RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00630 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be considered by a Special Selection Board (SSB) for promotion to the grade of Major, O-4 and he be retired as a Major. APPLICANT CONTENDS THAT: He was recently informed by a friend that there was an investigation which determined that there had been some peculiarities in the promotion boards from the time he was passed over for promotion to the grade of Major, O-4. It had come to light that the board was told to promote women and minorities over white males. He heard that some members have had their record reviewed upon request; however, he was never contacted to see if he wanted to be a part of this action. He has never received any information from the Air Force but would appreciate if his records could be reviewed to determine if he is in the group that should have been promoted. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to documents extracted from his military personnel record the applicant is a former member of the Regular Air Force who served from 27 April 1982 through 30 April 1995 and was released from active duty with an honorable characterization of service and a narrative reason for separation of “involuntary discharge: non-selection permanent promotion.” He was credited with 12 years, 8 months and 5 days of active service The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPSOO recommends that the application be denied as untimely. DPSOO states that the applicant met and was non-selected for promotion to major by the CY93B (IPZ) and CY94A (APZ) Major Line Central Selection Boards, which convened on 6 December 1993 and 22 August 1994 respectively. The applicant contends that the board 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 Memorandum of Instructions was provided to Central Selection Boards that convened between January 1990 and June 1998 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 to him by other parties. 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. They strongly recommend the board find that it would not be in the interest of justice to excuse the delay. The fact that previous cases may have been approved should not be used as precedence for any future cases. The complete AFPC/DPSOO evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request, the applicant provides a rebuttal though counsel, which states that the applicant is the victim of racial and sexual discrimination. On this, there can be no doubt, as AFPC/DPSOO concedes. Of course, it is undeniable in the face of the plain holding of Berkley v. United States, 287 F.3d 1076 (Ct. App. Fed. Cir. 2001), in which the precept and instructions given to the selection board was verbatim with that given to the RIF board in Berkley. Sadly, the Air Force personnel bureaucracy finds an excuse for the Air Force to duck its fundamental responsibility to correct an injustice by stating that lack of timeliness somehow cancels out racial and gender discrimination. AFPC then proceeds to an analysis as to whether “the interests of justice” are served with this Board exercising its discretion on the issue of timeliness, and unsurprisingly decides that they are not. In this AFPC is wrong, and its memorandum seriously misleads this Board. Timeliness for this and all other service correction boards is governed by statute, 10 U.S.C. § 1552. (b) No correction may be made under subsection (a) (l) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. The clock is started upon the applicant's discovery of the injustice, not when the error occurs. This is the language of statute, which is not optional for the Air Force to observe. Such flexibility only makes sense, as the express purpose of the service correction board statute is to correct errors and injustices within the military without the necessity of resort to the courts or to special legislative relief. It is important to understand that unlike the above-quoted section of 10 U.S.C. § 1552, statutes of limitations are jurisdictional - failure to timely bring a claim deprives the relevant court of jurisdiction. Not so for this Board. Hypothetically, even if the applicant had brought his claim more than three years after he discovered it; this Board could waive that delay “in the interests of justice.” Happily, because the claim was brought well before three years from discovery, the “interests of justice” analysis is unnecessary in this case. Four points bear repeating: (1) AFPC concedes that there was error and injustice in this case; (2) The “interest of justice” analysis is neither necessary nor appropriate in this case as the statute’s criterion is three years from when the applicant discovered the error; (3) even if the “interests of justice” protocol were undertaken by this Board, none of the three cases argued by AFPC is applicable; and (4) the interests of justice are always served when this Board exercises its authority to correct racial and gender discrimination, no matter what. Worth considering is that this exact boilerplate advice from AFPC was apparently replicated in a recent case before this very Board, BC-2011-01859. That officer, like the applicant, first learned of the Berkley decision from a fellow former AF pilot and the following year brought his action to this Board. Recognizing that one case is not precedent for another, there is no reason in law, logic, or simple justice to treat the applicant any differently, particularly where, as here, he filed well within the three-year period after he learned of the injustice. An adjudicated injustice was visited on the applicant by the Air Force. There is no basis in law, equity, or common sense for this Board not to correct it. This Board has done the right thing in such cases, and there is no reason not to continue doing so. 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 untimely. 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 (AFI) 36-2603, Air Force Board for Correction of Military Records. The applicant has not shown a sufficient reason for the delay in filing. Although the applicant contends he recently learned of the irregularities with the promotion board, we note the Air Force’s settlement in the Berkley case occurred over 10 years ago and was widely publicized. 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 the applicant would be unaware of the opportunity to join the class-action suit or the subsequent settlement agreement until some 10 years later. Further, the applicant has not demonstrated the error was not discoverable, or that even after due diligence, it could not have been discovered. We are also not persuaded the record raises issues of error or injustice, which require resolution on the merits. While the improper Air Force Memorandum of Instruction (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 or may not be qualified for promotion. The applicant has not met his burden of showing why an injustice will occur if he is not granted relief. The applicant, through counsel, asserts that hypothetically, even if he had brought his claim more than three years after he discovered it; this Board could waive that delay “in the interests of justice,” however, happily, because the claim was brought well before three years from discovery, the “interests of justice” analysis is unnecessary in this case. Notwithstanding counsel’s interpretation, we believe that with due diligence as far back as 1992 it should have been discovered. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. 2.  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 AFBCMR Docket Number BC-2014-00630 in Executive Session on 06 January 2015, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00630 was considered: Exhibit A.  DD Form 149, dated 30 Jan 2014, w/atchs. Exhibit B.  Excerpts of Applicant's Master Personnel Records. Exhibit C.  Letter, AFPC/DPSOO, dated 10 Apr 2014. Exhibit D.  Letter, SAF/MRBR, dated 22 Sep 2014. Exhibit E.  Letter, Counsel, dated 21 Oct 2014. F