
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 505(c)(3)(B)]
[CITE: 10USC14502]

 
                         TITLE 10--ARMED FORCES
 
                     Subtitle E--Reserve Components
 
  PART III--PROMOTION AND RETENTION OF OFFICERS ON THE RESERVE ACTIVE-
                               STATUS LIST
 
    CHAPTER 1407--FAILURE OF SELECTION FOR PROMOTION AND INVOLUNTARY 
                               SEPARATION
 
Sec. 14502. Special selection boards: correction of errors

    (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 selection board 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 selection board that considered the 
    officer or former officer was contrary to law or involved material 
    error of fact or material administrative error; or
        (B) the selection 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) Such board shall consider the record of the officer or former 
officer as that record, if corrected, would have appeared to the 
selection 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.

(Added Pub. L. 103-337, div. A, title XVI, Sec. 1611, Oct. 5, 1994, 108 
Stat. 2947.)


                            Prior Provisions

    Provisions similar to those in this section were contained in 
section 5904 of this title, prior to repeal by Pub. L. 103-337, 
Sec. 1629(b)(2).

                  Section Referred to in Other Sections

    This section is referred to in sections 14108, 14301, 14304, 14308, 
14312, 14316, 14317, 14501 of this title.
