Officer Selection Boards and Due Process of Law

• Author: Captain John N. Ford, USAR
• Pages: 03

I. INTRODUCTION

Self-interest alone should provide adequate motivation for members of the military establishment to examine the statutory and administrative bases of the Army's process of selecting commissioned officers for promotion. Unfortunately, the tremendous number of promotion lists in the Army converta any general analysis of the subject into a Herculean task. For that reason, this article will focus on the compatibility of the eelection procedure with the due process clause of the fifth amendment to the Constitution only in the context of selection boards which consider Regular officers for permanent promotion on the Army Promotion List; selection boards which consider Reserve officers for perma. nent promotion; and boards which consider active duty officers for temporarypromotionin theArmyoftheUnitedStates(AUS).'Dis.cussion of the formal statutory and regulatory scheme will be followed by an examination of the method of empaneling a selec.tian board and adescriptian of a typical board's proceedings. Finally, the system, as structured and actually administered, will be tested against thedueprocess requirements of the fifth amendmentto the Constitution.

Oral interviewswithformerselectionboardmembers providethe

basis for much of the information detailing the manner in which the boards conduct their business. Same of the individuals inter. viewed have given the author permission to quote them on the con. dition that their identities remain anonymous, a condition which has been honored in the preparation of this article. Formal citation toauthorityissimilarlylirnitedbythefactthattheauthorhasbeen

Thia article is an adaption ai8 theme presentstto The Judge AdvocateGanmaVs School, U.S. Amy in Batisfaction of the mtlng rqunements for the Nonrerldent Judge Advocate Officer Advanced Courae The omnions and conclusians nreaentstherem am those of the author and do not necessarily repreeent the vi& of the Department of the Navy. The Judge Advocate Generays School. U S Army, or anyother governmental agency

**Captam, USAR Attorney Advisor (Contract), Depertment of the Navy B.A., 1964, J D 1970, Univemty of Texas. Member of the Bar of Texae

The selection Proteas employed for promofmg Chaplams. members of the Women's Army Corps 01 the A m y Medical Department and pramotmns foranka above lieutenant colonel are beyond the aeupe of th~aartlCle

,

denied access to documents in the possession of the Office of the Deputy Chief of Staff for Personnel (ODCSPER) which enumerate the specific criteria for choosing selection board members. For. tunately the hiatus is not complete; general criteria have been conveyed to the author orally by personnel In ODCSPER.

11. THE STATUTORY/REGULATORY SCHEME The StatutOTy basis far the Army's officer promotion system 18

the Officer Personnel Act of 1947, as amended2 The original purpose of the Act was to resolve the question of how all the Armed Forces would manage their officer personnel in the aftermath of World War I1 and the anticipated transition from a huge wartime military force to a relatively small peacetime establishment. The fmt four titles of the Act deal with promotions in the Navy and Marine Corpa with only title five concerning Armyprocedures. For the Army, the Act ushered in a new era, utilizing procedures which were well.known in the Navy-promotion by selection 9

By mposing the requirement that an officer be selected by the majority of a board of officers before he could be promoted, Congress soughtto greatly strengthen the Army's officer corps.'To accompiish the mission of selecting officers for permanent promo. tion, Congress established two board systems, one for Regular Army officers and the other for Reserve officers. Congress alsomade provision for officers ta be appointed to a temporary grade, but did not establish a selection board for accomplishing this task. A. PERMANENT PROMOTIONS 1 Regular Officers

Selection boards are to convene at Headquarters, Department of the Army (HQDAF at times prescribed by the Secretary of the Armv.O Each board must be COmDoSed of at least five officers ofthe

H l? RE? KO 610 80th Cong , 1st Sass 3 11917) Id' Army Reg So 624-100.para 16a 129 July 19661 [hereinafter cited 88 AR 624-

I

10 u s c 4 329iiaj (ma). AR 624.ioo 5, para 1 6 ~

Regular Army who hold a permanent or temporary grade above lieutenant colonel. Each board member must be senior in regular grade to, and outrank any officer whom the board is considering.' However, boards considering officers appointed in a special branch' or camed on a list other than the Army Promotion List, will include one 07 more members of the branch being considered, and such members must have a regular or temporary grade above major.0 No selection board may serve longer than one year,'o and no member may serve an two consecutive boards for promotion to the same grade, if the second board considers any officer considered but not recommended for promotion by the fist board." Each member of a selection board must swear that he will perform his duties without prejudice or partiality, keeping in mind the "special fitness of officers and the efficiency of the Army."lz Promotions to the regular grade of captain through major general may be made only upon the recommendation ofa promotion board, unlees otherwise provided by law, and such recommendation must bemade by amajarityofthetntal boardmembership. Furthermore,a board may not recommend officers as best qualified for pramotian unless it also determines them to be fully qualified.'$ To be fully qualified, an officer must be found by a promotion board to be qualified professionally and morally, of demonstrated integrity, and capable of performing the duties expected of an officer of his branch in the next higher grade; whereas thebest qualified officers are those fully qualified officers whom the board determines to be the best qualified to meet the needs of the Army.14

Any officer who is eligible for consideration for promotion may send a letter to the board, through official channels, calling attention to matters of record in the Department of the Army (DA) canceming himself which he considers important. However, the letter may not contain criticism or reflect upon the character, conduct, or motives of any afficer.'s No candidate for promotion may appear

MILITARY LAN REVIEW [Vol 70

before a board on his awn behalf, nor may any officer appear before a board on behalf of a candidate, but letters of commendation or appreciation and recommendations for promotion may be forward. ed directly to the promotion board.16

There are three statutory procedures whereby selections may be made for promotion to the regular grade of captain, major or lieutenant colonel. First, ta fill existing or anticipated vacancies, the Secretary may direct the board to consider officers in the specified grade in theorder oftheir seniority on thepromotionlistconcerned recommend those who are fully qualified for promotion; pass over thosenotsoqualified; and continue thisprocedureuntil thenumberof afficm specified by the Secretary is recommended." Second, when an officermustbeconsidered for promotion because oflengthof service or because he is on a promotion list above an officer who must be considered for that reason, the Secretary may furnish the board a list of officers to be considered for promotion to the grade concerned and direct the board to recommend the officers on that list whom it determines to be fully qualified forpromotian.'PThird, the Secretary may furnish the board with B list of promotion list officers and direct the board to recommend a number specified by the Secretary as best qualified for promotion. However, thenumber specifiedby the Secretary must beat least 80percentofthoselisted for promotion for the first time.19 This last method is used to promote officers to the gradesmajor throughcolanel,20thefirsttwomethods being utilized to promote officers to the regular grade of captain.%' In any case, the board is enjoined to base its selection on an impartial consideration ofall the candidates, and to consider all factors, including ability, effinency, seniority, and age. However, promotion boards are prohibited from divulging their reasons for the selection or nanselection of any individual.22 The actions of promotion boards are administratively final and reconsideration will be granted only in those cases where material emor was present in the records of anofficer when reviewed by aselection board. This determination will be made by HQDA.'3

"AR 624-100 eupro note 5, at para. lEd(21.'10 U S.C 9 330MaX19701 See 10 U.S.C. S 3296119$01 which defules"promolion ill.",'lOU S C §3300(b)(1970) 1OU.SC. § 3 2 9 9 r 1 9 7 o ~ ~ ~ t a b l ~ s h ~ ~ t ~ ~ ~ - ~ - ~ ~ ~ ~ ~ w~~ementBwhich enntle certain Regular officers to mandatory promotion con.sideration.

1910 U.S.C 9 3300(cI (1950).

"AR 624-100,

6upia nore S, at para 18a(l)"Id at para 18alZ)

"Id sf para. 18.'.Id ai para 186

19761 OFFICER SELECTION BOARDS

2. Reserve officers

The requirements far selection boards which are to consider Reserve officers are similar to those specified for Regular officers. However, some significant differences exist. First, the Secretary may convene Reserve promotion boards or he may delegate this authority.24 In response to this flexibility, the Secretary has delegated convening authority to various commandera in the United States and ovemeaB.26 There are two types of boards which these commanders may convene, unit vacancy boards and man. datory selection boards.26 Unit vacancy boards will normally con. vene during the months of March, June, September and December on dates announced by HQDA, while mandatory boards will convene annually as announced by HQDA. Also, mandatory boards will have the additional duty of serving as standby advisory boards for cases which must be reconsidered.2'

Each board is to be composed of at least five members, each of whom is senior in regular or reserve...