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 applicants 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 applicants 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 applicants 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 Boards latitude - including the Boards 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 applicants 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 members 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 applicants 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
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