RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02373 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 under 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; Nonselect letters; an affidavit, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 30 Nov 94 retirement. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force from 5 Nov 74 through 30 Nov 94. He was progressively promoted to the grade of major, with an effective date and Date of Rank (DOR) of 1 Mar 80. The applicant was considered and nonselected for promotion to the grade of lieutenant colonel by the CY90, CY91A, CY91B, CY92B, and the CY93A Lieutenant Colonel CSBs. The applicant was relieved from active duty, on 30 Nov 94, with a reason for separation of mandatory retirement: maximum service or time in grade. He was credited with 20 years and 26 days of active duty service. ________________________________________________________________ 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 1990 and 1991. 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. They note, though the applicant's case otherwise falls within the realm 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 Nov 94. 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. In our opinion, 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 Nov 97 (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 1990 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 we 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 nine years to "discover" the problem with the 1990 and 1991 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. In our opinion, the applicant has 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: A copy of the Air Force evaluation was forwarded to the applicant on 2 Sep 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 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. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02373 in Executive Session on 21 February 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Jun 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 9 Aug 11. Exhibit D. Letter, HQ USAF/JAA, dated 23 Aug 11. Exhibit E. Letter, SAF/MRBR, dated 2 Sep 11.