RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02623 

 

 COUNSEL: 

 

 HEARING DESIRED: Yes 

 

 

APPLICANT REQUESTS THAT: 

 

He be granted Special Selection Board (SSB) consideration by the 
Calendar Year 1993 (CY93) and CY94 Major Line Central Selection 
Boards (CSB). 

 

___________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The selection process used by his promotion board was 
unconstitutional. The board was given a Memorandum of 
Instruction (MOI) which unconstitutionally discriminated against 
him by favoring the records of minority and female officers. 
The MOI contained equal opportunity (EO) language that 
instructed the board to unconstitutionally consider race and 
gender when selecting officers for promotion to major. This 
instruction contributed to his non-selection for promotion to 
the grade of major. 

 

He should receive SSB consideration for promotion based on the 
decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v. United States. 

 

In 2011, he was told by a fellow Air Force officer there were 
irregularities with the promotion board processing during the 
1990s. Prior to this, he had no knowledge of any problems with 
his boards. 

 

In support of his request, the applicant provides an expanded 
personal statement, and copies of his counsel’s brief; two AF 
Forms 709, Promotion Recommendation Form; a copy of his 1994 
non-selection memorandum; his DD 214, Certificate of Release or 
Discharge from Active Duty; and, his Air Force Reserve 
retirement orders. 

 

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

 

________________________________________________________________ 

 

 

 


STATEMENT OF FACTS: 

 

The applicant was considered and not selected for promotion to 
the grade of major by the CY93B and CY94A Major Line (CSB). 
On 30 Apr 1995, the applicant was involuntarily discharged for 
non-selection for promotion with an Honorable discharge. He was 
subsequently promoted to both major and lieutenant colonel as a 
member of the Air Force Reserve before retiring on 1 Sep 2010. 

 

The applicant’s case falls within the ambit of Berkley v. United 
States. The case specifically scrutinized the language used in 
Air Force selection boards, including the board that non-
selected the applicant for promotion. The Air Force has 
consistently maintained, in litigation and public comment, that 
the challenged language is not a constitutionally objectionable 
classification and creates no benefits or burdens for 
competitors in the board process. Nevertheless, in a split 
decision, the court in Berkley concluded that because “the MOI 
requires differential treatment of officers based on their race 
or gender, it must be evaluated under a strict scrutiny 
analysis. In order to determine whether there has been an equal 
protection violation under the strict scrutiny standard, further 
inquiry is required to ascertain whether the racial 
classification serves a compelling government interest and 
whether it is narrowly tailored to the achievement of that 
goal.” The government declined to appeal this part of the 
decision; thus, the Air Force is bound by the court’s 
conclusion. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATIONS: 

 

AFPC/DPSOO recommends this application be denied as untimely, 
stating that the fact that previous cases which may have been 
approved should not be used as a precedence for any future 
cases. 

 

The MOI provided to the CSBs that 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 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 limitations period. 

 

The complete AFPC/DPSOO evaluation is at Exhibit C. 

 

AF/JAA recommends the application be denied as untimely. 
Although the Board may excuse an untimely filing in the interest 
of justice, the applicant bears the burden to establish why it 


serves the interest of justice to excuse a late application. 
Regardless of whether the applicant did, in fact, only learn of 
this issue in March 2011, due diligence on his part would have 
revealed existence of the problem long ago. In order to excuse 
a delay, the applicant must show the error was not discoverable, 
or even after due diligence, it could not have been discovered. 
While the AFBCMR has found Berkley cases, similar to the 
applicant’s case, as untimely filed but has then exercised its 
discretion to grant relief in the interest of justice, justice 
is not served by granting the applicant relief in this case 
because of the extraordinary length of time that passed. 
Congress surely did not intend to give claimants an open-ended 
right to file a claim for years past the three year statutory 
timeframe. To grant applicant’s untimely request would provide 
him a potential windfall for failing to act with due diligence 
for the past 15 years; yet, affording him the same rights as 
those individuals who acted with due diligence. 

 

The complete AF/JAA evaluation is at Exhibit D. 

 

___________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Counsel argues the applicant served his country faithfully and 
was wronged when unconstitutional instructions were given to 
this promotion board. The only question is whether or not the 
applicant’s filing nine years after the final decision in Berkley (circa 2002) overcomes the harm done to him by the Air 
Force. As the Board is aware, several cases filed in 2007 and 
later were heard by this Board and relief was granted. 

 

JAA’s argument that the applicant did not exercise due diligence 
is misplaced. The applicant separated from active duty in 1995. 
People who are no longer on active duty do not follow what is 
going on with the Air Force as closely as active service 
members. Moreover, the Berkley case did not concern promotion; 
even if the applicant had heard of the case, it is doubtful he 
would have automatically assumed that the Air Force made the 
same constitutional error with his promotion board. The 
applicant has clearly stated that he did not hear about the 
issue until late 2010. He filed his request for correction in 
2011. He has met his burden of due diligence. 

 

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 is 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, 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 
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. 

 

________________________________________________________________ 

 

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-2011-02623 in Executive Session on 21 Feb 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 6 Jul 11, w/atch. 

 Exhibit B. Applicant’s Master Personnel Records 

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

 Exhibit D. Letter, AF/JAA, dated 19 Oct 11. 

 Exhibit E. Letter, Applicant’s Counsel, dated 9 Dec 11. 

 

 

 

 

 

 Panel Chair