DOCKET NUMBER: BC-2012-00031 
COUNSEL:   
HEARING DESIRED:  YES 

                       RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
He  be  considered  for  promotion  to  the  grade  of  lieutenant 
colonel  (Lt  Col)  by  Special  Selection  Board  (SSB)  for  the 
Calendar  Year  1997C  (CY97C)  and  CY98B  Lieutenant  Colonel 
(Lt Col) 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 
Lt  Col  and  ultimately  led  to  his  retirement  in  the  grade  of 
major.   
 
In support of his appeal, the applicant submits a brief through 
counsel;  copies  of  his  DD Form 214,  Certificate  of  Release  or 
Discharge  from  Active  Duty,  issued  in  conjunction  with  his 
30 Nov 07 retirement from active duty; Promotion Recommendation 
Forms (PRFs), and an affidavit. 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The  applicant  served  in  the  Regular  Air  Force  from  18  Nov 
83 through  30  Nov  07.    He  was  progressively  promoted  to  the 
grade of major, with an effective date and Date of Rank (DOR) of 
1 Nov 95. 
 
The  applicant  was  considered  and  nonselected  for  promotion  by 
the  CY97C  and  the  CY98B  Lt  Col  Line  CSBs  which  convened  on 
21 Jun 97 and 1 Jun 98, respectively.   
 

The  applicant  was  relieved  from  active  duty  and  retired, 
effective 1 Dec 07.  He was credited with 24 years and 13 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 CSBs 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 for the CY97C Lt Col board is the only board that does 
fall under the Berkley decision. 
 
The  errors  claimed  by  the  applicant  occurred  during  promotion 
boards conducted in 1997 and 1998.  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. 
 
HQ  USAF/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.  Although the Board may 
excuse an untimely filing in the interest of justice, the burden 

 

2

is  on  the  applicant  to  establish  why  it  would  serve  the 
interests of justice to excuse the late application.   
 
In  this  case,  the  applicant  filed  his  request  for  a  special 
selection  board  on  29  Dec  11,  over  14  years  after  he  met  the 
CY97C  Lt  Col  Line  CSB.    In  his  statement  dated  29  Dec  11,  he 
pleads  ignorance  of  his  potential  claim  until  early  2011; 
however,  neither  he  nor  his  counsel  provides  explanation  as  to 
why  the  issue  was  not  discoverable  through  the  exercise  of  due 
diligence  before  2011.    The  applicant  had  the  ability  and 
resources,  with  the  exercise  of  due  diligence,  to  discover  the 
error or injustice of which he now complains.  Rather than being 
subject  to  involuntary  separation  as  a  result  of  his  non-
selection for promotion, the applicant continued to serve until 
his  retirement.    He  was  not  estranged  from  the  Air  Force 
community;  he  had  access  to  processes,  policies,  and 
developments  while  serving  as  an  active  part  of  the  Air  Force 
community  for  an  additional  ten  years  after  the  CY97C  Lt  Col 
Line  CSB.    When  balancing  the  interests  of  justice,  it  is 
notable  that  the  MOI  with  the  objectionable  clause  was  used  in 
only one of the applicant's boards-his two years below the zone 
board.  After the CY97C Lt Col Line CSB, the applicant met a one 
year below the zone board, an in the promotion zone (IPZ) board, 
and  several  above  the  promotion  zone  (APZ)  boards.    Therefore, 
the  applicant's  military  records  were  reviewed,  and  he  was 
considered  for  promotion,  numerous  times  following  his  non-
selection  at  the  CY97C  Lt  Col  Line  CSB.    MOIs  without  the  EO 
clause were provided at each of these boards, and the applicant 
was non-selected for promotion to the grade of Lt Col at each of 
these boards. 
 
The complete AF/JAA evaluation is at Exhibit D. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 
 
Through  counsel,  the  applicant  notes  that  JAA  argues  the 
applicant did not exert due diligence in discovering the error. 
It should be noted the applicant has done nothing wrong in this 
case.    He  served  his  country  faithfully  and  was  wronged  when 
unconstitutional instructions were given to his promotion board. 
The  only  question  is  whether  the  applicant’s  filing  ten  years 
after  the  final  decision  in  U.S.  Berkley,  287  F.3d  1076  (Fed. 
Cir 2002) overcomes the harm done to him by the Air Force.  The 
Board granted relief in several similar cases filed in 2007 and 
later.    The  Board  recently  granted  relief  in  BC-2011-01859,  a 
similar case filed in 2011.  The time delay in the applicant’s 
case is not so great so as to warrant depriving him of a remedy. 
Additionally,  the  applicant  remained  on  active  duty  until 
30 Nov 2007.    His  three  year  window  to  file  began  upon  his 
retirement.  Therefore, his application is less than five years 

 

3

after he left active duty.  This is well short of the time lapse 
in other cases in which this Board had granted relief.  
 
JAA also argues that the fact the applicant met other promotion 
boards  that  were  not  tainted  by  the  improper  instructions 
negates the impact of the improper board. The fact the applicant 
met  later  boards  does  not  take  away  the  taint  of  the  prior 
improper  board.    However,  he  should  have  a  fair  chance  at 
promotion  at  all  boards  regardless  of  what  occurred  in 
subsequent  promotion  boards.    Also,  they  note  that  DPSOO  has 
stated  that  the  improper  language  was  only  read  to  the  CY97C 
promotion  board.    If  that  is  the  case,  then  the  applicant 
requests a SSB for the CY97C board only.  DPSOO also recommends 
the applicant’s request be denied because it is untimely.  They 
acknowledge the applicant “obviously had no theory for claiming 
relief  until  it  was  provided  for  him  by  another  Air  Force 
officer.”  The applicant has stated that he had no knowledge of 
the matter until he was apprised of the issue by that officer.  
If  the  Board  should  find  that  the  application  is  untimely,  we 
request  that  the  Board  hear  the  case  in  the  interests  of 
justice.  
 
The applicant’s counsel complete response is at Exhibit F. 
 
________________________________________________________________ 
 
FINDINGS AND CONCLUSIONS OF THE BOARD: 
 
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 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 

 

4

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.   
 
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  the  applicant’s  failure  to  file  in  a  timely 
manner.  
 

 

5

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  AFBCMR  Docket 
Number BC-2012-00031 in Executive Session on 30 July 2012, under 
the provisions of AFI 36-2603: 
 
The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 29 Dec 11, w/atchs.  
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFPC/DPSOO, dated 31 Jan 12. 
    Exhibit D.  Letter, HQ USAF/JAA, dated 23 Feb 12. 
    Exhibit E.  Letter, SAF/MRBR, dated 24 Feb 12. 
    Exhibit F.  Letter, Counsel, dated 25 Mar 12. 
 
 
 
 
                                   Panel Chair 
 

 

6