The Officer Promotion Re-Look Process: A Practitioner's Guide to Special Selection Boards

• Author: Major Edward K. (tad) Lawson Iv
• Pages: 07

184 MILITARY LAW REVIEW [Vol. 177

THE OFFICER PROMOTION RE-LOOK PROCESS:

A PRACTITIONER'S GUIDE TO SPECIAL SELECTION BOARDS

MAJOR EDWARD K. (TAD) LAWSON IV1

As a legal assistance attorney at a small Army installation, you are scheduled to meet with three officers recently nonselected for promotion: Captain Latoer, Major Correction, and Lieutenant Colonel Leftout. Each officer is seeking advice on his or her promotion re-look options. Since you are unfamiliar with this issue, you scan your Basic Course materials frantically looking for any relevant information to help you assist them. You find nothing. Do not panic; this article can help.

I. Introduction

The mission of officer promotion selection boards is to recommend qualified officers for promotion. Conversely, selection boards also identify those who are not qualified for advancement. Occasionally, due to an administrative or process error, a board will not recommend an officer for promotion who is otherwise qualified. Accordingly, a second special

selection system exists to reconsider officers for promotion who can demonstrate that some mistake caused the original board to nonselect them.2 As in the above legal assistance scenario, nonselected officers may seek legal advice from a judge advocate concerning this "re-look"3 process. The purpose of this article is to provide the practitioner with a guide to the Army's officer promotion re-look system.

The engine of this re-look process is the Special Selection Board (SSB).4 Congress created the SSB in 1981 as a part of the Defense Officer

Personnel Management Act (DOPMA).5 The SSB provisions of that legislation6 changed the previous promotion re-look board process that involved the non-statutorily created Standby Advisory Board (STAB).7 Unfortunately for the practitioner, the legislative history of the DOPMA provides little information relative to the creation of the SSB;8 and since then, the courts have developed very little case law interpreting the sta

ute.9 Consequently, the practitioner assisting an officer with a promotion re-look must also become familiar with the applicable directive10 and regulation11 that implement the statute and the various Army policies12 that govern the reconsideration process and the SSB procedure.

This article provides a broad overview of the promotion reconsideration process, beginning with a discussion of the basic requirements and prerequisites for a re-look. To initiate the re-look process, an aggrieved officer must demonstrate that some material error in the original selection

board process justifies promotion reconsideration. The second section of the article focuses on the nonselected officer's written request to the Department of the Army for a SSB to reconsider promotion. Only a well-drafted request for reconsideration will withstand the close scrutiny of the applicable re-look approval and denial authorities. The concluding section of the article examines the operations of the SSB, which parallel the composition and procedures utilized by normal selection boards. The article then focuses on the legal assistance scenario as a reference point for practical guidance, and to highlight important aspects of the promotion re-look process.

II. Getting Started: Promotion Re-look Basics

As a starting point, the original promotion selection procedure must have followed the law.

The documents that are sent to a Selection Board for its consideration therefore must be substantially complete, and must fairly portray the officer's record. If a Service Secretary places before the Board an alleged officer's record filled with prejudicial information or omits documents equally pertinent which might have mitigated the adverse impact of the prejudicial information, then the record is not complete, and it is before the Selection Board in a way other than as the statute prescribes.13

Officers who are convinced that some material error, not of their own making, resulted in the nonselection by the original promotion board can request reconsideration by a SSB. The statutory authority of the Secretary of the Army (SECARMY) to convene a SSB, however, is limited to only two circumstances. The first is to consider an officer for promotion whose file failed to go before the original selection board because of an administrative error.14 The second circumstance is to reconsider an officer for promotion whom the original board considered in an unfair manner.15

A. Proper Bases for a SSB Consideration or Reconsideration

You first conduct an initial client interview with LTC Leftout. Lieutenant Colonel Leftout claims that her file did not go before the promotion board even though she was in the promotion zone. During the interview you call the installation's Officer Records Office and verify that because of some administrative error at U.S. Army Human Resources Command, the original selection board did not consider LTC Leftout's file for promotion.

1. Officer Not Considered

   The DOPMA statute requires the Service Secretary to refer an officer's file to a SSB when an original promotion selection board failed to consider that officer for promotion because of some administrative error.16

   In LTC Leftout's situation, the original board did not consider her file, as it should have, so the SECARMY will convene a SSB to consider her for promotion to Colonel.17 In accordance with Army regulation, the local Officer Records Office is responsible to notify the U.S. Total Army Personal Command (PERSCOM), (now U.S. Army Human Resources Command (HRC)) of the omission.18 Additionally, the Officer Records Office

   will prepare the SSB request for the officer.19 No further legal counsel may be necessary for LTC Leftout.20

2. Considered in a Manner "Materially Unfair"

   A SSB can reconsider an officer for promotion if the original board nonselected him or her because of some material unfairness.21 Under the statute, a promotion board's actions are "materially unfair," when: (1) the board acted contrary to law; (2) the board involved material error of fact or material administrative error; or (3) the board did not have before it some material information.22 Each of the three "materially unfair" situations is discussed in more detail below. The first step an officer must take to determine if his or her nonselection was caused by some material unfairness, however, is to immediately request an exact copy of the file considered by the original promotion selection board from PERSCOM.23 Appendix A contains a sample request for this file.24

   You met with MAJ Correction and CPT Latoer, but they did not know why they were nonselected for promotion; so you helped them each draft a request to PERSCOM to obtain their promotion files. Once the officers received their files, they discovered possible bases for promotion reconsideration. MAJ Correction believes that an unfair evaluation by his senior rater in a previous Officer Evaluation Report (OER), that he had not previously seen, caused his nonselection. In addition, his picture and several awards are missing from his promotion file. CPT Latoer claims his promotion file contained a letter of reprimand that is not his. Additionally, he is concerned that the last OER he received before the board met was not in his file. This latest OER was for a rating period that ended three months

   before the cut-off date for submissions to the promotion board. Your mission is to determine if either aggrieved officer has a chance at a re-look.

3. Board Acted Contrary to Law

   Neither the statute nor the implementing regulations address with any detail this specific basis for promotion reconsideration.25 Presumably, due to the secret nature of the process,26 it would be difficult to determine whether a promotion selection board acted contrary to law. Two types of situations, however, have come up in practice: improper composition of promotion board members27 and standing procedures that violates an officer's constitutional rights.28 Upon a showing by the aggrieved officer that the board acted contrary to law, the nature of the material error determines whether the Service Secretary will refer the case to a SSB.29 In CPT Latoer's scenario, the promotion board considered some other officer's letter of reprimand. Consequently, CPT Latoer could argue that the SECARMY did not follow proper records management regulations when this letter of reprimand was misfiled in his promotion file. Therefore, he may assert that the board acted contrary to law when it improperly considered the letter of reprimand. Additionally, as discussed below, CPT Latoer could claim that the board's consideration of the letter of reprimand

   involved a material error of fact in that he has never received a letter of reprimand.

4. Board Involved Material Error of Fact

   An error is considered material if it might have affected the outcome of a selection board decision.30 A request for a SSB using this basis must assert that the original board considered an officer's file, which contained a "material error." An officer who believes an error of fact caused their nonselection should request that a corrected record go before a SSB.31 In

   addition to the "board action contrary to law" basis discussed above,32 the

   inclusion of someone else's letter of reprimand in CPT Lateoer's promotion file constitutes a material error of fact that should entitle him to reconsideration by a SSB. In contrast, MAJ Correction could seek promotion reconsideration because of the alleged faulty senior rater evaluation in a previous OER. MAJ Correction's request for promotion reconsideration, however, would be part of an OER appeal.

5. Board Did Not Consider Material Information

   Additionally, the absence of material information from an officer's promotion file may justify a request for reconsideration.33 In CPT Latoer's situation, his latest OER was missing from his promotion file. Army Regulation 600-8-29 requires that "late" OERs go before the board,34...