RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01859 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He be granted Special Selection Board (SSB) consideration by the Calendar Year 1994 (CY94A) and Calendar Year 1996 (CY96C) Lieutenant Colonel Line Central Selection Boards. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant, through counsel, contends the selection process used by both of his promotion boards was unconstitutional. The two selections boards were given a Memorandum of Instruction (MOI) which unconstitutionally discriminated against him by favoring the records of minority and female officers. The MOI contained equal opportunity (EO) language that instructed the board to unconstitutionally consider race and gender when selecting officers for promotion to lieutenant colonel. This instruction contributed to his non-selection for promotion to the grade of lieutenant colonel and ultimately led to his involuntary separation (for being twice non-selected for promotion to lieutenant colonel). He should receive SSB consideration for promotion based on the decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v. United States. In 2010, he was told by a fellow former Air Force pilot there were irregularities with the promotion board processing during the 1990s. Prior to this, he had no knowledge of any problems with his boards. In support of his request, the applicant provides a counsel’s brief, copies of his nonselection memorandums, continuation agreement, his DD Form 214, Certificate of Release or Discharge from Active Duty, and a personal statement. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was considered and not selected for promotion to the grade of lieutenant colonel by the CY94A and CY96C Lieutenant Colonel Line Central Selection Boards which convened on 11 Oct 94 and 8 Jul 96, respectively. On 31 Aug 99, the applicant was released from active duty and honorably retired on 1 Sep 99. The applicant’s case falls within the ambit of Berkley v. United States. This case specifically scrutinized the language used in Air Force selection boards, including the boards that non- selected the applicant for promotion. The Air Force has consistently maintained, in litigation and public comment, that the challenged language is not a constitutionally objectionable classification and creates no benefits or burdens for competitors in the board processes. Nevertheless, in a split decision, the court in Berkley concluded that because “the MOI requires differential treatment of officers based on their race or gender, it must be evaluated under a strict scrutiny analysis. In order to determine whether there has been an equal protection violation under the strict scrutiny standard, further inquiry is required to ascertain whether the racial classification serves a compelling government interest and whether it is narrowly tailored to the achievement of that goal.” The government declined to appeal this part of the decision; thus the Air Force is bound by the court’s conclusion. _________________________________________________________________ AIR FORCE EVALUATIONS: HQ AFPC/DPSOO recommends the application be denied as untimely. DPSOO states the fact that previous cases may have been approved should not be used as precedence for any future cases. DPSOO states the MOI provided to Central Selection Boards that 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. DPSOO states the errors claimed by the applicant occurred during promotion boards conducted in 1994 and 1996. The applicant obviously had no theory for claiming relief until it was provided for him by another Air Force officer. 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 complete DPSOO evaluation is at Exhibit C. HQ USAF/JAA recommends the application be denied as untimely. JAA states 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. JAA states in their 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 he did not complain by Aug 02 (three years after his separation) of language that had existed since 1990. Clearly, the issue about which the applicant complains (the language of the MOI) was discoverable at the time it occurred (in 1994 and 1996), as well as any subsequent point in time. The applicant’s assertion 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 1994 would not have discovered the issue. In essence, the applicant asserts that language already judicially attacked by others prior to any judicial determination of unconstitutionality was not discoverable in the applicant’s case until 2002. Assuming, 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 1994 and 1996 EEO language. The applicant’s bare assertion 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. The complete JAA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The applicant served his country faithfully and was wronged when unconstitutional instructions were given to his promotion board. The only question is whether or not the applicant’s filing nine years after the final decision in Berkley overcomes the harm done to him by the Air Force. As the Board is aware, several cases filed in 2007 and later were heard by this Board and relief was granted. JAA’s argument the applicant did not exercise due diligence is misplaced. The applicant retired in 1999, and had no reason to question the constitutionality of his promotion boards unless he hears something about the issue. While the Berkley decision did generate some publicity in personnel and legal worlds it clearly did not cross over into the rest of the Air Force population, much less retired personnel. Further, the Berkley did not relate to promotion, so even if the applicant had heard about it, it is doubtful he would have assumed that the Air Force made the same error with his promotion board. The Counsel’s complete response is at Exhibit F. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant providing the applicant promotion consideration by a Special Selection Board (SSB) for the CY94A and CY96C Lieutenant Colonel Central Selection Boards. The applicant contends that he should receive SSB consideration for promotion based on the decision of the U.S. Court of Appeals for the Federal Circuit in Berkley, that the special instructions to the selection board erroneously required differential treatment of officers based on their race and gender. We note that the offices of primary responsibility have recommended the applicant’s request be denied as untimely; however, we believe based on the merits, it is in the interest of justice to waive timeliness in this case. In view of the court’s findings and since the Air Force is not appealing that decision, we recommend his records be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be considered for promotion to the grade of lieutenant colonel by a Special Selection Board (SSB) for the Calendar Year 1994A and 1996C Lieutenant Colonel Line Central Selection Boards. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-01859 in Executive Session on 28 Nov 11, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2011-01859 was considered: Exhibit A. DD Form 149, dated 9 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSOO, dated 30 Jun 11. Exhibit D. Letter, HQ USAF/JAA, dated 23 Aug 11. Exhibit E. Letter, SAF/MRBR, dated 26 Aug 11. Exhibit F. Letter, Applicant’s Counsel, dated 26 Sep 11.