10 U.S.C. § 14107 — Information furnished by the Secretary

Page 3721 TITLE 10—ARMED FORCES § 14107 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT This section, as amended by Pub. L. 109–364, applica- ble with respect to the proceedings of all selection boards convened under section 14101 of this title, in- cluding selection boards convened before Oct. 17, 2006, see section 547(c) of Pub. L. 109–364, set out as an Effec- tive Date note under section 613a 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. § 14105. Notice of convening of promotion board (a) REQUIRED NOTICE.—At least 30 days before a promotion board is convened under section 14101(a) of this title to consider officers in a grade and competitive category for promotion to the next higher grade, the Secretary con- cerned shall either (1) notify in writing the offi- cers eligible for consideration by the board for promotion regarding the convening of the board, or (2) issue a general written notice to the armed force concerned regarding the convening of the board. (b) CONTENT OF NOTICE.—A notice under sub- section (a) shall include the date on which the board is to convene and (except in the case of a vacancy promotion board) the name and date of rank of the junior officer, and of the senior offi- cer, in the promotion zone as of the date of the notice. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2925.) Statutory Notes and Related Subsidiaries 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. § 14106. Communication with board by officers under consideration Subject to regulations prescribed by the Sec- retary of the military department concerned, an officer eligible for consideration by a promotion board convened under section 14101(a) of this title who is in the promotion zone or above the promotion zone, or who is to be considered by a vacancy promotion board, may send a written communication to the board calling attention to any matter concerning the officer which the of- ficer considers important to the officer’s case. Any such communication shall be sent so as to arrive not later than 10 calendar days before the date on which the board convenes. The board shall give consideration to any timely commu- nication under this section. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2925; amended Pub. L. 109–163, div. A, title V, § 505(b), Jan. 6, 2006, 119 Stat. 3227; Pub. L. 115–91, div. A, title V, § 501(b), Dec. 12, 2017, 131 Stat. 1373.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 3362(f), 5900, and 8362(f) of this title, prior to repeal by Pub. L. 103–337, § 1629(a)(1), (b)(2), (c)(1). AMENDMENTS 2017—Pub. L. 115–91 substituted ‘‘10 calendar days’’ for ‘‘the day’’. 2006—Pub. L. 109–163 inserted ‘‘the day before’’ after ‘‘not later than’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2017 AMENDMENT Amendment by Pub. L. 115–91 applicable with respect to promotion selection boards convened on or after Dec. 12, 2017, see section 501(c) of Pub. L. 115–91, set out as a note under section 614 of this title. EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–163 effective Mar. 1, 2006, and applicable with respect to selection boards con- vened on or after that date, see section 505(c) of Pub. L. 109–163, set out as a note under section 614 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. § 14107. Information furnished by the Secretary concerned to promotion boards (a) INTEGRITY OF THE PROMOTION SELECTION BOARD PROCESS.—(1) The Secretary of Defense shall prescribe regulations governing informa- tion furnished to selection boards convened under section 14101(a) of this title. Those regula- tions shall apply uniformly among the military departments. Any regulations prescribed by the Secretary of a military department to supple- ment those regulations may not take effect without the approval of the Secretary of Defense in writing. (2) No information concerning a particular eli- gible officer may be furnished to a selection board except for the following: (A) Information that is in the officer’s offi- cial military personnel file and that is pro- vided to the selection board in accordance with the regulations prescribed by the Sec- retary of Defense pursuant to paragraph (1). (B) Other information that is determined by the Secretary of the military department con- cerned, after review by that Secretary in ac- cordance with standards and procedures set out in the regulations prescribed by the Sec- retary of Defense pursuant to paragraph (1), to be substantiated, relevant information that could reasonably and materially affect the de- liberations of the promotion board. (C) Subject to such limitations as may be prescribed in those regulations, information communicated to the board by the officer in accordance with this section, section 14106 of this title (including any comment on informa- tion referred to in subparagraph (A) regarding that officer), or other applicable law. (D) A factual summary of the information described in subparagraphs (A), (B), and (C) that, in accordance with the regulations pre- scribed pursuant to paragraph (1) is prepared by administrative personnel for the purpose of facilitating the work of the selection board. (3)(A) In the case of an eligible officer consid- ered for promotion to a grade above lieutenant Page 3722 TITLE 10—ARMED FORCES § 14107 colonel, or, in the case of the Navy, commander, any credible information of an adverse nature, including any substantiated adverse finding or conclusion from an officially documented inves- tigation or inquiry, shall be furnished to the se- lection board in accordance with standards and procedures set out in the regulations prescribed by the Secretary of Defense pursuant to para- graph (1). (B) The standards and procedures referred to in subparagraph (A) shall require the furnishing to the selection board, and to each individual member of the board, the information described in that subparagraph with regard to an officer in a grade specified in that subparagraph at each stage or phase of the selection board, concurrent with the screening, rating, assessment, evalua- tion, discussion, or other consideration by the board or member of the official military per- sonnel file of the officer, or of the officer. (C) With respect to the consideration of an of- ficer for promotion to a grade at or below major general or, in the Navy, rear admiral, the re- quirements in subparagraphs (A) and (B) may be met through the convening and actions of a spe- cial selection board with respect to the officer under section 14502a of this title. (4) Information provided to a promotion board in accordance with paragraphs (2) and (3) shall be made available to all members of the board and shall be made a part of the record of the board. Communication of such information shall be in a written form or in the form of an audio or video recording. If a communication is in the form of an audio or video recording, a written transcription of the recording shall also be made a part of the record of the promotion board. (5) Paragraphs (2), (3), and (4) do not apply to the furnishing of appropriate administrative processing information to the promotion board by an administrative staff designated to assist the board, but only to the extent that oral com- munications are necessary to facilitate the work of the board. (6) Information furnished to a promotion board that is described in subparagraph (B), (C), or (D) of paragraph (2), or in paragraph (3), may not be furnished to a later promotion board un- less— (A) the information has been properly placed in the official military personnel file of the of- ficer concerned; or (B) the information is provided to the later selection board in accordance with paragraph (2) or (3), as applicable. (7)(A) Before information described in para- graph (2)(B) or (3) regarding an eligible officer is furnished to a selection board, the Secretary of the military department concerned shall en- sure— (i) that such information is made available to such officer; and (ii) that the officer is afforded a reasonable opportunity to submit comments on that in- formation to the promotion board. (B) If an officer cannot be given access to the information referred to in subparagraph (A) be- cause of its classification status, the officer shall, to the maximum extent practicable, be furnished an appropriate summary of the infor- mation. (b) INFORMATION TO BE FURNISHED.—The Sec- retary of the military department concerned shall furnish to a promotion board convened under section 14101(a) of this title the following: (1) In the case of a mandatory promotion board, the maximum number (as determined in accordance with section 14307 of this title) of officers in each competitive category under consideration that the board is authorized to recommend for promotion to the next higher grade. (2) The name of each officer in each competi- tive category under consideration who is to be considered by the board for promotion. (3) The pertinent records (as determined by the Secretary) of each officer whose name is furnished to the board. (4) Information or guidelines relating to the needs of the armed force concerned for officers having particular skills, including (except in the case of a vacancy promotion board) guide- lines or information relating to either a min- imum number or a maximum number of offi- cers with particular skills within a competi- tive category. (5) Such other information or guidelines as the Secretary concerned may determine to be necessary to enable the board to perform its functions. (c) LIMITATION ON MODIFYING FURNISHED IN- FORMATION.—Information or guidelines furnished to a selection board under subsection (a) may not be modified, withdrawn, or supplemented after the board submits its report to the Sec- retary of the military department concerned pursuant to section 14109(a) of this title. How- ever, in the case of a report returned to a board pursuant to section 14110(a) of this title for fur- ther proceedings because of a determination by the Secretary of the military department con- cerned that the board acted contrary to law, regulation, or guidelines, the Secretary may modify, withdraw, or supplement such informa- tion or guidelines as part of a written expla- nation to the board as provided in that section. (d) OFFICERS IN HEALTH-PROFESSIONS COMPETI- TIVE CATEGORIES.—The Secretary of each mili- tary department, under uniform regulations pre- scribed by the Secretary of Defense, shall in- clude in guidelines furnished to a promotion board convened under section 14101(a) of this title that is considering officers in a health-pro- fessions competitive category for promotion to a grade below colonel or, in the case of officers of the Navy Reserve, captain, a direction that the board give consideration to an officer’s clinical proficiency and skill as a health professional to at least as great an extent as the board gives to the officer’s administrative and management skills. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2926; amended Pub. L. 109–163, div. A, title V, §§ 506(b), 515(b)(1)(QQ), Jan. 6, 2006, 119 Stat. 3227, 3234; Pub. L. 116–283, div. A, title V, § 505(d), Jan. 1, 2021, 134 Stat. 3573.) Page 3723 TITLE 10—ARMED FORCES § 14108 Editorial Notes PRIOR PROVISIONS Provisions similar to those in subsec. (b) of this sec- tion were contained in section 5895 of this title, prior to repeal by Pub. L. 103–337, § 1629(b)(2). AMENDMENTS 2021—Subsec. (a)(3)(A). Pub. L. 116–283, § 505(d)(2), which directed amendment of subpar. (A) by sub- stituting ‘‘lieutenant colonel, or, in the case of the Navy, commander’’ for ‘‘colonel, or, in the case of the Navy, captain’’, was executed by making the substi- tution for ‘‘colonel or, in the case of the Navy, captain’’ to reflect the probable intent of Congress. Pub. L. 116–283, § 505(d)(1), designated existing provi- sions of par. (3) as subpar. (A). Subsec. (a)(3)(B), (C). Pub. L. 116–283, § 505(d)(3), added subpars. (B) and (C). 2006—Subsec. (a)(3). Pub. L. 109–163, § 506(b)(1)(B), added par. (3). Former par. (3) redesignated (4). Subsec. (a)(4). Pub. L. 109–163, § 506(b)(1)(A), (2)(A), re- designated par. (3) as (4) and substituted ‘‘paragraphs (2) and (3)’’ for ‘‘paragraph (2)’’. Former par. (4) redesig- nated (5). Subsec. (a)(5). Pub. L. 109–163, § 506(b)(1)(A), (2)(B), re- designated par. (4) as (5) and substituted ‘‘, (3), and (4)’’ for ‘‘and (3)’’. Former par. (5) redesignated (6). Subsec. (a)(6). Pub. L. 109–163, § 506(b)(1)(A), (2)(C)(i), redesignated par. (5) as (6) and inserted ‘‘, or in para- graph (3),’’ after ‘‘paragraph (2)’’ in introductory provi- sions. Former par. (6) redesignated (7). Subsec. (a)(6)(B). Pub. L. 109–163, § 506(b)(2)(C)(ii), in- serted ‘‘or (3), as applicable’’ after ‘‘paragraph (2)’’. Subsec. (a)(7). Pub. L. 109–163, § 506(b)(1)(A), redesig- nated par. (6) as (7). Subsec. (a)(7)(A). Pub. L. 109–163, § 506(b)(2)(D), in- serted ‘‘or (3)’’ after ‘‘paragraph (2)(B)’’. Subsec. (d). Pub. L. 109–163, § 515(b)(1)(QQ), substituted ‘‘Navy Reserve’’ for ‘‘Naval Reserve’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Amendment by section 506(b) of Pub. L. 109–163 effec- tive Oct. 1, 2006, and applicable with respect to pro- motion selection boards convened on or after that date, see section 506(c) of Pub. L. 109–163, set out as a note under section 615 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. § 14108. Recommendations by promotion boards (a) RECOMMENDATION OF BEST QUALIFIED OFFI- CERS.—A promotion board convened under sec- tion 14101(a) of this title shall recommend for promotion to the next higher grade those offi- cers considered by the board whom the board considers best qualified for promotion within each competitive category considered by the board or, in the case of a vacancy promotion board, among those officers considered to fill a vacancy. In determining those officers who are best qualified for promotion, the board shall give due consideration to the needs of the armed force concerned for officers with particular skills (as noted in the guidelines or information furnished the board under section 14107 of this title). (b) ACTIONS REQUIRED.—A promotion board convened under section 14101(a) of this title may not recommend an officer for promotion un- less— (1) the officer receives the recommendation of a majority of the members of the board; (2) a majority of the members of the board finds that the officer is fully qualified for pro- motion; and (3) a majority of the members of the board, after consideration by all members of the board of any adverse information about the of- ficer that is provided to the board under sec- tion 14107 of this title, finds that the officer is among the officers best qualified for pro- motion to meet the needs of the armed force concerned consistent with the requirement of exemplary conduct set forth in section 7233, 8167, or 9233 of this title, as applicable. (c) BOARD RECOMMENDATION REQUIRED FOR PROMOTION.—Except as otherwise provided by law, an officer on the reserve active-status list may not be promoted to a higher grade under chapter 1405 of this title unless the officer is considered and recommended for promotion to that grade by a promotion board convened under section 14101(a) of this title (or by a special se- lection board convened under section 14502 of this title). (d) DISCLOSURE OF BOARD RECOMMENDATIONS.— The recommendations of a promotion board may be disclosed only in accordance with regulations prescribed by the Secretary of Defense. Those recommendations may not be disclosed to a per- son not a member of the board (or a member of the administrative staff designated by the Sec- retary concerned to assist the board) until the written report of the recommendations of the board, required by section 14109 of this title, is signed by each member of the board. (e) PROHIBITION OF COERCION AND UNAUTHOR- IZED INFLUENCE OF ACTIONS OF BOARD MEM- BERS.—The Secretary convening a promotion board under section 14101(a) of this title, and an officer or other official exercising authority over any member of a selection board, may not— (1) censure, reprimand, or admonish the se- lection board or any member of the board with respect to the recommendations of the board or the exercise of any lawful function within the authorized discretion of the board; or (2) attempt to coerce or, by any unauthor- ized means, influence any action of a pro- motion board or any member of a promotion board in the formulation of the board’s rec- ommendations. (f) HIGHER PLACEMENT OF OFFICERS OF PAR- TICULAR MERIT ON PROMOTION LIST.—(1) In se- lecting officers to be recommended for pro- motion, a promotion board may, when author- ized by the Secretary concerned, recommend that officers of particular merit, from among those officers selected for promotion, be placed higher on the promotion list established by the Secretary under section 14308(a) of this title. (2) A promotion board may make a rec- ommendation under paragraph (1) only if an offi- cer receives the recommendation of— (A) a majority of the members of the pro- motion board; or (B) an alternative requirement established by the Secretary concerned and furnished to the promotion board as part of the guidelines under section 14107 of this title.