RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  BC-2014-01935
	
	                           COUNSEL:  
	                           
	                           HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be considered for promotion to the grade of 
Lieutenant Colonel (Lt Col) by a Special Selection Board (SSB) 
for the Calendar Years 92B (CY91B), P0592B In-the-Promotion Zone 
(IPZ) and CY93A, P0593A Above-the-Promotion Zone (APZ) Lt Col 
Central Selection Boards (CSBs).

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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 boards to unconstitutionally consider race and 
gender when selecting officers for promotion to the grade of Lt 
Col.  Because of this language, his boards were unjust.  
Further, as a result of this language he was passed over for 
promotion to the grade of Lt Col.  Additionally, it is 
unreasonable to expect him to be aware of the issues with the 
language in the MOI before it was found to be unconstitutional. 
Being that he only recently learned it was used by the promotion 
boards.  Counsel refers to the decision of the U.S. Court of 
Appeals for the Federal Circuit in 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. 

In support of his request, the applicant provides his counsel’s 
brief, a copy of AF Form 709, Promotion Recommendation, for 
Board 0593A and his DD Form 214, Certificate of Release or 
Discharge from Active Duty.

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

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STATEMENT OF FACTS:

On 1 Apr 88, the applicant was promoted to the grade of major.  
He was considered and not selected for promotion to the grade of 
Lt Col by the CY92B and CY93A CSBs.  On 1 Sep 94, he retired in 
the grade of major and credited with 17 years, 11 months, and 1 
day of total active service. 

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AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial.  DPSOO states the applicant 
contends the CSBs’ 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 the boards convened 
between January 1990 and June 1998 contained the same EEO clause 
and may have harmed officers meeting these boards.  Therefore, 
the applicant’s request does fall under the Berkley decision.

DPSOO recommends the application be denied as untimely.  The 
errors claimed by the applicant occurred during promotion boards 
conducted in 1992 and 1993.  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 limitation period.  DPSOO strongly recommends 
the Board find that it would not be in the interest of justice 
to excuse the delay, and deny the application as untimely.  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.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 27 Oct 14 for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit D).

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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 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.  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 the Board's 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 AFBCMR Docket 
Number BC-2014-01935 in Executive Session on 10 Jun 15, under 
the provisions of AFI 36-2603:

	                   , Panel Chair
	                        , Member
	                  , Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-01935 was considered:

	Exhibit A.  DD Form 149, dated 5 May 14, w/atchs.
	Exhibit B.  Applicant's Available Master Personnel Records
	Exhibit C.  Letter, AFPC/DPSOO, dated 16 Jun 14.
	Exhibit D.  Letter, SAF/MRBR, dated 27 Oct 14.