§14502 — Title 10 Armed Forces | U.S. Code

Summary

If an officer was left out of a required promotion board because of an administrative mistake, the service Secretary must set up a special selection board to decide if that officer should have been picked. The Secretary may also set up a special board if the original board broke the law, made a big error in fact or administration, or missed important information. Special boards follow the same rules as regular promotion boards and members must take the same oath. The board looks at the officer’s record as it should have appeared to the original board and compares it to samples of peers who were and were not recommended. The board must send a signed written report naming anyone it recommends. If a mandatory-error special board does not recommend an officer below the grade of colonel (captain in the Navy), that officer is treated as having failed selection. If a discretionary special board does not recommend an officer at lieutenant colonel/commander or below, the officer is treated as having failed the original board but gets no extra penalty from the special board. If the special board recommends promotion, the officer must be promoted as soon as possible and receive the same date of rank, pay effective date, and reserve list position they would have gotten if chosen by the original board. If the board recommends someone not currently eligible or a former officer, the Secretary may correct that person’s records under the rules for correcting military records. The Defense Secretary can set rules for applying and time limits for asking for a special board. Courts generally cannot hear claims about not being selected until the Secretary has sent the claim to a special board or has rejected it without a board. A court can review a Secretary’s decision not to convene a special board and can remand the case if that decision was arbitrary or capricious, not based on substantial evidence, or otherwise contrary to law. A court can also remand if a special board’s action was unlawful or had material errors, requiring a new special board. The service Secretary may also name a regular promotion board to serve as a special selection board.

Title 10, §14502

Armed Forces — Source: USLM XML via OLRC

(a)(1)In the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for selection for promotion from in or above the promotion zone by a mandatory promotion board convened under section 14101(a) of this title because of administrative error, the Secretary concerned shall convene a special selection board under this subsection to determine whether such officer or former officer should be recommended for promotion. Any such board shall be convened under regulations prescribed by the Secretary of Defense and shall be appointed and composed in accordance with section 14102 of this title and shall include the representation of competitive categories required by that section. The members of a board convened under this subsection shall be required to take an oath in the same manner as prescribed in section 14103 of this title.

(2)A special selection board convened under this subsection shall consider the record of the officer or former officer as that record would have appeared to the promotion board that should have considered the officer or former officer. That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board.

(3)If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer in a grade below the grade of colonel or, in the case of an officer or former officer of the Navy, captain, whose name was referred to it for consideration, the officer or former officer shall be considered to have failed of selection for promotion.

(b)(1)In the case of an officer or former officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone under this chapter by a mandatory promotion board convened under section 14101(a) of this title but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board under this subsection to determine whether the officer or former officer should be recommended for promotion, if the Secretary determines that—

(A)the action of the mandatory promotion board that considered the officer or former officer was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or

(B)the mandatory promotion board did not have before it for its consideration material information.

(2)A special selection board convened under paragraph (1) shall be appointed and composed in accordance with section 14102 of this title (including the representation of competitive categories required by that section), and the members of such a board shall take an oath in the same manner as prescribed in section 14103 of this title.

(3)The special selection board shall consider the record of the officer or former officer as that record, if corrected, would have appeared to the mandatory promotion board that considered the officer or former officer. That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board.

(4)If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer in the grade of lieutenant colonel or commander or below whose name was referred to it for consideration, the officer or former officer shall be considered to have failed of selection for promotion by the board which did consider the officer but incurs no additional failure of selection for promotion from the action of the special selection board.

(c)Each special selection board convened under this section shall submit to the Secretary of the military department concerned a written report, signed by each member of the board, containing the name of each officer it recommends for promotion and certifying that the board has considered carefully the record of each officer whose name was referred to it.

(d)The provisions of section 14104, 14109, 14110, and 14111 of this title apply to the report and proceedings of a special selection board convened under this section in the same manner as they apply to the report and proceedings of a promotion board convened under section 14101(a) of this title.

(e)(1)An officer whose name is placed on a promotion list as a result of recommendation for promotion by a special selection board convened under this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him.

(2)An officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

(3)If the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

(f)The Secretary of Defense may prescribe by regulation the circumstances under which consideration by a special selection board is contingent upon application for consideration by an officer or former officer and time limits within which an officer or former officer must make such application in order to be considered by a special selection board under this section.

(g)No official or court of the United States shall have power or jurisdiction—

(1)over any claim based in any way on the failure of an officer or former officer of the armed forces to be selected for promotion by a selection board convened under chapter 1403 of this title until—

(A)the claim has been referred to a special selection board by the Secretary concerned and acted upon by that board; or

(B)the claim has been rejected by the Secretary without consideration by a special selection board; or

(2)to grant any relief on such a claim unless the officer or former officer has been selected for promotion by a special selection board convened under this section to consider the officer’s claim.

(h)(1)A court of the United States may review a determination by the Secretary concerned under subsection (a)(1), (b)(1), or (e)(3) not to convene a special selection board. If a court finds the determination to be arbitrary or capricious, not based on substantial evidence, or otherwise contrary to law, it shall remand the case to the Secretary concerned, who shall provide for consideration of the officer or former officer by a special selection board under this section.

(2)If a court finds that the action of a special selection board which considers an officer or former officer was contrary to law or involved material error of fact or material administrative error, it shall remand the case to the Secretary concerned, who shall provide the officer or former officer reconsideration by a new special selection board.

(i)The Secretary of the military department concerned may designate a promotion board convened under section 14101(a) of this title as a special selection board convened under this section. A board so designated may function in both capacities.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in section 5904 of this title, prior to repeal by Pub. L. 103–337, § 1629(b)(2).

Amendments

2015—Subsec. (a)(1). Pub. L. 114–92, § 502(c)(2), struck out “or whose name was not placed on an all-fully-qualified-officers list under section 14308(b)(4) of this title because of administrative error,” after “administrative error,”. Subsec. (b)(1). Pub. L. 114–92, § 512(1), substituted “a mandatory promotion board convened under section 14101(a) of this title” for “a selection board” in introductory provisions and “mandatory promotion board” for “selection board” in subpars. (A) and (B). Subsec. (b)(3). Pub. L. 114–92, § 512(2), in first sentence, substituted “The special selection board” for “Such board” and “mandatory promotion board” for “selection board”. 2006—Subsec. (b)(1)(A). Pub. L. 109–364 inserted “in a matter material to the decision of the board” after “contrary to law”. 2001—Subsec. (a)(1). Pub. L. 107–107 inserted “or whose name was not placed on an all-fully-qualified-officers list under section 14308(b)(4) of this title because of administrative error,” after “because of administrative error,”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2006 AmendmentAmendment by Pub. L. 109–364 effective Mar. 1, 2007, and applicable with respect to selection boards convened on or after that date, see section 514(c) of Pub. L. 109–364, set out as a note under section 628 of this title.

Effective Date

Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title.

§14502 Special selection boards: correction of errors

Summary

Title 10, §14502

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata