RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02350 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be reconsidered for promotion to the grade of major by Special Selection Board (SSB) for the Calendar Year 1995A (CY95A) and CY96A Major Line 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. This instruction contributed to his non- selection for promotion to the grade of major. 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. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s DD Form 214 reflects he served in the Regular Air Force from 30 May 84 through 30 Nov 96. He was progressively promoted to the grade of captain, with an effective date and Date of Rank (DOR) of 30 May 88. He entered the Air Force Reserve and was promoted to major on 1 Oct 97. The applicant was considered and nonselected for promotion to major by the CY95A and CY96A Major Line Central Selection Boards (CSB) which convened on 5 Jun 95 and 4 Mar 96, respectively. The applicant was offered selective continuation on active duty but declined. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOO recommends denial, stating, in part, 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. The fact that previous cases may have been approved should not be used as precedence for any future cases. 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 1995 and 1996. 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 realm of Berkley, the application should 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. 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. The applicant has not met his burden of showing his claim should not be barred for lack of timeliness. He separated in 1996 after being twice passed over for promotion to major. He has filed a request for records correction 15 years after the 1996 board, asserting that he only learned about the Berkley decision in late 2010 when a former Air Force officer informed him of the issue. If in fact, the applicant only learned of this issue in late 2010, due diligence on his part would have revealed the existence of the problem long ago. In order to excuse a delay, the applicant must show the error was not discoverable, or that even after due diligence, it could not have been discovered. The applicant must show why an injustice will occur if he is not granted relief. The EO board instruction cases were highly publicized in the 1990s and early 2000s making it implausible that any officer non-selected for promotion would have not have taken the initiative to inquire, if only out of curiosity about the MOI involving their selection board. The information he needed to make his claim was readily and publicly available years ago. While the AFBCMR has found Berkley cases, similar to the applicant’s case, as untimely filed but has exercised its discretion to grant relief in the interest of justice, justice is not served by granting the applicant relief in his case because of the extraordinary length of time that has passed. At some point in time, granting review of these untimely filed Berkley cases is tenuous at best and would result in an unwarranted windfall to individuals who simply do nothing to pursue a claim for years past the statutory limitation period. The complete AF/JAA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: JAA argues the applicant did not exert due diligence in discovering the error but he has done nothing wrong in this case. 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. v. Berkley, 287 F.3d 1076 (Fed. Cir 2002) overcomes the harm done by the Air Force. The Board granted several cases filed in 2007 and later. Recently the Board granted relief in BC-2011-01859, a similar case filed in 2011. The time delay in the applicant’s case is not so great so as to warrant depriving him of a similar remedy. In addition, JAA acknowledges that he “obviously had no theory for claiming relief until it was provided for him by another Air Force member.” He has stated that he had no knowledge of the matter until he was apprised of the issue by that member. If the Board should find the application is untimely, he requests the Board hear the case as a matter of equity. Counsel’s complete response is at Exhibit E. ________________________________________________________________ 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. 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 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 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-2011-02350 in Executive Session on 22 Mar 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Jun 11, atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 5 Dec 11. Exhibit D. Letter, USAF/JAA, dated 16 Dec 11. Exhibit E. Letter, SAF/MRBR, dated 23 Dec 11. Exhibit F. Letter, Counsel, dated 13 Jan 12, w/atch.