
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 503(b)]
[Document affected by Public Law 107-107 Section 505(c)(3)(A)]
[Document affected by Public Law 107-107 Section 503(c)]
[CITE: 10USC628]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
    CHAPTER 36--PROMOTION, SEPARATION, AND INVOLUNTARY RETIREMENT OF 
                    OFFICERS ON THE ACTIVE-DUTY LIST
 
 SUBCHAPTER III--FAILURE OF SELECTION FOR PROMOTION AND RETIREMENT FOR 
                            YEARS OF SERVICE
 
Sec. 628. Special selection boards

    (a) Persons Not Considered by Promotion Boards Due to Administrative 
Error.--(1) If the Secretary of the military department concerned 
determines that because of administrative error a person who should have 
been considered for selection for promotion by a promotion board was not 
so considered, the Secretary shall convene a special selection board 
under this subsection to determine whether that person (whether or not 
then on active duty) should be recommended for promotion.
    (2) A special selection board convened under paragraph (1) shall 
consider the record of the person whose name was referred to it for 
consideration as that record would have appeared to the board that 
should have considered him. That record shall be compared with a 
sampling of the records of those officers of the same competitive 
category who were recommended for promotion, and those officers who were 
not recommended for promotion, by the board that should have considered 
him.
    (3) If a special selection board convened under paragraph (1) does 
not recommend for promotion a person whose name was referred to it for 
consideration for selection for appointment to a grade other than a 
general officer or flag officer grade, the person shall be considered to 
have failed of selection for promotion.
    (b) Persons Considered by Promotion Boards in Unfair Manner.--(1) If 
the Secretary of the military department concerned determines, in the 
case of a person who was considered for selection for promotion by a 
promotion board but was not selected, that there was material unfairness 
with respect to that person, the Secretary may convene a special 
selection board under this subsection to determine whether that person 
(whether or not then on active duty) should be recommended for 
promotion. In order to determine that there was material unfairness, the 
Secretary must determine that--
        (A) the action of the promotion board that considered the person 
    was contrary to law or involved material error of fact or material 
    administrative error; or
        (B) the board did not have before it for its consideration 
    material information.

    (2) A special selection board convened under paragraph (1) shall 
consider the record of the person whose name was referred to it for 
consideration as that record, if corrected, would have appeared to the 
board that considered him. That record shall be compared with the 
records of a sampling of those officers of the same competitive category 
who were recommended for promotion, and those officers who were not 
recommended for promotion, by the board that considered him.
    (3) If a special selection board convened under paragraph (1) does 
not recommend for promotion a person whose name was referred to it for 
consideration, the person incurs no additional failure of selection for 
promotion.
    (c) Reports of Boards.--(1) 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 person it recommends for promotion 
and certifying that the board has carefully considered the record 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 board convened under 
this section in the same manner as they apply to the report and 
proceedings of a selection board convened under section 611(a) of this 
title. However, in the case of a board convened under this section to 
consider a warrant officer or former warrant officer, the provisions of 
sections 576(d) and 576(f) of this title (rather than the provisions of 
sections 617(b) and 618 of this title) apply to the report and 
proceedings of the board in the same manner as they apply to the report 
and proceedings of a selection board convened under section 573 of this 
title.
    (d) Appointment of Persons Selected by Boards.--(1) 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 a 
person whose name was referred to it for consideration, that person 
shall, as soon as practicable, be appointed to that grade in accordance 
with subsections (b), (c), and (d) of section 624 of this title. 
However, in the case of a board convened under this section to consider 
a warrant officer or former warrant officer, if the report of that 
board, as approved by the Secretary concerned, recommends that warrant 
officer or former warrant officer for promotion to the next higher 
grade, that person shall, as soon as practicable, be appointed to the 
next higher grade in accordance with provisions of section 578(c) of 
this title (rather than subsections (b), (c), and (d) of section 624 of 
this title).
    (2) A person who is appointed to the next higher grade as the result 
of the recommendation of a special selection board convened under this 
section shall, upon that appointment, have the same date of rank, the 
same effective date for the pay and allowances of that grade, and the 
same position on the active-duty list as he would have had if he had 
been recommended for promotion to that grade by the board which should 
have considered, or which did consider, him. 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 
subsequent special selection board under this section.
    (e) Deceased Persons.--If a person whose name is being considered 
for referral to a special selection board under this section dies before 
the completion of proceedings under this section with respect to that 
person, this section shall be applied to that person posthumously.
    (f) Convening of Boards.--A board convened under this section--
        (1) shall be convened under regulations prescribed by the 
    Secretary of Defense;
        (2) shall be composed in accordance with section 612 of this 
    title or, in the case of board to consider a warrant officer or 
    former warrant officer, in accordance with section 573 of this title 
    and regulations prescribed by the Secretary of the military 
    department concerned; and
        (3) shall be subject to the provisions of section 613 of this 
    title.

    (g) Promotion Board Defined.--In this section, the term ``promotion 
board'' means a selection board convened by the Secretary of a military 
department under section 573(a) or 611(a) of this title.

(Added Pub. L. 96-513, title I, Sec. 105, Dec. 12, 1980, 94 Stat. 2859; 
amended Pub. L. 98-525, title V, Sec. 527(a), Oct. 19, 1984, 98 Stat. 
2525; Pub. L. 102-190, div. A, title XI, Sec. 1131(4), Dec. 5, 1991, 105 
Stat. 1506; Pub. L. 102-484, div. A, title X, Sec. 1052(10), Oct. 23, 
1992, 106 Stat. 2499; Pub. L. 105-261, div. A, title V, Sec. 501(a)-(e), 
Oct. 17, 1998, 112 Stat. 2000-2002; Pub. L. 106-398, Sec. 1 [[div. A], 
title X, Sec. 1087(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A-290.)


                               Amendments

    2000--Subsec. (c)(2). Pub. L. 106-398 substituted ``sections'' for 
``section'' after ``rather than the provisions of''.
    1998--Subsec. (a). Pub. L. 105-261, Sec. 501(a)(1), inserted subsec. 
heading, added par. (1), and struck out former par. (1) which read as 
follows: ``In the case of an officer who is eligible for promotion who 
the Secretary of the military department concerned determines was not 
considered for selection for promotion by a selection board because of 
administrative error, the Secretary concerned, under regulations 
prescribed by the Secretary of Defense, shall convene a special 
selection board under this subsection (composed in accordance with 
section 612 of this title or, in the case of a warrant officer, composed 
in accordance with section 573 of this title and regulations prescribed 
by the Secretary of the military department concerned) to determine 
whether such officer should be recommended for promotion.''
    Subsec. (a)(2). Pub. L. 105-261, Sec. 501(a)(2), substituted ``the 
person whose name was referred to it for consideration as that record'' 
for ``the officer as his record''.
    Subsec. (a)(3). Pub. L. 105-261, Sec. 501(a)(3), substituted ``a 
person whose name was referred to it for consideration for selection for 
appointment to a grade other than a general officer or flag officer 
grade, the person'' for ``an officer in a grade below the grade of 
colonel or, in the case of an officer of the Navy, captain whose name 
was referred to it for consideration, the officer''.
    Subsec. (b). Pub. L. 105-261, Sec. 501(b)(1), inserted subsec. 
heading, added par. (1), and struck out former par. (1) which read as 
follows: ``In the case of an officer who is eligible for promotion who 
was considered for selection for promotion by a selection board but was 
not selected, the Secretary of the military department concerned, under 
regulations prescribed by the Secretary of Defense, may convene a 
special selection board under this subsection (composed in accordance 
with section 612 of this title or, in the case of a warrant officer, 
composed in accordance with section 573 of this title and regulations 
prescribed by the Secretary of the military department concerned) to 
determine whether such officer should be recommended for promotion if 
the Secretary concerned determines that--
        ``(A) the action of the board which considered the officer was 
    contrary to law or involved material error of fact or material 
    administrative error; or
        ``(B) the board did not have before it for its consideration 
    material information.''
    Subsec. (b)(2). Pub. L. 105-261, Sec. 501(b)(2), substituted ``the 
person whose name was referred to it for consideration as that record'' 
for ``the officer as his record''.
    Subsec. (b)(3). Pub. L. 105-261, Sec. 501(b)(3)(A), substituted ``a 
person'' for ``an officer'' and ``the person'' for ``the officer''.
    Subsec. (c). Pub. L. 105-261, Sec. 501(c)(1)(A), inserted heading.
    Subsec. (c)(1). Pub. L. 105-261, Sec. 501(c)(1)(B), substituted 
``person'' for ``officer'' in two places.
    Subsec. (c)(2). Pub. L. 105-261, Sec. 501(c)(1)(C), inserted at end 
``However, in the case of a board convened under this section to 
consider a warrant officer or former warrant officer, the provisions of 
sections 576(d) and 576(f) of this title (rather than the provisions of 
section 617(b) and 618 of this title) apply to the report and 
proceedings of the board in the same manner as they apply to the report 
and proceedings of a selection board convened under section 573 of this 
title.''
    Subsec. (d). Pub. L. 105-261, Sec. 501(c)(2)(A), inserted heading.
    Subsec. (d)(1). Pub. L. 105-261, Sec. 501(c)(2)(B)-(E), substituted 
``a person'' for ``an officer'', ``that person'' for ``such officer'', 
and ``that grade in'' for ``the next higher grade in'' and inserted at 
end ``However, in the case of a board convened under this section to 
consider a warrant officer or former warrant officer, if the report of 
that board, as approved by the Secretary concerned, recommends that 
warrant officer or former warrant officer for promotion to the next 
higher grade, that person shall, as soon as practicable, be appointed to 
the next higher grade in accordance with provisions of section 578(c) of 
this title (rather than subsections (b), (c), and (d) of section 624 of 
this title).''
    Subsec. (d)(2). Pub. L. 105-261, Sec. 501(c)(3), substituted ``A 
person who is appointed'' for ``An officer who is promoted'' 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 subsequent special selection board under this 
section.''
    Subsec. (e). Pub. L. 105-261, Sec. 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, Sec. 501(e), added subsecs. (f) 
and (g).
    1992--Subsec. (b)(1). Pub. L. 102-484 substituted ``section 573'' 
for ``section 558''.
    1991--Subsec. (a)(1). Pub. L. 102-190 substituted ``section 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 accordance with section 558 of this 
title and regulations prescribed by the Secretary of the military 
department concerned)'' for ``(composed in accordance with section 612 
of this title)''.


                    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.

                         Delegation of Functions

    Functions of President under subsec. (d)(1) to approve, 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, Secs. 1(a), 3, Dec. 9, 1982, 47 F.R. 55897, 55898, set out as 
a note under section 301 of Title 3, The President.


                    Ratification of Codified Practice

    Pub. L. 105-261, div. A, title V, Sec. 501(f), Oct. 17, 1998, 112 
Stat. 2002, provided that: ``The consideration by a special selection 
board convened under section 628 of title 10, United States Code, before 
the date of the enactment of this Act [Oct. 17, 1998] of a person who, 
at the time of consideration, was a retired officer or former officer of 
the Armed Forces (including a deceased retired or former officer) is 
hereby ratified.''

                  Section Referred to in Other Sections

    This section is referred to in sections 618, 641 of this title.
