10 U.S.C. § 14502 — Special selection boards: correction of errors

submitted 32 years ago by Pub. L. 103-337 to r/title-10-ARMED-FORCES · 1,417 words · no verdicts yet

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This law creates special selection boards to fix mistakes in officer promotion decisions. One kind reviews officers who were skipped by mistake; another reviews officers who were considered but treated unfairly. These boards can put an officer back on a promotion list, and courts have limited power to intervene unless a special board has already ruled.

(a) Officers Not Considered Because of Administrative Error — (1) If the Secretary of a military department decides that an officer or former officer wasn't considered for promotion by a mandatory board, even though eligible, because of an administrative error, the Secretary must convene a special selection board to decide if that officer should be recommended for promotion. This board follows the same appointment, makeup, and competitive-category rules, and the same oath, as a regular promotion board. (2) The special board reviews the officer's record as it would have looked to the board that should have considered it, comparing it against a sample of records from officers of the same grade and category who were and weren't recommended by that original board. (3) If the special board doesn't recommend an officer below colonel (or, in the Navy, below captain), that officer is treated as having failed of selection. (b) Officers Considered But Not Selected; Material Error — (1) If an officer was eligible, was considered by a mandatory board, but wasn't selected, the Secretary may convene a special selection board if the Secretary decides either (A) the original board's action broke the law in a way that mattered, or involved a material factual or administrative error, or (B) the original board didn't have material information in front of it. (2) This board follows the same appointment, makeup, and oath rules as a regular board. (3) It reviews the officer's corrected record, compared against a sample of recommended and non-recommended officers from the same grade and category. (4) If the special board doesn't recommend an officer at lieutenant colonel or commander or below, that officer is treated as having failed selection through the original board's action — but doesn't get an extra failure counted from the special board itself. (c) Report — Every special selection board must give the Secretary a signed written report naming every officer it recommends for promotion, and certifying it carefully considered each officer's record. (d) Applicable Provisions — Sections 14104, 14109, 14110, and 14111 apply to a special selection board's report and proceedings the same way they apply to a regular promotion board's. (e) Appointment of Officers Recommended for Promotion — (1) An officer placed on a promotion list because a special board recommended them must be appointed to the higher grade as soon as practical, following the same laws and policies that would have applied if the right board had recommended them the first time. (2) That officer's date of rank, pay-and-allowances start date, and place on the reserve active-status list are set as if the original board had recommended the promotion. (3) If the President approves a special board's report recommending promotion for someone not currently eligible, or a former officer, the Secretary may use section 1552 to fix that person's military record to correct the error or remove the unfairness from not being selected earlier. (f) Time Limits for Consideration — The Secretary of Defense may set rules for when a special board's review depends on the officer applying for it, and deadlines for making that application. (g) Limitation of Other Jurisdiction — No U.S. official or court has power over (1) a claim based on an officer's failure to be selected for promotion, unless the claim has first either been sent to a special selection board and acted on, or been rejected by the Secretary without going to a board; or (2) the power to grant relief on such a claim, unless a special selection board has actually recommended the officer for promotion. (h) Judicial Review — (1) A court may review the Secretary's decision not to convene a special selection board under (a)(1), (b)(1), or (e)(3). If the court finds that decision arbitrary, capricious, unsupported by substantial evidence, or otherwise unlawful, it must send the case back to the Secretary to arrange a special board review. (2) If a court finds a special board's own action was unlawful or involved material error, it must send the case back for a new special board to reconsider. (i) Designation of Boards — The Secretary of a military department may name a regular promotion board as also being a special selection board under this section. A board named this way can act in both roles.

the actual law source: uscode.house.gov ↗public domain

(a)Officers Not Considered Because of Administrative Error.—

(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)Officers Considered But Not Selected; Material Error.—

(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)Report.—

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)Applicable Provisions.—

The provisions of sections 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)Appointment of Officers Recommended for Promotion.—

(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)Time Limits for Consideration.—

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)Limitation of Other Jurisdiction.—

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)Judicial Review.—

(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)Designation of Boards.—

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.

Source credit: (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2947; amended Pub. L. 107–107, div. A, title V, § 505(c)(3)(B), Dec. 28, 2001, 115 Stat. 1088; Pub. L. 109–364, div. A, title V, § 514(b), Oct. 17, 2006, 120 Stat. 2185; Pub. L. 114–92, div. A, title V, §§ 502(c)(2), 512, Nov. 25, 2015, 129 Stat. 807, 809.)

history & why it existsrecord from the source credit

1994Enacted · Pub. L. 103-337 · 108 Stat. 2947
2001Amended · Pub. L. 107-107 · 115 Stat. 1088
2006Amended · Pub. L. 109-364 · 120 Stat. 2185
2015Amended · Pub. L. 114-92 · 129 Stat. 807, 809

A history note hasn’t been published yet. The record shows enactment by Pub. L. 103-337 on 1994-10-05.

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