 nine years to "discover" the problem with 
the 1990 and 1991 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. In our opinion, the applicant 
has 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: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant on 2 Sep 11 for review and comment within 30 days. As 
of this date, no response has been received by this office 
(Exhibit E). 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 


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. 

 

________________________________________________________________ 

 

 

 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application. 

 

________________________________________________________________ 

 


The following members of the Board considered AFBCMR Docket 
Number BC-2011-02373 in Executive Session on 21 February 2012, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 14 Jun 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOO, dated 9 Aug 11. 

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

 Exhibit E. Letter, SAF/MRBR, dated 2 Sep 11. 

 

 

 

 

 Panel Chair