RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01909 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be reconsidered for promotion to the grade of lieutenant colonel by Special Selection Board (SSB) for the Calendar Year 1992B (CY92B) and CY93A Lieutenant Colonel Central Selection Boards (CSBs). ________________________________________________________________ APPLICANT CONTENDS THAT: The selection boards that he was considered by 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 lieutenant colonel and ultimately led to his early retirement. In support of his appeal, the applicant submits a personal statement; a brief through counsel, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 30 Sep 93 retirement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force from 1 Jun 77 through 30 Sep 93. He was progressively promoted to the grade of major, with an effective date and Date of Rank (DOR) of 1 May 88. The applicant was considered and nonselected for promotion to lieutenant colonel by the CY92B Lieutenant Colonel CSB which convened on 16 Nov 92. Based on a voluntary Date of Separation (DOS) of 30 Sep 93, he was ineligible to meet the CY93A Lieutenant Colonel CSB which convened on 12 Oct 93. ________________________________________________________________ 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 Central Selection Boards 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 does fall under the Berkley decision. The errors claimed by the applicant occurred during promotion boards conducted in 1992. 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. AF/JAA recommends the applicant’s request be denied as untimely. Although the applicant's case otherwise falls within the ambit 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. As the limitations period did not run during the applicant's active duty time, it could not have started running until after he separated in October 1993. Although the Board may excuse an untimely filing in the interest of justice, the burden is on the applicant to establish why it would serve the interests of justice to excuse the late application. In order to excuse a delay, the applicant must show that the error was not discoverable, or that even after due diligence, it could not have been discovered. Against this backdrop, the applicant merely asserts that he was never notified by the Air Force about the Berkley decision or the unconstitutionality of the Equal Opportunity language used in the promotion board that purportedly impacted him. He asserts that he only learned about the Berkley decision in late 2010 when a colleague informed him of the issue. The applicant has not met his burden of showing why an injustice will occur if he is not granted relief. It is clear from his application that he did not complain by Oct 96 (three years after his separation). Clearly, the issue about which the applicant complains (the language of the MOI) was discoverable at the time it occurred, as well as any subsequent point in time. The applicant's assertion that it would be unreasonable to expect him to be aware of problems with the EEO language before the language was found to be unconstitutional begs the question of why due diligence as far back as 1992 would not have discovered the issue. In essence, the applicant asserts that language already under judicial attack by others prior to any judicial determination of unconstitutionality was not discoverable in the applicant's case until the 2002 determination of unconstitutionality in Saunders. Even if one were to assume, arguendo, that the 2002 cases "started the clock running" for purposes of his awareness, the applicant has failed to demonstrate why his claim should not be barred by his waiting an additional eight years to "discover" the problem with the 1992 EEO language. His bare assertion that the Air Force never notified him-which, of course, was never a requirement--does not support a waiver of the time period established by statute for relief, as he failed to exercise the due diligence required by law. The complete AF/JAA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Although JAA argues that he did not exert due diligence in discovering the error, he has done nothing wrong. He served his country faithfully and was wronged when unconstitutional instructions were given to his promotion board. The only question is whether or not his filing nine years after the final decision in U.S. Berkley overcomes the harm done by the Air Force. As the Board is aware, several cases filed in 2007 and later were favorably considered by the Board. The additional time delay in his case is not so great so as to warrant depriving him of a remedy. JAA’s argument that he did not exercise due diligence is misplaced. He was out of the Air Force. People who are no longer in the Air Force do not closely follow what is going on with the Air Force. The Berkley case did not relate to promotion, so even if he had heard about it, it is doubtful he would have automatically assumed the Air Force made the same constitutional error with his promotion board. He filed his request for correction in early 2011 and has met his burden of due diligence. JAA also argues that the Air Force had no duty to notify him and he has not asserted the position that the Air Force had a burden to notify him. He simply states that he did not hear of the problems with his promotion Board and had no reason to believe that there were any procedural errors with the Board and has met his burden of due diligence. In addition, he “obviously had no theory for claiming relief until it was provided for him by another Air Force officer.” If the Board should find that the application is untimely, he requests the Board hear the case as a matter of equity. 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. 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 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. ________________________________________________________________ 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-2011-01909 in Executive Session on 7 February 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 11 Jul 11. Exhibit D. Letter, HQ USAF/JAA, dated 29 Jul 11. Exhibit E. Letter, SAF/MRBR, dated 5 Aug 11. Exhibit F. Letter, Counsel, dated 2 Sep 11.