RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02623 COUNSEL: HEARING DESIRED: Yes APPLICANT REQUESTS THAT: He be granted Special Selection Board (SSB) consideration by the Calendar Year 1993 (CY93) and CY94 Major Line Central Selection Boards (CSB). ___________________________________________________________ APPLICANT CONTENDS THAT: The selection process used by his promotion board was unconstitutional. The board was 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 major. This instruction contributed to his non-selection for promotion to the grade of major. 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 2011, he was told by a fellow Air Force officer 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 an expanded personal statement, and copies of his counsel’s brief; two AF Forms 709, Promotion Recommendation Form; a copy of his 1994 non-selection memorandum; his DD 214, Certificate of Release or Discharge from Active Duty; and, his Air Force Reserve retirement orders. 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 major by the CY93B and CY94A Major Line (CSB). On 30 Apr 1995, the applicant was involuntarily discharged for non-selection for promotion with an Honorable discharge. He was subsequently promoted to both major and lieutenant colonel as a member of the Air Force Reserve before retiring on 1 Sep 2010. The applicant’s case falls within the ambit of Berkley v. United States. The case specifically scrutinized the language used in Air Force selection boards, including the board 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 process. 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: AFPC/DPSOO recommends this application be denied as untimely, stating that the fact that previous cases which may have been approved should not be used as a precedence for any future cases. The MOI provided to the CSBs 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. The errors claimed by the applicant occurred during promotion boards conducted in 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 limitations period. The complete AFPC/DPSOO evaluation is at Exhibit C. AF/JAA recommends the application be denied as untimely. Although the Board may excuse an untimely filing in the interest of justice, the applicant bears the burden to establish why it serves the interest of justice to excuse a late application. Regardless of whether the applicant did, in fact, only learn of this issue in March 2011, due diligence on his part would have revealed existence of the problem long ago. In order to excuse a delay, the applicant must show the error was not discoverable, or even after due diligence, it could not have been discovered. While the AFBCMR has found Berkley cases, similar to the applicant’s case, as untimely filed but has then exercised its discretion to grant relief in the interest of justice, justice is not served by granting the applicant relief in this case because of the extraordinary length of time that passed. Congress surely did not intend to give claimants an open-ended right to file a claim for years past the three year statutory timeframe. To grant applicant’s untimely request would provide him a potential windfall for failing to act with due diligence for the past 15 years; yet, affording him the same rights as those individuals who acted with due diligence. The complete AF/JAA evaluation is at Exhibit D. ___________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel argues the applicant served his country faithfully and was wronged when unconstitutional instructions were given to this promotion board. The only question is whether or not the applicant’s filing nine years after the final decision in Berkley (circa 2002) 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 that the applicant did not exercise due diligence is misplaced. The applicant separated from active duty in 1995. People who are no longer on active duty do not follow what is going on with the Air Force as closely as active service members. Moreover, the Berkley case did not concern promotion; even if the applicant had heard of the case, it is doubtful he would have automatically assumed that the Air Force made the same constitutional error with his promotion board. The applicant has clearly stated that he did not hear about the issue until late 2010. He filed his request for correction in 2011. He has met his burden of due diligence. Counsel’s complete response is at Exhibit E. ___________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: 1. After careful consideration of applicant’s request and the evidence of record, we find the application is 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, 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. The 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 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 ten 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-2011-02623 in Executive Session on 21 Feb 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jul 11, w/atch. Exhibit B. Applicant’s Master Personnel Records Exhibit C. Letter, AFPC/DPSOO, dated 9 Aug 11. Exhibit D. Letter, AF/JAA, dated 19 Oct 11. Exhibit E. Letter, Applicant’s Counsel, dated 9 Dec 11. Panel Chair