§2120 — Title 14 Coast Guard | U.S. Code

Summary

The Secretary can set up a special promotion board if an administrative mistake kept an officer or former officer from being considered for promotion by a board under section 2106, or if a regular board’s decision was contrary to law, had a material error of fact or administration, or lacked material information. The special board must be made under the rules in section 2107 and its members must take the oaths in section 2109. It will look at the officer’s record as it should have appeared if corrected, compare that record with samples of those who were and were not recommended by the earlier board, and send a written report as required by sections 2117 and 2118. If the special board recommends promotion, the officer or former officer will be placed on the promotion list and promoted as soon as practicable with the same date of rank, pay effective date, and place on the active promotion list they would have had if the original board had recommended them. If the special board does not recommend promotion for an officer of the grade of commander or below (below the grade of captain), that person is treated as having failed selection and will not get an extra failure mark. The Secretary must issue rules for applying, including time limits. Courts and officials cannot act on promotion claims until a special board has acted or the Secretary has rejected the claim without a special board. Courts may review the Secretary’s refusal to convene a special board or a special board’s action; if a court finds a problem it will send the case back and the Secretary must provide a new special board. The Secretary may also name a regular section 2106 board to serve as a special board.

Title 14, §2120

Coast Guard — Source: USLM XML via OLRC

(a)(1)If the Secretary determines that as the result of an administrative error—

(A)an officer or former officer was not considered for selection for promotion by a selection board convened under section 2106; or

(B)the name of an officer or former officer was not placed on an all-fully-qualified-officers list;

(2)If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer, whose grade is below the grade of captain and whose name was referred to that board 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, was considered for selection for promotion by a selection board convened under section 2106, and was not selected for promotion by that board, the Secretary may convene a special selection board to determine whether the officer or former officer should be recommended for promotion, if the Secretary determines that—

(A)an action of the selection board that considered the officer or former officer—

(i)was contrary to law in a matter material to the decision of the board; or

(ii)involved material error of fact or material administrative error; or

(B)the selection board that considered the officer or former officer did not have before it for consideration material information.

(2)If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer, whose grade is that of commander or below and whose name was referred to that board for consideration, the officer or former officer shall be considered—

(A)to have failed of selection for promotion with respect to the board that considered the officer or former officer prior to the consideration of the special selection board; and

(B)to incur no additional failure of selection for promotion as a result of the action of the special selection board.

(c)Each special selection board convened under this section shall—

(1)be composed in accordance with section 2107 and the members of the board shall be required to swear the oaths described in section 2109;

(2)consider the record of an applicable officer or former officer as that record, if corrected, would have appeared to the selection board that should have considered or did consider the officer or former officer prior to the consideration of the special selection board and that record shall be compared with a sampling of the records of—

(A)those officers of the same grade who were recommended for promotion by such prior selection board; and

(B)those officers of the same grade who were not recommended for promotion by such prior selection board; and

(3)submit to the Secretary a written report in a manner consistent with section 2117 and 2118.

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

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

(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 eligible for promotion or a former officer whose name was referred to the board for consideration, the Secretary may act under section 1552 of title 10 to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from the officer or former officer not being selected for promotion by the selection board that should have considered or did consider the officer or former officer prior to the consideration of the special selection board.

(e)The Secretary shall issue regulations regarding the process by which an officer or former officer may apply to have a matter considered by a special selection board convened under this section, including time limits related to such applications.

(f)No official or court of the United States shall have authority or jurisdiction over any claim based in any way on the failure of an officer or former officer to be selected for promotion by a selection board convened under section 2106, until—

(1)the claim has been referred to a special selection board convened under this section and acted upon by that board; or

(2)the claim has been rejected by the Secretary without consideration by a special selection board convened under this section.

(g)(1)A court of the United States may review—

(A)a decision of the Secretary not to convene a special selection board under this section to determine if the court finds that the decision of the Secretary was arbitrary or capricious, not based on substantial evidence, or otherwise contrary to law; and

(B)an action of a special selection board under this section to determine if the court finds that the action of the special selection board was contrary to law or involved material error of fact or material administrative error.

(2)If, with respect to a review under paragraph (1), a court makes a finding described in subparagraph (A) or (B) of that paragraph, the court shall remand the case to the Secretary and the Secretary shall provide the applicable officer or former officer consideration by a new special selection board convened under this section.

(h)The Secretary may designate a selection board convened under section 2106 as a special selection board convened under this section. A selection board so designated may function in the capacity of a selection board convened under section 2106 and a special selection board convened under this section.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2018—Pub. L. 115–282, § 112(b), renumbered section 263 of this title as this section. Subsec. (a)(1)(A). Pub. L. 115–282, § 123(b)(2), substituted “section 2106” for “section 251”. Subsec. (b)(1). Pub. L. 115–282, § 123(b)(2), substituted “section 2106” for “section 251” in introductory provisions. Subsec. (c)(1). Pub. L. 115–282, § 123(b)(2), substituted “section 2107” for “section 252” and “section 2109” for “section 254”. Subsec. (c)(3). Pub. L. 115–282, § 123(b)(2), substituted “section 2117 and 2118” for “section 260 and 261”. Subsec. (f). Pub. L. 115–282, § 123(b)(2), substituted “section 2106” for “section 251” in introductory provisions. Subsec. (h). Pub. L. 115–282, § 123(b)(2), substituted “section 2106” for “section 251” in two places.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Dec. 20, 2012, with provision for convening a special selection board for certain errors occurring on or after the date that is 1 year before Dec. 20, 2012, see section 208(e)(1) of Pub. L. 112–213, set out as an

Effective Date

of 2012 Amendment note under section 2118 of this title.

§2120 Special Selection Boards; Correction of Errors

Summary

Title 14, §2120

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata