10 U.S.C. § 628a — Special selection review boards

Page 614 TITLE 10—ARMED FORCES § 628a moted’’ and ‘‘that appointment’’ for ‘‘such promotion’’ and inserted at end ‘‘In the case of a person who is not on the active-duty list when appointed to the next higher grade, placement of that person on the active- duty list pursuant to the preceding sentence shall be only for purposes of determination of eligibility of that person for consideration for promotion by any subse- quent special selection board under this section.’’ Subsec. (e). Pub. L. 105–261, § 501(d), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: ‘‘The provisions of section 613 of this title apply to members of special selection boards convened under this section.’’ Subsecs. (f), (g). Pub. L. 105–261, § 501(e), added sub- secs. (f) and (g). 1992—Subsec. (b)(1). Pub. L. 102–484 substituted ‘‘sec- tion 573’’ for ‘‘section 558’’. 1991—Subsec. (a)(1). Pub. L. 102–190 substituted ‘‘sec- tion 573’’ for ‘‘section 558’’. 1984—Subsecs. (a)(1), (b)(1). Pub. L. 98–525 substituted ‘‘(composed in accordance with section 612 of this title or, in the case of a warrant officer, composed in accord- ance with section 558 of this title and regulations pre- scribed by the Secretary of the military department concerned)’’ for ‘‘(composed in accordance with section 612 of this title)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–364, div. A, title V, § 514(c), Oct. 17, 2006, 120 Stat. 2185, provided that: ‘‘The amendments made by this section [amending this section and section 14502 of this title] shall take effect on March 1, 2007, and shall apply with respect to selection boards convened on or after that date.’’ EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107–107, div. A, title V, § 503(c), Dec. 28, 2001, 115 Stat. 1084, provided that: ‘‘(1) Except as provided in paragraph (2), the amend- ments made by this section [enacting section 1558 of this title and amending this section] shall apply with respect to any proceeding pending on or after the date of the enactment of this Act [Dec. 28, 2001] without re- gard to whether a challenge to an action of a selection board of any of the Armed Forces being considered in the proceeding was initiated before, on, or after that date. ‘‘(2) The amendments made by this section shall not apply with respect to any action commenced in a court of the United States before the date of the enactment of this Act.’’ EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–190 effective Feb. 1, 1992, see section 1132 of Pub. L. 102–190, set out as a note under section 521 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. RATIFICATION OF CODIFIED PRACTICE Pub. L. 105–261, div. A, title V, § 501(f), Oct. 17, 1998, 112 Stat. 2002, provided that the consideration by a special selection board convened under this section before Oct. 17, 1998, of a person who, at the time of consideration, had been a retired officer or former officer of the Armed Forces (including a deceased retired or former officer) was ratified. Executive Documents DELEGATION OF FUNCTIONS Functions of President under subsec. (d)(1) to ap- prove, modify, or disapprove report of a selection board delegated to Secretary of Defense to perform, without approval, ratification, or other action by President, and with authority for Secretary to redelegate, see Ex. Ord. No. 12396, §§ 1(a), 3, Dec. 9, 1982, 47 F.R. 55897, 55898, set out as a note under section 301 of Title 3, The Presi- dent. § 628a. Special selection review boards (a) IN GENERAL.—(1)(A) If the Secretary of the military department concerned determines that a person recommended by a promotion board for promotion to a grade at or below the grade of major general or rear admiral in the Navy is the subject of credible information of an adverse na- ture, including any substantiated adverse find- ing or conclusion described in section 615(a)(3)(A) of this title, that was not furnished to the promotion board during its consideration of the person for promotion as otherwise re- quired by such section, the Secretary shall con- vene a special selection review board under this section to review the person and recommend whether the recommendation for promotion of the person should be sustained. (B) Nothing in this section shall be construed to prevent a Secretary concerned from deferring consideration of adverse information concerning an officer subject to this section until the next regularly scheduled promotion board applicable to such officer, in lieu of furnishing such adverse information to a special selection review board under this section. (2) If a person and the recommendation for promotion of the person is subject to review under this section by a special selection review board convened under this section, the name of the person— (A) shall not be disseminated or publicly re- leased on the list of officers recommended for promotion by the promotion board recom- mending the promotion of the person; and (B) shall not be forwarded for appointment or nomination to the Secretary of Defense, the President, or the Senate, as applicable. (b) CONVENING.—(1) Any special selection re- view board convened under this section shall be convened in accordance with the provisions of section 628(f) of this title. (2) Any special selection review board con- vened under this section may review such num- ber of persons, and recommendations for pro- motion of such persons, as the Secretary of the military department concerned shall specify in convening such special selection review board. (c) INFORMATION CONSIDERED.—(1) In reviewing a person and recommending whether the rec- ommendation for promotion of the person should be sustained under this section, a special selection review board convened under this sec- tion shall be furnished and consider the fol- lowing: (A) The record and information concerning the person furnished in accordance with sec- tion 615(a)(2) of this title to the promotion board that recommended the person for pro- motion. (B) Any credible information of an adverse nature on the person, including any substan- tiated adverse finding or conclusion from an officially documented investigation or inquiry described in section 615(a)(3)(A) of this title. Page 615 TITLE 10—ARMED FORCES § 628a (2) The furnishing of information to a special selection review board under paragraph (1)(B) shall be governed by the standards and proce- dures referred to in paragraph (3)(C) of section 615(a) of this title applicable to the furnishing of information described in paragraph (3)(A) of such section to selection boards in accordance with that section. (3)(A) Before information on a person de- scribed in paragraph (1)(B) is furnished to a spe- cial selection review board for purposes of this section, the Secretary of the military depart- ment concerned shall ensure that— (i) such information is made available to the person; and (ii) subject to subparagraphs (C) and (D), the person is afforded a reasonable opportunity to submit comments on such information to the special selection review board before its re- view of the person and the recommendation for promotion of the person under this section. (B) If information on a person described in paragraph (1)(B) is not made available to the person as otherwise required by subparagraph (A)(i) due to the classification status of such in- formation, the person shall, to the maximum ex- tent practicable, be furnished a summary of such information appropriate to the person’s au- thorization for access to classified information. (C)(i) An opportunity to submit comments on information is not required for a person under subparagraph (A)(ii) if— (I) such information was made available to the person in connection with the furnishing of such information under section 615(a) of this title to the promotion board that rec- ommended the promotion of the person sub- ject to review under this section; and (II) the person submitted comments on such information to that promotion board. (ii) The comments on information of a person described in clause (i)(II) shall be furnished to the special selection review board. (D) A person may waive either or both of the following: (i) The right to submit comments to a spe- cial selection review board under subpara- graph (A)(ii). (ii) The furnishing of comments to a special selection review board under subparagraph (C)(ii). (d) CONSIDERATION.—(1) In considering the record and information on a person under this section, the special selection review board shall compare such record and information with an appropriate sampling of the records of those of- ficers of the same competitive category who were recommended for promotion by the pro- motion board that recommended the person for promotion, and an appropriate sampling of the records of those officers who were considered by and not recommended for promotion by that promotion board. (2) Records and information shall be presented to a special selection review board for purposes of paragraph (1) in a manner that does not indi- cate or disclose the person or persons for whom the special selection review board was convened. (3) In considering whether the recommenda- tion for promotion of a person should be sus- tained under this section, a special selection re- view board shall, to the greatest extent prac- ticable, apply standards used by the promotion board that recommended the person for pro- motion. (4) The recommendation for promotion of a person may be sustained under this section only if the special selection review board determines that the person— (A) ranks in the upper half of an order of merit created by the special selection review board or ranks on an order of merit created by the special selection review board as better qualified for promotion than the sample offi- cer highest on the order of merit list who was considered by and not recommended for pro- motion by the promotion board concerned; and (B) is comparable in qualification for pro- motion to those sample officers who were rec- ommended for promotion by that promotion board. (5) A recommendation for promotion of a per- son may be sustained under this section only by a vote of a majority of the members of the spe- cial selection review board. (6) If a special selection review board does not sustain a recommendation for promotion of a person under this section, the person shall be considered to have failed of selection for pro- motion. (e) REPORTS.—(1) Each special selection review board convened under this section shall submit to the Secretary of the military department concerned a written report, signed by each mem- ber of the board, containing the name of each person whose recommendation for promotion it recommends for sustainment and certifying that the board has carefully considered the record and information of each person whose name was referred to it. (2) The provisions of sections 617(b) and 618 of this title apply to the report and proceedings of a special selection review board convened under this section in the same manner as they apply to the report and proceedings of a promotion board convened under section 611(a) of this title. How- ever, in the case of an officer on the Space Force officer list, the provisions of sections 618, 20215, and 20216 of this title apply to the report and proceedings of a special selection review board convened under this section in the same manner as they apply to the report and proceedings of a promotion board convened under section 20211 of this title. (f) APPOINTMENT OF PERSONS.—(1) If the report of a special selection review board convened under this section recommends the sustainment of the recommendation for promotion to the next higher grade of a person whose name was referred to it for review under this section, and the President approves the report, the person shall, as soon as practicable, be appointed to that grade in accordance with subsections (b) and (c) of section 624 of this title. However, if the report of a special selection review board convened under this section recommends the sustainment of the recommendation for pro- motion to the next higher grade of an officer on the Space Force officer list who was referred to it for review under this section, and the Presi- dent approves the report, the officer shall, as Page 616 TITLE 10—ARMED FORCES § 629 soon as practicable, be appointed to the grade in accordance with subsections (b) and (c) of sec- tion 20252 of this title. (2) A person who is appointed to the next high- er grade as described in paragraph (1) shall, upon that appointment, have the same date of rank, the same effective date for the pay and allow- ances of that grade, and the same position on the active-duty list as the person would have had pursuant to the original recommendation for promotion of the promotion board con- cerned. (g) REGULATIONS.—(1) The Secretary of De- fense shall prescribe regulations to carry out this section. Such regulations shall apply uni- formly across the military departments. (2) Any regulation prescribed by the Secretary of a military department to supplement the reg- ulations prescribed pursuant to paragraph (1) may not take effect without the approval of the Secretary of Defense, in writing. (h) PROMOTION BOARD DEFINED.—In this sec- tion, the term ‘‘promotion board’’ means a se- lection board convened by the Secretary of a military department under section 611(a) of this title. (Added Pub. L. 116–283, div. A, title V, § 505(a)(1), Jan. 1, 2021, 134 Stat. 3565; amended Pub. L. 117–263, div. A, title V, § 521, Dec. 23, 2022, 136 Stat. 2570; Pub. L. 118–31, div. A, title V, § 507(a), title XVII, § 1722(b)(5), Dec. 22, 2023, 137 Stat. 242, 668; Pub. L. 118–159, div. A, title V, § 506(a), title XVII, § 1701(a)(15), Dec. 23, 2024, 138 Stat. 1870, 2203.) Editorial Notes AMENDMENTS 2024—Subsec. (d)(4)(A). Pub. L. 118–159, § 506(a), in- serted ‘‘ranks in the upper half of an order of merit cre- ated by the special selection review board or’’ before ‘‘ranks on an order of merit created by the special se- lection review board as better qualified’’. Subsec. (e)(2). Pub. L. 118–159, § 1701(a)(15)(A), sub- stituted ‘‘apply to the report and proceedings of a pro- motion board convened under section 20211’’ for ‘‘apply to report and proceedings of a promotion board con- vened under section 20211’’. Subsec. (f). Pub. L. 118–159, § 1701(a)(15)(B), substituted ‘‘section 20252’’ for ‘‘section 20251’’. 2023—Subsec. (a)(1)(A). Pub. L. 118–31, § 1722(b)(5)(A), substituted ‘‘major general or’’ for ‘‘major general,’’ and struck out ‘‘, or an equivalent grade in the Space Force’’ after ‘‘in the Navy’’. Subsec. (a)(2)(B). Pub. L. 118–31, § 507(a), amended sub- par. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘shall not be forwarded to the Sec- retary of Defense, the President, or the Senate, as ap- plicable, or included on a promotion list under section 624(a) of this title.’’ Subsec. (e)(2). Pub. L. 118–31, § 1722(b)(5)(B), inserted at end: ‘‘However, in the case of an officer on the Space Force officer list, the provisions of sections 618, 20215, and 20216 of this title apply to the report and pro- ceedings of a special selection review board convened under this section in the same manner as they apply to report and proceedings of a promotion board convened under section 20211 of this title.’’ Subsec. (f)(1). Pub. L. 118–31, § 1722(b)(5)(C), inserted at end: ‘‘However, if the report of a special selection re- view board convened under this section recommends the sustainment of the recommendation for promotion to the next higher grade of an officer on the Space Force officer list who was referred to it for review under this section, and the President approves the re- port, the officer shall, as soon as practicable, be ap- pointed to the grade in accordance with subsections (b) and (c) of section 20251 of this title.’’ 2022—Subsec. (a)(1). Pub. L. 117–263, § 521(1), which di- rected amendment of par. (1) by inserting subpar. (A) designation before ‘‘If the Secretary concerned’’, was executed by inserting the designation before ‘‘If the Secretary of the military department concerned’’, to reflect the probable intent of Congress. Subsec. (a)(1)(B). Pub. L. 117–263, § 521(2), added sub- par. (B). § 629. Removal from a list of officers rec- ommended for promotion (a) REMOVAL BY PRESIDENT.—The President may remove the name of any officer from a list of officers recommended for promotion by a se- lection board convened under this chapter. (b) REMOVAL DUE TO SENATE NOT GIVING AD- VICE AND CONSENT.—If, after consideration of a list of officers approved for promotion by the President to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Sen- ate, the Senate does not give its advice and con- sent to the appointment of an officer whose name is on the list, that officer’s name shall be removed from the list. (c) REMOVAL AFTER 18 MONTHS.—(1) If an offi- cer whose name is on a list of officers approved for promotion under section 624(a) of this title to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Senate is not appointed to that grade under such section dur- ing the officer’s promotion eligibility period, the officer’s name shall be removed from the list unless as of the end of such period the Senate has given its advice and consent to the appoint- ment. (2) Before the end of the promotion eligibility period with respect to an officer under para- graph (1), the President may extend that period for purposes of paragraph (1) by an additional 12 months. (3) Paragraph (1) does not apply when the mili- tary department concerned is not able to obtain and provide to the Senate the information the Senate requires to give its advice and consent to the appointment concerned because that infor- mation is under the control of a department or agency of the Federal Government other than the Department of Defense. (4) In this subsection, the term ‘‘promotion eligibility period’’ means, with respect to an of- ficer whose name is on a list of officers approved for promotion under section 624(a) of this title to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Senate, the period beginning on the date on which the list is so approved and ending on the first day of the eighteenth month following the month during which the list is so approved. (d) ADMINISTRATIVE REMOVAL.—Under regula- tions prescribed by the Secretary concerned, if an officer on the active-duty list is discharged or dropped from the rolls or transferred to a re- tired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer’s name shall be administratively removed from the list