RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-02591 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be considered for promotion to the grade of Colonel 
by a Special Selection Board (SSB) for the Fiscal Years 1996A 
(FY96A), FY97A, and FY98A Reserve Line and Nonline Colonel 
Central Selection Boards (CSBs). 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In a 5-page brief from his counsel, the applicant contends the 
following: 

 

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

 

A Secretary of the Air Force Memorandum of Instruction (MOI) was 
delivered to the members of each selection board he met. The MOE 
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 
colonel. Because of this language, his board was unjust. 
Further, as a result of the language he was passed over for 
promotion to the grade of colonel. Counsel refers to the 
decision of Berkley v. United States that the special 
instructions to the selection boards erroneously required 
differential treatment of officers, based on their race and 
gender, and the applicant was prejudiced by this instruction. 

 

He only learned in 2012 that the Air Force had used impermissible 
language at this promotion board. He has heard through his 
brother that another Air Force pilot was promoted by a SSB. 

 

It is well settled by this Board that the language in the MOI was 
unconstitutional and prejudiced him in his non-selection for 
promotion to colonel. 

 

Should the Board find that the filing is untimely; the Board 
should excuse any untimely filing in the interest of justice. 
The Board has excused untimely fillings in a number of cases of 
similarly situated applicants. 

 

In support of his request, the applicant provides a personal 
statement, his counsel’s brief, copies of his Promotion 


Recommendation Forms (PRFs), and his DD Form 214, Certificate of 
Release or Discharge from Active Duty. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was considered, but not selected for promotion to 
the grade of colonel by the A0696A, A0697A and A0698A Colonel 
Line Central Selection Boards. On 31 Jul 89, the applicant was 
released from active duty by reason of voluntary resignation – 
completion of active duty service commitment. 

 

On 27 Mar 13, a copy of a Record of Proceedings (ROP) which was 
provided to the Board, was forwarded to the applicant’s counsel 
for review and comment within 30 days. To date, a response has 
not been received by this office (Exhibit E). 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

ARPC/CV recommends approval for SSB consideration for the FY96A, 
FY97A, FY98A Reserve Colonel Selection Boards, stating the MOI 
for each of these boards was determined by the Department of 
Justice to be unconstitutional. 

 

The complete CV evaluation, with attachment, is at Exhibit B. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

On 7 Aug 12, a copy of the Air Force evaluation was forwarded to 
the applicant for review and comment within 30 days. To date, a 
response has not been received (Exhibit C). 

 

_________________________________________________________________ 

 

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, Air 
Force Board for Correction of Military Records, 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. However, the Air Force settled the Berkley case 11 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 11 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 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 the 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 Docket Number 
BC-2012-02591 in Executive Session on 3 May 13, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 11 Jun 12, w/atchs. 

 Exhibit B. Letter, ARPC/CV, dated 17 Jul 12. 

 Exhibit C. Letter, SAF/MRBR, dated 7 Aug 12. 

 Exhibit D. Letter, SAF/MRBC, dated 27 Mar 13, w/atch. 

 

 

 

 

 Panel Chair