RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03668 COUNSEL: YES HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be considered for promotion to the grade of major by special selection boards (SSB) for the Calendar Years 1993B (CY93B) and 1994A (CY94A) Major Line Central Selection Boards (CSB). ________________________________________________________________ APPLICANT CONTENDS THAT: He was prejudiced and passed over for promotion to major. A Memoranda of Instruction (MOI) that was issued by the Secretary of the Air Force contained equal opportunity language, which instructed the CSB to unconstitutionally consider race and gender when selecting officers for promotion to major. Specifically, captains who were female and minorities were given special preference for promotion. As a result of his non- selection promotion to major, he was discharged. He learned in July 2012, that there had been improprieties with his promotion boards. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he entered in the Regular Air Force on 23 January 1983. The applicant was considered and not selected for promotion to the grade of major by the CY93B and CY94A Major Line CSBs. On 30 April 1995, he was honorably discharged with a narrative reason for separation of “non-selection, permanent promotion” and was credited with 12 years, 3 months, and 8 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO strongly recommends denial of the claim because it is untimely. Although the applicant’s request falls under the purview of the Berkley decision, he did not request relief until conferring with 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. In addition, the fact that the claimant was not previously represented by counsel, or that counsel can provide an articulate theory to support an alleged claim, will bar the statue of limitations. A complete copy of the AFPC/DPSOO evaluation is at Exhibit C. AF/JAA recommends the application be denied as untimely and that the applicant has not provided any evidence to show the error was not discoverable. In fact, the language in the MOI existed and was discoverable at the time of his non-selection for promotion. He has failed to exercise due diligence as required by law and has instead relied on the actions of others to provide a basis and theory for recovery long after a reasonable period for pursuing a claim has passed. A complete copy of the AF/JAA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 3 October 2012, for review and comment within 30 days (Exhibit E). As of this date, this office has received no response. ________________________________________________________________ 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. 2. We are also not persuaded the record raises issues of an error or an 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 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 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-2012-03668 in Executive Session on 14 May 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 August 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 12 September 2012. Exhibit D. Letter, AF/JAA, dated 2 October 2012. Exhibit E. Letter, Applicant, dated 3 October 2012.