RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02581 



 COUNSEL: XXX


 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be considered for promotion by a Special Selection 
Board (SSB) for the Calendar Years 1990 and 1991 (CY90 & CY91) 
Lieutenant Colonel Central Selection Boards. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He should receive SSB consideration for promotion. The CY90 and 
CY91 Central Selection Boards were given formal instructions 
which introduced subjective consideration of race and gender in 
violation of his equal protection rights. 

 

A decision by the U.S. Court of Appeals for the Federal Circuit 
that the Secretary of the Air Force’s Memorandum of Instruction 
(MOI) concerning consideration of minority and female officers, 
required differential treatment of officers based on their race 
and gender. In view of this, and since these instructions were 
used during the CY90 and CY91 boards, as a white male officer, 
he should receive SSB consideration for promotion. 

 

Through counsel the applicant cites a U.S. Court of Appeals for 
the Federal Circuit case that questioned the constitutionality 
of Equal Employment Opportunity (EEO) language used by selection 
boards. 

 

In support of his request, the applicant provides his personal 
statement, his counsel’s brief, a letter from ABG/DPMPP advising 
of selective continuation option, DD Form 214, Certificate of 
Release or Discharge from Active Duty, DD Form 215,Correction to 
DD Form 214, Certificate of Release or Discharge from Active 
Duty Service (corrected to include the applicant’s middle name). 

 

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 April 
1986. He was considered and not selected for promotion by the 
CY90 and CY91 Central Selection Boards. He was honorably 
retired in the grade of Major on 31 March 1995. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOO recommends denial. DPSOO states the applicant 
through counsel, contends the instructions given to the Central 
Selection Boards were deemed to be unconstitutional and 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 1994 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. 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. AF/JAA states, in part, though the 
applicant’s case otherwise falls within the ambit of Berkley, 
they recommend the 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 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 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. 

If the Board excuses the lack of timeliness and determines that 
there has in fact, been an error or injustice in this case, the 


Board may grant applicant’s request that his records be 
considered by an SSB. 

 

The complete AF/JAA evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel states that AF/JAA’s argument that the applicant did not 
exercise due diligence is misplaced. In response to AFPC/DPSOO 
observation that the applicant “obviously had no theory for 
claiming relief until it was provided for him by another Air 
Force officer,” counsel states, the applicant has clearly stated 
that he had no knowledge of the matter until he was apprised of 
the issue by that officer in early 2011 and filed his request 
for correction only months later. 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. 

 

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 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. 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 an 
error or an 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 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-2011-02581 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 02 July 2011, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. AFPC/DPSOO Letter, dated 14 September 2011. 

 Exhibit D. HQ USAF/JAA Letter, dated 2 November 2011. 

 Exhibit E. Letter, SAF/MRBR, dated 19 November 2011. 

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

 Panel Chair