RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02561 

 COUNSEL: XXX

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 Year 1991B (CY91B) and Calendar Year 1992 (CY92) 
Lieutenant Colonel (Lt Col) Central Selection Boards (CSB), or 
in the alternative, if not selected, he requests SSB 
consideration for retention for the Fiscal Year 1993 (FY93) 
Selective Early Retirment Board (SERB). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

A Secretary of the Air Force Memorandum of Instruction (MOI) was 
delivered to the members of the 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 
Lt Col. Because of this language, his board was unjust. 
Further, as a result of this language he was passed over for 
promotion to Lt Col. His 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 
board erroneously required differential treatment of officers, 
based on their race and gender; therefore, he was prejudiced by 
this instruction. 

 

In support of his request, the applicant provides copies of a 
supplemental statement; a notification letter of his non-
selection for promotion; SERB notification letter; 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 met and was non-selected for promotion to Lt Col 
by the CY91B Lt Col CSB which convened on 2 December 1991. 
Addiitonally, he was considered by the SERB which convened on 
1 June 1992 and was selected for early retirement. The 
applicant retired effective 1 Febraury 1993. Based on his date 


of separation 
of 1 Janaury 1993, he was ineligible to meet the CY92 Lt Col 
CSB. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

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 that 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 1991 would not have discovered the issue. The applicant 
has failed to exercise due diligence required by law. 

 

The complete AF/JAA evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

COUNSEL'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel states that AF/JAA’s argument that the applicant did not 
exercise due diligence is misplaced. They acknowledge that 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 shortly thereafter. Therefore, the 
applicant has met his burden of due diligence. If the Board 
should find that the application is untimely, counsel requests 
that the Board hear the case in the interest of justice. 

 

The counsel’s complete response is at Exhibit F. 

 

________________________________________________________________ 

 

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 ten 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 non-
official 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 ten 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 ten months and to allow 
the processing of no case to exceed the 18-month point. The 
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 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 
ten 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-2011-02561 in Executive Session on 2 April 2012, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-02561 was considered: 

 

Exhibit A. DD Form 149, dated 1 Jul 11, w/atchs. 

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

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

Exhibit D. Letter, SAF/MRBR, dated 26 Aug 11. 

Exhibit E. Letter, Counsel, dated 26 Sep 11. 



Panel Chair