ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2011-02581-3

   						COUNSEL:  YES

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

Through counsel, he be granted a Special Selection Board (SSB) for the Calendar Years 1990 and 1991 (CY90 & CY91) Lieutenant Colonel Central Selection Boards (CSBs).

STATEMENT OF FACTS:

On 2 Jul 11, the applicant submitted his original DD Form 149, Application for Correction of Military Record, contending his selection boards were given a Memorandum of Instruction (MOI) which unconstitutionally discriminated against him by favoring records of minority and female officers.  He claims this instruction contributed to his non-selection for promotion to the grade of lieutenant colonel.  

In support of his application, he specifically cites as authority Berkley v. United States, 287 F.3d 1076 (Fed Cir 2002).  That case scrutinized the language used in Air Force selection boards, including the boards that non-selected him for promotion.

According to AFPC/DP2SP, the applicant met and was non-selected for promotion to lieutenant colonel by the CY90 and CY91A Lieutenant Colonel Line CSBs which convened on 16 Jan 90 and 15 Apr 91 respectively.

On 21 Feb 12, the Board considered and denied the applicant’s original request for a SSB as untimely.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit G.

On 11 Jan 13, he requested reconsideration (see Exhibit H); however, on 24 Jan 14, the AFBCMR Executive Director denied reconsideration on the basis the submitted materials contained no newly discovered relevant evidence (see Exhibit I).  

On 4 Jan 16, the United States District Court issued the Civil Action No. 14-1364 memorandum and order directing the AFBCMR to conduct a de novo reconsideration of 11 cases, to include the applicant’s, permitting the applicant to submit any additional matters he might want to place before the AFBCMR (see Exhibit J).  

On 25 Feb 16, the AFBCMR notified applicant’s counsel of the de novo reconsideration and provided 30 days to submit any additional supporting documentation to support his case (see Exhibit K).  

On 5 Apr 16, counsel notified the AFBCMR that the applicant would not be submitting additional documentation (see Exhibit L). 

AIR FORCE EVALUATION:

AFPC/DP2SP recommends denial indicating it would not be in the interest of justice to excuse the delay, and that the application is untimely.  The errors claimed by applicant occurred during promotion boards conducted in 1990 and 1991.  The applicant 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 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 fact that previous cases may have been approved should not be used as precedence for any future cases.  To grant relief would be unfair to those officers whose cases were dismissed as untimely and not afforded the opportunity to reapply.

A complete copy of the AFPC/DP2SP evaluation is at Exhibit M.

AFPC/JA recommends the application be denied as untimely and/or pursuant to the equitable doctrine of laches.  AFI 36-2603, Air Force Board for Correction of Military Records, para 3.5 provides, “Ordinarily, applicants must file an application within 3 years after the error or injustice was discovered, or, with due diligence, should have been discovered.”  If an applicant files within three years of the date of “discovery” of the claim, the merits of the claim should be addressed.  If he/she did not, however, the Board must determine whether the failure should be excused “in the interest of justice”.  Statutes of limitations are passed in recognition that with the passage of time evidence is lost and destroyed, memories fade and, at some point in time, an ordered society has an interest in attaching finality to past events.  Additionally, in the context of the Board’s powers of correction, equitable relief, other than money damages, becomes increasingly difficult if not impossible.  Because of the similarity in underlying purpose, the Board should find the courts’ years of accumulated wisdom in interpreting and applying their statutes of limitations instructive.  

In addition to being untimely under the statute of limitations, the applicant’s request may also be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed in asserting a claim.  Laches consists of two elements:  inexcusable delay and prejudice to the Air Force resulting therefrom.  The central theme in all laches cases where courts have found delays to be unreasonable is the applicants simply failed to take any action before filing a claim or suit.  Furthermore, delays as short as three years, eight months have been found to be unreasonable.  The applicant waited 20 years to file his claim and there is no evidence he took any action before doing so.  Given the publicity attendant to cases similar to the applicant’s, the delay is unreasonable and inexcusable.  

The applicant’s unreasonable delay has also caused prejudice to the Air Force.  There are two basic types of prejudice:  “defense prejudice” (i.e., actions that would prevent the Air Force from defending against the claim, such as loss of records, destruction of documents/evidence, fading memories, or unavailability of witnesses) and “economic prejudice” (i.e., consequences to the government should the applicant prevail, such as back pay, retired pay, the prejudicial effect of reinstatement, etc.).  In the applicant’s case, there doesn’t appear to be much “defense prejudice”, as AFPC/DP2SP has indicated they have all documents required to conduct an SSB should one be ordered.  However, there is a great deal of “economic prejudice.”  Should an SSB be held and should applicant be selected for promotion, he would be entitled to a great deal of back pay.  In short, the applicant’s unreasonable delay regarding a matter now dating back 20 years has greatly complicated its ability to provide the requested relief.  

A complete copy of the AFPC/JA evaluation is at Exhibit N.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel refutes virtually every point made by the OPRs and argues that the advisories provide nothing new and rather appear to be an attempt to bolster the previous Board decision.  Their independence is accordingly suspect.  Furthermore, counsel highlights that the Board denied a case that had been filed before a case that was granted and guts the argument that the timing of the cases provides a valid reason for denying them.  The most glaring error in the advisory opinions is the failure to address the fact that the Wilhelmus case holds that the Board cannot treat differently cases that are essentially the same.  There is no significant difference between the granted cases and the denied cases.  Additionally, counsel points out that in prior cases the Board did not fault the applicant for failing to learn of the issue sooner and further points out that AFPC/DP2SP agrees that the applicant had only recently learned of the issue.  Therefore, the Board must find that the applicant only recently learned of the issue.  Finally, the fundamental fairness of the denial must be addressed.  The Air Force deprived the applicant of a fair promotion process and the Air Force should correct this error.  

Examiner note:  Counsel notes errors in the original AFPC/JA advisory that was subsequently corrected and rendered on the applicant.  On 14 Sep 16, the AFBCMR staff provided counsel advisories from AFPC/DP2SP and AFPC/JA.  AFPC/JA subsequently revised their advisory opinion, removed the original from the case file, and the AFBCMR staff rendered the revised opinion to counsel on 3 Oct 16.  The Board was provided a copy of the original erroneous AFPC/JA advisory for BC-2011-01909 for context in order to fully understand counsel’s contentions.

A complete copy of the counsel’s rebuttal is at Exhibit Q.  

FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  Based on the court decision to have the Board take a de novo reconsideration of the applicant’s request and after a careful review of the applicant's contentions, documentation submitted by counsel in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We first noted the applicant did not provide any additional evidence, beyond the 2013 submission, to support his claim for reconsideration and the Board further notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  While the Board notes counsel states the applicant was not a part of the Berkley class in his 2013 submission, the Board also noted the applicant specifically contends he should receive SSB consideration based on the decision in Berkley in his original application.  The Board further agrees with AFPC/JA evaluation that the Air Force settled the Berkley cases, and subsequent similar class action lawsuits, well over a decade ago and the applicant again 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.  These cases were highly publicized and the information needed to make a claim was readily and publicly available years ago making it implausible that any officer non-selected for promotion would not have taken initiative to inquire about the MOI utilized in his or her selection board.  

2.  With respect to the applicant’s counsel argument that the Board denied a case that had been filed before a case that was granted and the advisory opinions fail to address that the Board cannot treat differently cases that are essentially the same, the Board notes the previous case in question was decided by the Board after the last granted case.  Although it may seem illogical that the Board could deny a case to only grant relief later to a case that was filed, the Board relies on the decision date, not the filing date, to set precedent for the Board’s later decision (hence the term “stare decisis”).  The Board receives thousands of applications each year and processing times vary depending on a number of variables (how well the application is written/supported, how quickly the advisory is received, staff and panel availability, etc.).  So, it should not be surprising that cases filed close in time may have differing decision dates, but until the decision itself is made, there is no precedent to follow.  In this group of cases, once the decision was made to deny relief, the Board has consistently followed that precedent.

3.  The Board also decided to review the case as completely de novo, anew without being influenced by the prior history in this particular case.  It is through this lens the Board determines, based on the evidence presented, the applicant did not provide sufficient evidence, to our satisfaction, that overcomes the failure to timely file.  Because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Although the Board has in the past gone to great lengths to provide relief to those members affected by the improper MOI, the Board again determined the time it takes to process an application is no longer an infinite resource.  The applicant seems to take lightly the Board’s resource constraints but those constraints are a reality that the Board must consider in the interest of all applicants.  The 3-year timeliness standard ensures that the Board doesn’t spend time on aged cases at the expense of those who have not slumbered on their rights.  Moreover, as we have seen in similar cases, full and fitting relief gets increasingly difficult to fashion with the passage of time as it relates to recreating follow-on assignments, promotions, and career opportunities.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the 3-year statute of limitations found in 10 U.S.C. § 1552(b).  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-2011-02581-3 in Executive Session on 8 Nov 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02581-3 was considered:

	Exhibit G.  Letter, AFBCMR, dated 8 Jun 12, w/ROP.
Exhibit H.  Reconsideration Request, dated 11 Jan 13, w/atch.
	Exhibit I.  Letter, AFBCMR, dated 24 Jan 14.
Exhibit J.  Memorandum and Order, U.S. District Court, dated 4 Jan 16.
	Exhibit K.  Letter, AFBCMR, dated 25 Feb 16, w/atchs.
	Exhibit L.  Email from Counsel, dated 5 Apr 16.
Exhibit M.  Memorandum, AFPC/DP2SP, dated 30 Aug 16.
	Exhibit N.  Memorandum, AFPC/JA, dated 30 Sep 16.
	Exhibit O.  Letter, AFBCMR, dated 14 Sep 16.
	Exhibit P.  Letter, AFBCMR, dated 3 Oct 16.
	Exhibit Q.  Counsel’s Rebuttal, dated 3 Nov 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.