10 U.S.C. § 14501 — Failure of selection for promotion

Page 3742 TITLE 10—ARMED FORCES § 14501 2008—Pub. L. 110–181, div. A, title V, § 503(c)(3), title XVIII, § 1825(a)(2), Jan. 28, 2008, 122 Stat. 95, 502, sub- stituted ‘‘six years’’ for ‘‘five years’’ in item 14503 and ‘‘officers in grade of major general or rear admiral and above’’ for ‘‘major generals and rear admirals’’ in item 14511. 2006—Pub. L. 109–364, div. A, title V, § 503(f), Oct. 17, 2006, 120 Stat. 2178, struck out ‘‘reserve’’ before ‘‘briga- dier’’ in item 14510 and substituted ‘‘62’’ for ‘‘60’’ in items 14509 and 14510, ‘‘64’’ for ‘‘62’’ in item 14511, and ‘‘66’’ for ‘‘64’’ in item 14512. 2002—Pub. L. 107–314, div. A, title V, § 522(b), Dec. 2, 2002, 116 Stat. 2541, added item 14519. 2001—Pub. L. 107–107, div. A, title V, § 517(b)(2)(B), Dec. 28, 2001, 115 Stat. 1094, substituted ‘‘Failure of se- lection for promotion: transfer, retirement, or dis- charge’’ for ‘‘Separation for failure of selection of pro- motion’’ in item 14513. 1999—Pub. L. 106–65, div. A, title V, § 511(b), Oct. 5, 1999, 113 Stat. 592, added item 14518. 1996—Pub. L. 104–106, div. A, title XV, § 1501(b)(27), Feb. 10, 1996, 110 Stat. 497, inserted ‘‘reserve’’ after ‘‘Marine Corps and’’ in item 14506, ‘‘reserve’’ after ‘‘Re- moval from the’’ in item 14507, and ‘‘in grades’’ after ‘‘reserve officers’’ in item 14509. § 14501. Failure of selection for promotion (a) OFFICERS BELOW THE GRADE OF COLONEL OR NAVY CAPTAIN.—An officer on the reserve active- status list in a grade below the grade of colonel or, in the case of an officer in the Navy Reserve, captain who is in or above the promotion zone established for that officer’s grade and competi- tive category and who (1) is considered but not recommended for promotion (other than by a va- cancy promotion board), or (2) declines to accept a promotion for which selected (other than by a vacancy promotion board), shall be considered to have failed of selection for promotion. (b) OFFICERS TWICE FAILED OF SELECTION.—An officer shall be considered for all purposes to have twice failed of selection for promotion if any of the following applies: (1) The officer is considered but not rec- ommended for promotion a second time by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502(a) of this title. (2) The officer declines to accept a pro- motion for which recommended by a manda- tory promotion board convened under section 14101(a) or a special selection board convened under section 14502(a) or 14502(b) of this title after previously failing of selection or after the officer’s name was removed from the re- port of a selection board under section 14111(b) or from a promotion list under section 14310 of this title after recommendation for promotion by an earlier selection board described in sub- section (a). (3) The officer’s name has been removed from the report of a selection board under sec- tion 14111(b) or from a promotion list under section 14310 of this title after recommenda- tion by a mandatory promotion board con- vened under section 14101(a) or by a special se- lection board convened under section 14502(a) or 14502(b) of this title and— (A) the officer is not recommended for pro- motion by the next mandatory promotion board convened under section 14101(a) or spe- cial selection board convened under section 14502(a) of this title for that officer’s grade and competitive category; or (B) the officer’s name is again removed from the report of a selection board under section 14111(b) or from a promotion list under section 14310 of this title. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2946; amended Pub. L. 104–106, div. A, title XV, § 1501(b)(28), Feb. 10, 1996, 110 Stat. 498; Pub. L. 109–163, div. A, title V, § 515(b)(1)(TT), Jan. 6, 2006, 119 Stat. 3234.) Editorial Notes AMENDMENTS 2006—Subsec. (a). Pub. L. 109–163 substituted ‘‘Navy Reserve’’ for ‘‘Naval Reserve’’. 1996—Subsec. (a). Pub. L. 104–106 inserted heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–106 effective as if included in the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as enacted on Oct. 5, 1994, see section 1501(f)(3) of Pub. L. 104–106, set out as a note under section 113 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. CONTINUATION ON RESERVE ACTIVE-STATUS LIST OF CERTAIN RESERVE COLONELS OF ARMY AND AIR FORCE Pub. L. 103–337, div. A, title XVI, § 1681, Oct. 5, 1994, 108 Stat. 3021, provided that: ‘‘(a) CONTINUATION UNDER OLD LAW.—Except as pro- vided in subsection (b), a reserve officer of the Army or the Air Force who, on the effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title]— ‘‘(1) is subject to placement on the reserve active- status list of the Army or the Air Force; and ‘‘(2)(A) holds the reserve grade of colonel, (B) is on a list of officers recommended for promotion to the reserve grade of colonel, or (C) has been nominated by the President for appointment in the reserve grade of colonel, shall continue to be subject to mandatory transfer to the Retired Reserve or discharge from the officer’s re- serve appointment under section 3851 or 8851 of title 10, United States Code, as in effect on the day before the effective date of this title. ‘‘(b) EXEMPTION.—This section does not apply to an officer who is— ‘‘(1) sooner transferred from an active status or dis- charged under some other provision of law; ‘‘(2) promoted to a higher grade, unless the officer was on a list of officers recommended for promotion to the reserve grade of colonel before the effective date of this title; or ‘‘(3) continued on the reserve active-status list under section 14701 of title 10, United States Code, as added by this title.’’ MANDATORY SEPARATION FOR AGE FOR CERTAIN RESERVE OFFICERS OF NAVY AND MARINE CORPS Pub. L. 103–337, div. A, title XVI, § 1690, Oct. 5, 1994, 108 Stat. 3025, provided that: ‘‘(a) SAVINGS PROVISIONS FOR REQUIRED SEPARATION AGE.—A reserve officer of the Navy or the Marine Corps— ‘‘(1) who— ‘‘(A) on the effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title] is in an active status, and Page 3743 TITLE 10—ARMED FORCES § 14502 ‘‘(B) on the day before the effective date of this title was an officer described in section 6389(e) [now 8373(e)], [former] 6397(a), [former] 6403(a), or [former] 6403(b) of title 10, United States Code; and ‘‘(2) who, on or after the effective date of this title is subject to elimination from an active status under any provision of such title, is entitled to be treated as that officer would have been treated under [former] section 6397 or 6403 as applica- ble, as in effect on the day before the effective date of this title, if that treatment would result in the date for the officer’s separation from an active status being a later date than the date established under the law in ef- fect on or after the effective date of this title. ‘‘(b) SAVINGS PROVISIONS FOR MANDATORY SEPARATION FOR AGE.—An officer who was initially appointed in the Naval Reserve [now Navy Reserve] or the Marine Corps Reserve before January 1, 1953, and who cannot com- plete 20 years of service computed under section 12732 of this title before he becomes 62 years of age, but can complete this service by the time he becomes 64 years of age, may be retained in an active status not later than the date he becomes 64 years of age. ‘‘(c) An officer who was initially appointed in the Naval Reserve [now Navy Reserve] or the Marine Corps Reserve before the effective date of this title, and who cannot complete 20 years of service computed under section 12732 of this title before he becomes 60 years of age, but can complete this service by the time he be- comes 62 years of age, may be retained in an active sta- tus not later than the date he becomes 62 years of age.’’ § 14502. Special selection boards: correction of errors (a) OFFICERS NOT CONSIDERED BECAUSE OF AD- MINISTRATIVE ERROR.—(1) In the case of an offi- cer 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 se- lection 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 ap- pointed and composed in accordance with sec- tion 14102 of this title and shall include the rep- resentation of competitive categories required by that section. The members of a board con- vened 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 of- ficer. That record shall be compared with a sam- pling of the records of those officers of the same grade and competitive category who were rec- ommended 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 con- vened under section 14101(a) of this title but was not selected, the Secretary of the military de- partment concerned may, under regulations pre- scribed 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 of- ficer was contrary to law in a matter material to the decision of the board or involved mate- rial 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 (in- cluding the representation of competitive cat- egories required by that section), and the mem- bers 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 com- petitive 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 lieu- tenant colonel or commander or below whose name was referred to it for consideration, the of- ficer 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 con- vened 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 rec- ommendation for promotion by a special selec-