RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05852
		COUNSEL:  NONE
		HEARING DESIRED: YES

	 

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APPLICANT REQUESTS THAT:

His records be considered for promotion to the grade of major by 
a Special Selection Board (SSB) for the Calendar Year 1993B and 
1994A Major Line Central Selection Boards. 

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APPLICANT CONTENDS THAT:

He should receive SSB consideration for promotion.  A Secretary 
of the Air Force Memorandum of Instruction (MOI) was delivered 
to the members of each 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 
major.  Because of this language, his boards were unjust.  
Further, as a result of this language he was passed over for 
promotion to major.  In addition, his Fifth Amendment rights 
under the U.S. Constitution were violated, which prevented the 
promotion board from considering him fairly for promotion to 
major and is contrary to law.

In support of his request, the applicant provides a copy his 
DD Form 214, Certificate of Release or Discharge from Active 
Duty, and copies of the United States Court of Appeals for the 
Federal Circuit 01-5057 documents.

His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant was involuntarily separated from the Regular Air 
Force on 30 Jun 94 in the grade of captain after serving 
12 years, 8 months, and 7 days on active duty.





The remaining relevant facts pertaining to this application, 
extracted from the applicant’s master personnel records, are 
described in the letter prepared by the appropriate offices of 
the Air Force, which is at Exhibit C and D. 

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AIR FORCE EVALUATION:

AFPC/DPSOO strongly recommends denying the applicant’s request 
as untimely stating that it would not be in the interest of 
justice to excuse the delay.  The applicant met and was non-
selected for promotion to major by the CY92C and CY93B Major 
Line Central Selection Boards that convened on 7 Dec 92 and 6 
Dec 93, respectively.  He asserts the 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 
Memorandum of Instructions provided to the Central Selection 
Boards that convened between Jan 90 and Jun 98 contained the 
same equal opportunity (EO) clause and may have harmed officers 
meeting these boards.  Consequently, the applicant’s request 
does fall under the Berkley decision.  It is noted the error 
occurred during promotion boards conducted in 1992 and 1993.  
Additionally, 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.

1. AFPC/JA concurs with the AFPC/DPSOO recommendation that this 
application be denied as untimely.  The applicant filed his 
application some 18-19 years after he was non-selected by 
promotion to the grade of major, contending that he discovered 
this error on 8 Dec 12, yet he offers no explanation as to how 
or why he picked that date.  They submit that he probably picked 
that date as the time when he provided the theory and “evidence” 
(a 2002 federal court decision) that he offers now.  

2. JA notes that according to the OpJAGAF 2005/33 opinion, “In 
our opinion, the fact that the Berkley case was not decided 
until 2002 does not mitigate the applicant’s late filing and 
complaint about Memorandum of Instructions (MOI) language that 
existed since 1994.  In order to excuse a delay, the applicant 
should have to show that the error was not discoverable, or that 
after due diligence, it could not have been discovered.  
Clearly, the issue about which the applicant complains (the 
language of the MOI) was as discoverable at the time it occurred 
in 1994, as it was in May 2005 [or, in our case, 2012].  What is 
readily apparent is the applicant failed to exercise due 
diligence that the law requires and relied instead on the action 
of others to provide a basis and theory for recovery long after 
a reasonable period for pursuing a claim had passed.  
Accordingly, the applicant application may be denied as 
untimely.”

3. Similarly, the courts have consistently held that ignorance 
of the factual or legal basis of a claim is no bar to 
application of a limitation period.  Therefore, absent any 
explanation whatsoever as to why the applicant waited so long to 
file his application or why the AFBCMR should find it in the 
interest of justice to waive the three-year filing requirement, 
this application should be denied.

The complete JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

1. He respectfully disagrees with the advisory opinions that 
recommend denying his request based solely on “timeliness” of 
the application.  The date of discovery of this injustice was on 
8 Dec 12, after having a conversation with another former Air 
Force officer who was similarly impacted by the MOIs.  

2. He had no reason to believe that he was treated unfairly or 
unjustly during the promotion board processing and had never 
heard of the Berkley case until Dec 12.  How was he expected to 
know about the Berkley case?  He is certainly not hiding 
anything.  The Air Force had his information and could have 
easily found him.  Logically, what advantage would he derive by 
waiting this long to apply for correction to his military 
records?  

3. He disagrees that he did not exercise due diligence.  Even if 
he had surmised unfair and unjust treatment, and requested a 
copy of all applicable rules or instructions to his promotion 
boards, he is not convinced that after that review he would have 
found them to be unconstitutional and have prejudicial 
implications.  He does not have a legal background and does not 
believe he was qualified to make such judgments; after all, it 
took many professional lawyers and two courts to decide these 
particular points.

The applicant’s complete submission is at Exhibit F.

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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 over 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 or more 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.  
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 
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 11 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.

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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.

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The following members of the Board considered this application 
BC-2011-01943 in Executive Session on 8 Oct 13, under the 
provisions of AFI 36-2603:

		, Panel Chair
      , Member
		, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Dec 12, w/atchs.
    Exhibit C.  Letter, AFPC/DPSOO, dated 30 Jan 13.
    Exhibit D.  Letter, AFPC/JA, dated 19 Feb 13.
    Exhibit E.  Letter, SAF/MRBR, dated 24 Feb 13.
    Exhibit F.  Letter, Applicant, dated 11 Mar 13.




                                   
                                   Panel Chair