RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02591 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be considered for promotion to the grade of Colonel by a Special Selection Board (SSB) for the Fiscal Years 1996A (FY96A), FY97A, and FY98A Reserve Line and Nonline Colonel Central Selection Boards (CSBs). _________________________________________________________________ APPLICANT CONTENDS THAT: In a 5-page brief from his counsel, the applicant contends the following: He should receive SSB consideration for promotion to colonel based on the decision of the U.S. Court of Appeals for the Federal Circuit in Berkley v. United States. A Secretary of the Air Force Memorandum of Instruction (MOI) was delivered to the members of each selection board he met. The MOE 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 colonel. Because of this language, his board was unjust. Further, as a result of the language he was passed over for promotion to the grade of colonel. Counsel refers to the decision of 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 the applicant was prejudiced by this instruction. He only learned in 2012 that the Air Force had used impermissible language at this promotion board. He has heard through his brother that another Air Force pilot was promoted by a SSB. It is well settled by this Board that the language in the MOI was unconstitutional and prejudiced him in his non-selection for promotion to colonel. Should the Board find that the filing is untimely; the Board should excuse any untimely filing in the interest of justice. The Board has excused untimely fillings in a number of cases of similarly situated applicants. In support of his request, the applicant provides a personal statement, his counsel’s brief, copies of his Promotion Recommendation Forms (PRFs), 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 considered, but not selected for promotion to the grade of colonel by the A0696A, A0697A and A0698A Colonel Line Central Selection Boards. On 31 Jul 89, the applicant was released from active duty by reason of voluntary resignation – completion of active duty service commitment. On 27 Mar 13, a copy of a Record of Proceedings (ROP) which was provided to the Board, was forwarded to the applicant’s counsel for review and comment within 30 days. To date, a response has not been received by this office (Exhibit E). _________________________________________________________________ AIR FORCE EVALUATION: ARPC/CV recommends approval for SSB consideration for the FY96A, FY97A, FY98A Reserve Colonel Selection Boards, stating the MOI for each of these boards was determined by the Department of Justice to be unconstitutional. The complete CV evaluation, with attachment, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 7 Aug 12, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (Exhibit C). _________________________________________________________________ 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, Air Force Board for Correction of Military Records, 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. However, the Air Force settled the Berkley case 11 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 11 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 11 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 the 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 Docket Number BC-2012-02591 in Executive Session on 3 May 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Jun 12, w/atchs. Exhibit B. Letter, ARPC/CV, dated 17 Jul 12. Exhibit C. Letter, SAF/MRBR, dated 7 Aug 12. Exhibit D. Letter, SAF/MRBC, dated 27 Mar 13, w/atch.