SUBCHAPTER IV—FAILURE OF SELECTION FOR PROMOTION AND INVOLUNTARY SEPARATION

        

        

Editorial Notes

Codification

Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 634, 649, which directed amendment of chapter "205" of this title by adding this subchapter at the end, was executed by adding this subchapter at the end of this chapter, which is chapter 2005, to reflect the probable intent of Congress.

Amendments

2023—Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 634, 649, 650, 653, added two items 20251 and items 20252a and 20253. Amendment was made pursuant to operation of section 102 of this title.

¹ So in original. Two sections 20251 have been enacted.

§20251.¹ Failure of selection for promotion

(a) In General.—Except as provided in this section, sections 14501, 14503, and 14504 and section ² 631 and 632 of this title shall apply to promotions of officers on the Space Force officer list. For the purpose of such applicability—

(1) any reference in those sections to the reserve active-status list or the active-duty list shall apply to the Space Force officer list; and

(2) any reference in those sections to a board convened under section 14201 ³ or 611 of this title shall apply to a board convened under section 20211 of this title.

(b) Inapplicability of Failure of Selection for Promotion to Officers Above Promotion Zone.—The reference in section 14501 of this title to an officer above the promotion zone shall not apply in the promotion of officers on the Space Force officer list.

(c) Retirement Authorities.—In applying section 631 or 632 of this title to such an officer, the reference in subsection (a)(3) of that section to qualifying for retirement under certain sections of this title shall be deemed to refer to qualifying for retirement under any provision of law other than chapter 61 of this title.

(d) Effect of Failure of Selection.—In the administration of this chapter pursuant to subsection (a)—

(1) an officer on the Space Force officer list shall not be deemed to have failed twice of selection for promotion for purposes of section 629(e)(2) or 14502(b) ³ of this title until the officer has failed selection of promotion to the next higher grade the maximum number of times specified for opportunities for promotion to such grade within the competitive category concerned under section 20234 of this title; and

(2) any reference in section 631(a) or 632(a) of this title, or in sections 14504 through 14506 of this title, to an officer who has failed of selection for promotion to the next higher grade for the second time shall be deemed to refer instead to an officer on the Space Force officer list who has failed of selection for promotion to the next higher grade for the maximum number of times specified for opportunities for promotion to such grade within the competitive category concerned under section 20234 of this title.

(Added Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 649.)

Editorial Notes

References in Text

Section 14201 of this title, referred to in subsec. (a)(2), probably should be section 14101 of this title, which relates to convening of selection boards. There is no section 14201 of this title.

Section 14502(b) of this title, referred to in subsec. (d)(1), probably should be section 14501(b) of this title, which relates to officers twice failed of selection. Section 14502(b) of this title relates to officers considered but not selected due to material error.

¹ Another section 20251 is set out after this section.

² So in original. Probably should be "sections".

³ See References in Text note below.

§20251.¹ Special selection boards; correction of errors

(a) Persons Not Considered by Promotion Board Because of Administrative Error.—

(1) Convening of board.—In the case of an officer or former officer who the Secretary of the Air Force determines was not considered for selection for promotion by a selection board convened under section 20211 of this title because of administrative error, the Secretary shall convene a special selection board under this subsection to determine whether that officer or former officer should be recommended for promotion.

(2) Board composition; oath.—Any such board shall be convened under regulations prescribed by the Secretary of Defense and shall be appointed and composed in accordance with section 20212 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.

(3) Record considered by board.—A special selection board convened under paragraph (1) shall consider the record of the officer or former officer as that record would have appeared to the selection 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.

(4) Effect.—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 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) Convening of board.—In the case of an officer or former officer who was eligible for promotion and was considered for selection for promotion by a selection board convened under section 20211 of this title but was not selected, the Secretary of the Air Force 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 must determine that—

(A) the action of the selection 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 board did not have before it for its consideration material information.

(2) Board composition; oath.—A special selection board convened under paragraph ((1) ² shall be appointed and composed in accordance with section 20212 of this title (including the representation of competitive categories required by that section), and the members of sch ³ a board shall take an oath in the same manner as prescribed in section 14103 of this title.

(3) Record considered by board.—The special selection board shall consider the record of the officer or former officer as that record, if corrected, would have appeared to the board that considered the officer or former officer. That record shall be compared with the records of a sampling 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) Effect.—If a special selection board convened under paragraph (1) does not recommend for promotion a ⁴ officer or former officer whose name was referred to it for consideration, the officer or former officer incurs no additional failure of selection for promotion.

(c) Report of Board.—Each special selection board convened under this section shall submit to the Secretary of the Air Force a written report, signed by each member of the board, containing the name of each officer or former officer it recommends for promotion and certifying that the board has carefully considered the record of each officer or former officer whose name was referred to it.

(d) Applicable Provisions.—The provisions of sections 20215 and 20216 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 20211 of this title.

(e) Appointment of Officers Recommended for Promotion.—

(1) Promotion.—An officer or former officer whose name is placed on a promotion list as a result of a 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 the officer or former officer been recommended for promotion by the board which should have considered or which did consider the officer of former officer.

(2) Status of promoted officer.—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 Space Force officer 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) Correction of military record.—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 of the Air Force 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) Prescribing of Circumstances for Consideration by Board.—The Secretary of Defense may prescribe by regulation—

(1) the circumstances under which consideration by a special selection board is contingent upon application for consideration by an officer or former officer; and

(2) time limits within which of ⁴ officer or former officer must make such application in order to be considered by a special selection board under this section.

(g) 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 20212 of this title and regulations prescribed by the Secretary of the Air Force; and

(3) shall be subject to the provisions of section 613 of this title.

(h) 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 this chapter until—

(A) the claim has been referred to a special selection board by the Secretary of the Air Force 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 or former officer's claim.

(i) Judicial Review.—(1) A court of the United States may review a determination by the Secretary of the Air Force 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, 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, who shall provide the officer or former officer reconsideration by a new special selection board.

(j) Designation of Boards.—The Secretary of the Air Force may designate a promotion board convened under section 20201(a) of this title as a special selection board convened under this section.

(Added Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 650.)

¹ Another section 20251 is set out preceding this section.

² So in original. The first opening parenthesis probably should not appear.

³ So in original. Probably should be "such".

⁴ So in original. Probably should be "an".

§20252a. Special selection review boards: reference

Section 628a of this title, relating to the convening of a special selection review board when credible information of an adverse nature was not furnished to a promotion board, applies with respect to persons recommended by a selection board for promotion to a grade at or below the grade of major general in the Space Force.

(Added Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 653.)

§20253. Retirement: retirement for years of service

Sections 633 through 636 of this title shall apply to the retirement of officers on the Space Force officer list in the same manner as to officers of the Regular Air Force.

(Added Pub. L. 118–31, div. A, title XVII, §1716(c), Dec. 22, 2023, 137 Stat. 653.)