Discharge of officers with less than six years of commissioned service or found not qualified for promotion to first lieutenant or lieutenant (junior grade).
Effect of failure of selection for promotion: reserve first lieutenants of the Army, Air Force, and Marine Corps and reserve lieutenants (junior grade) of the Navy.
Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy.
Effect of failure of selection for promotion: reserve majors of the Army, Air Force, and Marine Corps and reserve lieutenant commanders of the Navy.
Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy.
Removal from the reserve active-status list for years of service: reserve general and flag officers.Separation at age 62: reserve officers in grades below brigadier general or rear admiral (lower half).
Separation at age 62: brigadier generals and rear admirals (lower half). Separation at age 64: officers in grade of major general or rear admiral and above. Separation at age 66: officers holding certain offices. Failure of selection for promotion: transfer, retirement, or discharge. Discharge or retirement for years of service or after selection for early removal. Discharge or retirement for age. Separation to be considered involuntary. Entitlement of officers discharged under this chapter to separation pay. Continuation of officers to complete disciplinary action. Deferment of retirement or separation for medical reasons.div. A, title V, §503(c)(3), title XVIII, §1825(a)(2), Jan. 28, 2008, 122 Stat. 95 , 502, substituted "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.
div. A, title V, §503(f), Oct. 17, 2006, 120 Stat. 2178 , struck out "reserve" before "brigadier" 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.
div. A, title V, §517(b)(2)(B), Dec. 28, 2001, 115 Stat. 1094 , substituted "Failure of selection for promotion: transfer, retirement, or discharge" for "Separation for failure of selection of promotion" in item 14513.
div. A, title XV, §1501(b)(27), Feb. 10, 1996, 110 Stat. 497 , inserted "reserve" after "Marine Corps and" in item 14506, "reserve" after "Removal from the" in item 14507, and "in grades" after "reserve officers" in item 14509.
CHAPTER 1407 -FAILURE OF SELECTION FOR PROMOTION AND INVOLUNTARY SEPARATION!@!Sec. 14501 -->
(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 competitive category and who (1) is considered but not recommended for promotion (other than by a vacancy 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 recommended 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 promotion for which recommended by a mandatory 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 report 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 subsection (a).
(3) The officer's name has been removed from the report of a selection board under section 14111(b) or from a promotion list under section 14310 of this title after recommendation by a mandatory promotion board convened under section 14101(a) or by a special selection board convened under section 14502(a) or 14502(b) of this title and—
(A) the officer is not recommended for promotion by the next mandatory promotion board convened under section 14101(a) or special 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 .
2006—Subsec. (a).
substituted "Navy Reserve" for "Naval Reserve".
1996—Subsec. (a).
effective as if included in the Reserve Officer Personnel Management Act, title XVI of
as enacted on Oct. 5, 1994, see section 1501(f)(3) of
set out as a note under section 113 of this title .
Section effective Oct. 1, 1996, see section 1691(b)(1) of
set out as a note under section 10001 of this title .
"(a) Continuation Under Old Law .—Except as provided 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
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 reserve 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 discharged 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."
"(a) Savings Provisions for Required Separation Age .—A reserve officer of the Navy or the Marine Corps—
"(A) on the effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) of
set out as an Effective Date note under section 10001 of this title ] is in an active status, and
"(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 applicable, 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 effect 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 complete 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 becomes 62 years of age, may be retained in an active status not later than the date he becomes 62 years of age."
CHAPTER 1407 -FAILURE OF SELECTION FOR PROMOTION AND INVOLUNTARY SEPARATION!@!Sec. 14502 -->
(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.