10 U.S.C. § 612 — Composition of selection boards

Page 590 TITLE 10—ARMED FORCES § 612 ‘‘OFFICERS ON ACTIVE DUTY IN GRADE ABOVE GENERAL ‘‘SEC. 632. Section 1251 of title 10, United States Code, as added by this Act, relating to mandatory retirement for age, shall not apply to any officer who on the effec- tive date of this Act [Sept. 15, 1981] was on active duty in a grade above general. ‘‘DEFINITIONS ‘‘SEC. 633. For the purposes of this title: ‘‘(1) The term ‘officer’ does not include warrant of- ficers. ‘‘(2) The term ‘active-duty list’ means the active- duty list established by the Secretary of the military department concerned pursuant to section 620 of title 10, United States Code, as added by this Act. ‘‘SAVINGS PROVISION FOR RETIRED GRADE OF CERTAIN RESERVE OFFICERS ‘‘SEC. 634. Unless entitled to a higher grade under any other provision of law, a member of the Army or Air Force who is a reserve officer and who— ‘‘(1) is on active duty on September 14, 1981; and ‘‘(2) after such date retires under section 3911 or 8911 [now 7311 or 9311] of title 10, United States Code, is entitled to retire in the reserve grade which he held or to which he had been selected for promotion on Sep- tember 14, 1981. ‘‘SAVINGS PROVISION FOR ORIGINAL APPOINTMENT IN CERTAIN GRADES UNDER EXISTING REGULATIONS ‘‘SEC. 635. Any person who before September 15, 1981— ‘‘(1) was selected for participation in a postbaccalaureate educational program leading to an appointment as a commissioned officer or had com- pleted a postbaccalaureate program and was selected for appointment as a commissioned officer of the Army, Navy, Air Force, or Marine Corps; ‘‘(2) under regulations of the Secretary of the mili- tary department concerned in effect on December 12, 1980, would have been appointed and ordered to active duty in a grade specified or determined in accordance with such regulations; and ‘‘(3) had not been so appointed and ordered to active duty, may be appointed and ordered to active duty in such grade with a date of rank and position on the active- duty list junior to that of all other officers of the same grade and competitive category serving on active duty. ‘‘RETENTION IN GRADE OF CERTAIN RESERVE OFFICERS ‘‘SEC. 636. A reserve officer of the Army, Navy, Air Force, or Marine Corps who on September 14, 1981— ‘‘(1) is serving on active duty (A) under section 10(b)(2) of the Military Selective Service Act (50 U.S.C. App. 460(b)(2)) [now 50 U.S.C. 3809(b)(2)] for the administration of the Selective Service System, or (B) under section 708 of title 32; and ‘‘(2) is serving in a temporary grade or is selected for promotion to a temporary grade, may continue to serve in or may be promoted to and serve in such grade until promoted to a higher grade, separated, or retired. ‘‘SAVINGS PROVISION REGARDING DISCHARGE OF REGULAR OFFICERS ‘‘SEC. 637. An officer of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps who on September 14, 1981, was serving on active duty may not be discharged under section 630(1)(A) of title 10, United States Code, as added by this Act, on or after the day on which that officer completes three years of continuous service as a regular commissioned officer. ‘‘REPAYMENT OF READJUSTMENT AND SEVERANCE PAY ‘‘SEC. 638. Notwithstanding section 1174(h) of title 10, United States Code, as added by this Act, a person who received readjustment or severance pay before Sep- tember 15, 1981, and who, on or after September 15, 1981, becomes entitled to retired or retainer pay under any provision of title 10 or title 14, United States Code, shall be required to repay that readjustment pay or severance pay in accordance with the laws in effect on September 14, 1981. ‘‘SAVINGS PROVISION FOR PROMOTION CONSIDERATION OF CERTAIN RETIRED OFFICERS ‘‘SEC. 639. Notwithstanding sections 619, 620, and 641(4) of title 10, United States Code, a retired officer serving on active duty on the date of the enactment of this section [Oct. 19, 1984] who on September 14, 1981, was on active duty as a retired officer recalled to ac- tive duty and who— ‘‘(1) was eligible for consideration for promotion on that date; and ‘‘(2) has served continuously on active duty since that date, may be considered for promotion (under regulations prescribed by the Secretary of the military department concerned) by a selection board that convenes after the date of the enactment of this section as if he had been placed on the active-duty list pursuant to section 621 of this Act.’’ [In determining retired grade of certain commis- sioned officers of the Armed Forces who retire after Jan. 1, 2021, any reference to section 1370 of title 10 in such determination with respect to such officers deemed to be a reference to section 1370a of title 10, see section 508(c) of Pub. L. 116–283, set out as a note under section 1370 of this title.] § 612. Composition of selection boards (a)(1) Members of selection boards shall be ap- pointed by the Secretary of the military depart- ment concerned in accordance with this section. A selection board shall consist of five or more officers of the same armed force as the officers under consideration by the board. Each member of a selection board (except as provided in para- graphs (2), (3), and (4)) shall be an officer on the active-duty list. Each member of a selection board must be serving in a grade higher than the grade of the officers under consideration by the board, except that no member of a board may be serving in a grade below major or lieutenant commander. The members of a selection board shall represent the diverse population of the armed force concerned to the extent practicable. (2)(A) Except as provided in subparagraph (B), a selection board shall include at least one offi- cer from each competitive category of officers to be considered by the board. (B) A selection board need not include an offi- cer from a competitive category to be consid- ered by the board when there are no officers of that competitive category on the active-duty list in a grade higher than the grade of the offi- cers to be considered by the board and eligible to serve on the board. However, in such a case the Secretary of the military department con- cerned, in his discretion, may appoint as a mem- ber of the board an officer of that competitive category who is not on the active-duty list from among officers of the same armed force as the officers under consideration by the board who hold a higher grade than the grade of the offi- cers under consideration and who are retired of- ficers, reserve officers serving on active duty but not on the active-duty list, or members of the Ready Reserve. (3) When reserve officers of an armed force are to be considered by a selection board, the mem- bership of the board shall include at least one Page 591 TITLE 10—ARMED FORCES § 612 reserve officer of that armed force on active duty (whether or not on the active-duty list). The actual number of reserve officers shall be determined by the Secretary of the military de- partment concerned, in the Secretary’s discre- tion. Notwithstanding the first sentence of this paragraph, in the case of a board which is con- sidering officers in the grade of colonel or briga- dier general or, in the case of officers of the Navy, captain or rear admiral (lower half), no reserve officer need be included if there are no reserve officers of that armed force on active duty in the next higher grade who are eligible to serve on the board. (4) Except as provided in paragraphs (2) and (3), if qualified officers on the active-duty list are not available in sufficient number to com- prise a selection board, the Secretary of the military department concerned shall complete the membership of the board by appointing as members of the board officers who are members of the same armed force and hold a grade higher than the grade of the officers under consider- ation by the board and who are retired officers, reserve officers serving on active duty but not on the active-duty list, or members of the Ready Reserve. (5) A retired general or flag officer who is on active duty for the purpose of serving on a selec- tion board shall not, while so serving, be count- ed against any limitation on the number of gen- eral and flag officers who may be on active duty. (b) No officer may be a member of two succes- sive selection boards convened under section 611(a) of this title for the consideration of offi- cers of the same competitive category and grade. (c)(1) Each selection board convened under sec- tion 611(a) of this title that will consider an offi- cer described in paragraph (2) shall include at least one officer designated by the Chairman of the Joint Chiefs of Staff who is a joint qualified officer. (2) Paragraph (1) applies with respect to an of- ficer who— (A) is serving on, or has served on, the Joint Staff; or (B) is a joint qualified officer. (3) The Secretary of Defense may waive the re- quirement in paragraph (1) in the case of— (A) any selection board of the Marine Corps or the Space Force; or (B) any selection board that is considering officers in specialties identified in paragraph (2) or (3) of section 619a(b) of this title. (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, 94 Stat. 2851; amended Pub. L. 97–22, § 4(a), July 10, 1981, 95 Stat. 125; Pub. L. 97–86, title IV, § 405(b)(1), Dec. 1, 1981, 95 Stat. 1105; Pub. L. 99–145, title V, § 514(b)(1), Nov. 8, 1985, 99 Stat. 628; Pub. L. 99–433, title IV, § 402(a), Oct. 1, 1986, 100 Stat. 1030; Pub. L. 106–398, § 1 [[div. A], title V, § 504(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–101; Pub. L. 111–383, div. A, title V, § 522(a), Jan. 7, 2011, 124 Stat. 4214; Pub. L. 116–283, div. A, title V, § 503(a)(1), Jan. 1, 2021, 134 Stat. 3564; Pub. L. 118–159, div. A, title V, § 521(d)(2), Dec. 23, 2024, 138 Stat. 1881.) Editorial Notes AMENDMENTS 2024—Subsec. (c)(3)(A). Pub. L. 118–159 inserted ‘‘or the Space Force’’ after ‘‘of the Marine Corps’’. 2021—Subsec. (a)(1). Pub. L. 116–283 inserted at end ‘‘The members of a selection board shall represent the diverse population of the armed force concerned to the extent practicable.’’ 2011—Subsec. (c). Pub. L. 111–383 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘Each selection board convened under section 611(a) of this title that will consider officers who are serving in, or have served in, joint duty assignments shall include at least one officer designated by the Chairman of the Joint Chiefs of Staff who is currently serving in a joint duty assignment. The Secretary of Defense may waive the preceding sentence in the case of any selection board of the Marine Corps.’’ 2000—Subsec. (a)(1). Pub. L. 106–398, § 1 [[div. A], title V, § 504(a)(1)], struck out ‘‘who are on the active-duty list’’ after ‘‘five or more officers’’ in second sentence and inserted after second sentence ‘‘Each member of a selection board (except as provided in paragraphs (2), (3), and (4)) shall be an officer on the active-duty list.’’ Subsec. (a)(3). Pub. L. 106–398, § 1 [[div. A], title V, § 504(a)(2)], substituted ‘‘of that armed force on active duty (whether or not on the active-duty list). The ac- tual number of reserve officers shall be’’ for ‘‘of that armed force, with the exact number of reserve officers to be’’ and ‘‘the Secretary’s discretion. Notwith- standing the first sentence of this paragraph,’’ for ‘‘his discretion, except that’’. 1986—Subsec. (c). Pub. L. 99–433 added subsec. (c). 1985—Subsec. (a)(3). Pub. L. 99–145 substituted ‘‘rear admiral (lower half)’’ for ‘‘commodore’’. 1981—Subsec. (a)(2). Pub. L. 97–22, § 4(a)(1), designated existing provisions as subpar. (A), substituted ‘‘Except as provided in subparagraph (B), a selection board’’ for ‘‘A selection board’’, and added subpar. (B). Subsec. (a)(3). Pub. L. 97–86 substituted ‘‘commodore’’ for ‘‘commodore admiral’’. Pub. L. 97–22, § 4(a)(2), inserted ‘‘, with the exact number of reserve officers to be determined by the Sec- retary of the military department concerned in his dis- cretion’’ after ‘‘at least one reserve officer of that armed force’’ and inserted ‘‘who are eligible to serve on the board’’ after ‘‘the next higher grade’’. Subsec. (a)(4). Pub. L. 97–22, § 4(a)(3), substituted ‘‘Ex- cept as provided in paragraphs (2) and (3)’’ for ‘‘Except as provided in paragraph (3)’’ and ‘‘officers who are members of the same armed force and hold a grade higher than the grade of the officers under consider- ation by the board and who are retired officers, reserve officers serving on active duty but not on the active- duty list, or members of the Ready Reserve’’ for ‘‘re- tired officers of the same armed force who hold a re- tired grade higher than the grade of the officers under consideration by the board’’ and designated as par. (5) provisions that retired general or flag officers on active duty for the purpose of serving on a selection board not be counted against any limitation on the number of general and flag officers who may be on active duty. Subsec. (a)(5). Pub. L. 97–22, § 4(a)(3), added par. (5) consisting of provisions, formerly contained in par. (4). Subsec. (b). Pub. L. 97–22, § 4(a)(4), inserted ‘‘convened under section 611(a) of this title’’ after ‘‘selection boards’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–398, § 1 [[div. A], title V, § 504(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–102, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply to any selection board convened under section 611(a) of title 10, United States Code, on or after August 1, 1981.’’ EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–433, title IV, § 406(f), Oct. 1, 1986, 100 Stat. 1034, provided that: ‘‘The amendments made by section Page 592 TITLE 10—ARMED FORCES § 613 402 [amending this section and sections 615 and 618 of this title] shall take effect with respect to selection boards convened under section 611(a) of title 10, United States Code, after the end of the 120-day period begin- ning on the date of the enactment of this Act [Oct. 1, 1986].’’ EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–86 effective Sept. 15, 1981, see section 405(f) of Pub. L. 97–86, set out as a note under section 101 of this title. EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. § 613. Oath of members of selection boards Each member of a selection board shall swear that he will perform his duties as a member of the board without prejudice or partiality and having in view both the special fitness of offi- cers and the efficiency of his armed force. (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, 94 Stat. 2851.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. § 613a. Nondisclosure of board proceedings (a) PROHIBITION ON DISCLOSURE.—The pro- ceedings of a selection board convened under section 573, 611, 628, or 20211 of this title may not be disclosed to any person not a member of the board, except as authorized or required to proc- ess the report of the board. This prohibition is a statutory exemption from disclosure, as de- scribed in section 552(b)(3) of title 5. (b) PROHIBITED USES OF BOARD DISCUSSIONS, DELIBERATIONS, NOTES, AND RECORDS.—The dis- cussions and deliberations of a selection board described in subsection (a) and any written or documentary record of such discussions and de- liberations— (1) are immune from legal process; (2) may not be admitted as evidence; and (3) may not be used for any purpose in any action, suit, or judicial or administrative pro- ceeding without the consent of the Secretary of the military department concerned. (c) APPLICABILITY.—This section applies to all selection boards convened under section 573, 611, 628, or 20211 of this title, regardless of the date on which the board was convened. (Added Pub. L. 109–364, div. A, title V, § 547(a)(1), Oct. 17, 2006, 120 Stat. 2215; amended Pub. L. 111–383, div. A, title V, § 503(a), Jan. 7, 2011, 124 Stat. 4207; Pub. L. 118–31, div. A, title XVII, § 1722(b)(1), Dec. 22, 2023, 137 Stat. 668.) Editorial Notes AMENDMENTS 2023—Subsecs. (a), (c). Pub. L. 118–31 substituted ‘‘573, 611, 628, or 20211’’ for ‘‘573, 611, or 628’’. 2011—Subsec. (a). Pub. L. 111–383, § 503(a)(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: ‘‘The proceedings of a selection board convened under section 611 this title may not be disclosed to any person not a member of the board.’’ Subsec. (b). Pub. L. 111–383, § 503(a)(2), substituted ‘‘Notes, and Records’’ for ‘‘and Records’’ in heading. Subsec. (c). Pub. L. 111–383, § 503(a)(3), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 109–364, div. A, title V, § 547(c), Oct. 17, 2006, 120 Stat. 2216, provided that: ‘‘Section 613a of title 10, United States Code, as added by subsection (a), shall apply with respect to the proceedings of all selection boards convened under section 611 of that title, includ- ing selection boards convened before the date of the en- actment of this Act [Oct. 17, 2006]. Section 14104 of such title, as amended by subsection (b), shall apply with re- spect to the proceedings of all selection boards con- vened under section 14101 of that title, including selec- tion boards convened before the date of the enactment of this Act.’’ § 614. Notice of convening of selection boards (a) At least 30 days before a selection board is convened under section 611(a) of this title to rec- ommend officers in a grade for promotion to the next higher grade, the Secretary concerned (1) shall notify in writing the officers eligible for consideration for promotion of the date on which the board is to convene and the name and date of rank of the junior officer, and of the sen- ior officer, in the promotion zone as of the date of the notification, or (2) shall issue a general written notice to the armed force concerned re- garding the convening of the board which shall include the convening date of the board and the name and date of rank of the junior officer, and of the senior officer, in the promotion zone as of the date of the notification. (b) An officer eligible for consideration by a selection board convened under section 611(a) of this title may send a written communication to the board, to arrive not later than 10 calendar days before the date the board convenes, calling attention to any matter concerning himself that the officer considers important to his case. The selection board shall give consideration to any timely communication under this subsection. (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, 94 Stat. 2852; amended Pub. L. 97–22, § 4(b), July 10, 1981, 95 Stat. 126; Pub. L. 102–190, div. A, title V, § 504(a)(2)(A), Dec. 5, 1991, 105 Stat. 1357; Pub. L. 109–163, div. A, title V, § 505(a), Jan. 6, 2006, 119 Stat. 3227; Pub. L. 115–91, div. A, title V, § 501(a), Dec. 12, 2017, 131 Stat. 1373.) Editorial Notes AMENDMENTS 2017—Subsec. (b). Pub. L. 115–91 substituted ‘‘10 cal- endar days before’’ for ‘‘the day before’’ in first sen- tence. 2006—Subsec. (b). Pub. L. 109–163 inserted ‘‘the day be- fore’’ after ‘‘not later than’’ in first sentence. 1991—Pub. L. 102–190 struck out ‘‘; communications with boards’’ after ‘‘selection boards’’ in section catch- line. 1981—Subsec. (a). Pub. L. 97–22 substituted ‘‘which shall include the convening date of the board’’ for