RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-03668 

 

 COUNSEL: YES 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be considered for promotion to the grade of major by special 
selection boards (SSB) for the Calendar Years 1993B (CY93B) and 
1994A (CY94A) Major Line Central Selection Boards (CSB). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was prejudiced and passed over for promotion to major. A 
Memoranda of Instruction (MOI) that was issued by the Secretary 
of the Air Force contained equal opportunity language, which 
instructed the CSB to unconstitutionally consider race and 
gender when selecting officers for promotion to major. 
Specifically, captains who were female and minorities were given 
special preference for promotion. As a result of his non-
selection promotion to major, he was discharged. He learned in 
July 2012, that there had been improprieties with his promotion 
boards. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate he entered 
in the Regular Air Force on 23 January 1983. 

 

The applicant was considered and not selected for promotion to 
the grade of major by the CY93B and CY94A Major Line CSBs. 

 

On 30 April 1995, he was honorably discharged with a narrative 
reason for separation of “non-selection, permanent promotion” 
and was credited with 12 years, 3 months, and 8 days of total 
active service. 

 

________________________________________________________________ 

 

 

 

AIR FORCE EVALUATION: 


 

AFPC/DPSOO strongly recommends denial of the claim because it is 
untimely. Although the applicant’s request falls under the 
purview of the Berkley decision, he did not request relief until 
conferring with 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. In 
addition, the fact that the claimant was not previously 
represented by counsel, or that counsel can provide an 
articulate theory to support an alleged claim, will bar the 
statue of limitations. 

 

A complete copy of the AFPC/DPSOO evaluation is at Exhibit C. 

 

AF/JAA recommends the application be denied as untimely and that 
the applicant has not provided any evidence to show the error 
was not discoverable. In fact, the language in the MOI existed 
and was discoverable at the time of his non-selection for 
promotion. He has failed to exercise due diligence as required 
by law and has instead relied on the actions of others to 
provide a basis and theory for recovery long after a reasonable 
period for pursuing a claim has passed. 

 

A complete copy of the AF/JAA evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 3 October 2012, for review and comment within 30 
days (Exhibit E). As of this date, this office has received no 
response. 

 

________________________________________________________________ 

 

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. 

 

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. 

________________________________________________________________ 

 

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-2012-03668 in Executive Session on 14 May 2013, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 9 August 2012, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOO, dated 12 September 2012. 

 Exhibit D. Letter, AF/JAA, dated 2 October 2012. 

 Exhibit E. Letter, Applicant, dated 3 October 2012. 

 

 

 

 

 

 Panel Chair