RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01943 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His records be considered for promotion to the grade of Lieutenant Colonel by a Special Selection Board (SSB) for the Calendar Years 91A (CY91A), CY91B, CY92B, CY93A and CY94A Lieutenant Colonel Central Selection Boards. ________________________________________________________________ APPLICANT CONTENDS THAT: He should receive SSB consideration for promotion. A Secretary of the Air Force Memorandum of Instruction (MOI) was delivered to the members of each selection board he met. The MOI contained equal employment opportunity (EEO) language that instructed the board to unconstitutionally consider race and gender when selecting officers for promotion to the grade of Lieutenant Colonel. Because of this language, his board was unjust. Further, as a result of this language he was passed over for promotion to Lieutenant Colonel. Counsel refers to the decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v United States that the special instructions to the selection boards erroneously required differential treatment of officers, based on their race and gender, and applicant was prejudiced by this instruction. In support of his request, the applicant provides his personal statement, his counsel’s brief, copies of AF Form 709, Promotion Recommendation, for Boards 0591A, 0591B, 0592B, 0593A, and 0594A, a CY91B Major Selective Continuation Board Statement of Acceptance/Declination for Initial Continuation, and 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 was promoted to the grade of Major on 1 October 1986. He was considered and not selected for promotion to the grade of lieutenant colonel by the CY91A and CY91B Central Selection Boards. He was offered and accepted continuation in the Air Force on 6 February 1992. The applicant continued meeting promotion boards until he was honorably retired in the grade of major on 30 June 1995. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOO recommends denial. DPSOO states the applicant contends the Central Selection Boards’ 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 the boards convened between January 1990 and June 1998 did contain the same EEO clause and may have harmed officers meeting these boards. Therefore, the applicant’s request does fall under the Berkley decision. DPSOO recommends the application be denied as untimely. The errors claimed by the applicant occurred during promotion boards conducted in 1991, 1992, 1993, and 1994. 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 limitation period. DPSOO strongly recommends 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 complete DPSOO evaluation is at Exhibit C. AF/JAA recommends denial. Though the applicant’s case otherwise falls within the ambit of Berkley, AF/JAA recommends that his application be denied as untimely. AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 3.5, implements the three-year limitations period established by 10 USC 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. 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 interest of justice to excuse the late application. AF/JAA opines the applicant has not met his burden of showing why an injustice will occur if he is not granted relief. The applicant’s assertion that it would be unreasonable to expect him to be aware of problems with the Equal Employment Opportunity (EEO) language before the language was found to be unconstitutional begs the question of why due diligence as far back as 1992 would not have discovered the issue. Eeven assuming arguendo, the 2002 litigation case “started the clock running” for purposes of awareness, he has failed to demonstrate why his claim should not be barred by his waiting an additional eight years to “discover” the problem with the 1992 EEO language. The applicant has failed to exercise due diligence required by law. Accordingly, AF/JAA recommends the applicant’s request be denied as untimely. The complete AF/JAA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states that AF/JAA’s argument the applicant did not exercise due diligence is misplaced. They acknowledge the applicant “obviously had no theory for claiming relief until it was provided for him by another Air Force officer.” The applicant has clearly stated that he had no knowledge of the matter until he was apprised of the issue by that officer in late 2010. He filed his request for correction in early 2011. The applicant has met his burden of due diligence. If the Board should find the application is untimely, counsel requests the Board hear the case in the interest of justice. The complete response is at Exhibit F. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: 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 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 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. ________________________________________________________________ DECISION OF THE BOARD: 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 this application BC-2011-01943 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 1 May 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 12 July 2011. Exhibit D. Letter, HQ USAF/JAA, dated 14 November 2011. Exhibit E. Letter, SAF/MRBR, dated 18 November 2011. Exhibit F. Letter, Counsel, dated 14 December 2011.