---
kind: "section"
citation: "10 U.S.C. § 628"
title: "10"
title_heading: "Armed Forces"
number: "628"
heading: "Special selection boards"
release: "119-102"
url: "https://uscodex.org/usc/10/628"
units:
  - "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"
---

# §628. Special selection boards

- (a) **Persons Not Considered by Promotion Boards Due to Administrative Error.—**
  - (1) If the Secretary of the military [department](/usc/10/101.md?p=a-6) concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the [promotion zone](/usc/10/645.md?p=1) by a [promotion board](#k) was not so considered, the Secretary shall convene a special [selection board](/usc/10/1558.md?p=b-2-A) under this subsection to determine whether that person (whether or not then on [active duty](/usc/10/101.md?p=d-1)) should be recommended for promotion.
  - (2) A special [selection board](/usc/10/1558.md?p=b-2-A) convened under [paragraph (1)](#a-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](/usc/10/101.md?p=b-1) of the same competitive category who were recommended for promotion, and those [officers](/usc/10/101.md?p=b-1) who were not recommended for promotion, by the board that should have considered him.
  - (3) If a special [selection board](/usc/10/1558.md?p=b-2-A) convened under [paragraph (1)](#a-1) does not recommend for promotion a person whose name was referred to it for consideration for selection for appointment to a [grade](/usc/10/101.md?p=b-7) other than a [general officer](/usc/10/101.md?p=b-4) or [flag officer](/usc/10/101.md?p=b-5) [grade](/usc/10/101.md?p=b-7), 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](/usc/10/101.md?p=a-6) concerned determines, in the case of a person who was considered for selection for promotion by a [promotion board](#k) but was not selected, that there was material unfairness with respect to that person, the Secretary may convene a special [selection board](/usc/10/1558.md?p=b-2-A) under this subsection to determine whether that person (whether or not then on [active duty](/usc/10/101.md?p=d-1)) 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](#k) that considered the person 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) A special [selection board](/usc/10/1558.md?p=b-2-A) convened under [paragraph (1)](#b-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](/usc/10/101.md?p=b-1) of the same competitive category who were recommended for promotion, and those [officers](/usc/10/101.md?p=b-1) who were not recommended for promotion, by the board that considered him.
  - (3) If a special [selection board](/usc/10/1558.md?p=b-2-A) convened under [paragraph (1)](#b-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](/usc/10/1558.md?p=b-2-A) convened under this section shall submit to the Secretary of the military [department](/usc/10/101.md?p=a-6) concerned a written report, signed by each [member](/usc/10/1408.md?p=a-5) 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)](/usc/10/617.md?p=b) and [618](/usc/10/618.md) of this title apply to the report and proceedings of a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section in the same manner as they apply to the report and proceedings of a [selection board](/usc/10/1558.md?p=b-2-A) convened under [section 611(a) of this title](/usc/10/611.md?p=a). However, in the case of a board convened under this section to consider a [warrant officer](/usc/10/101.md?p=b-3) or former [warrant officer](/usc/10/101.md?p=b-3), the provisions of sections [576(d)](/usc/10/576.md?p=d), [576(f)](/usc/10/576.md?p=f), and [613a](/usc/10/613a.md) of this title (rather than the provisions of sections [617(b)](/usc/10/617.md?p=b) and [618](/usc/10/618.md) 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](/usc/10/1558.md?p=b-2-A) convened under [section 573 of this title](/usc/10/573.md).
- (d) **Appointment of Persons Selected by Boards.—**
  - (1) If the report of a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section, as approved by the President, recommends for promotion to the next higher [grade](/usc/10/101.md?p=b-7) a person whose name was referred to it for consideration, that person shall, as soon as practicable, be appointed to that [grade](/usc/10/101.md?p=b-7) in accordance with subsections (b), (c), and (d) of [section 624 of this title](/usc/10/624.md). However, in the case of a board convened under this section to consider a [warrant officer](/usc/10/101.md?p=b-3) or former [warrant officer](/usc/10/101.md?p=b-3), if the report of that board, as approved by the [Secretary concerned](/usc/10/101.md?p=a-9), recommends that [warrant officer](/usc/10/101.md?p=b-3) or former [warrant officer](/usc/10/101.md?p=b-3) for promotion to the next higher [grade](/usc/10/101.md?p=b-7), that person shall, as soon as practicable, be appointed to the next higher [grade](/usc/10/101.md?p=b-7) in accordance with provisions of [section 578(c) of this title](/usc/10/578.md?p=c) (rather than subsections (b), (c), and (d) of [section 624 of this title](/usc/10/624.md)).
  - (2) A person who is appointed to the next higher [grade](/usc/10/101.md?p=b-7) as the result of the recommendation of a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section shall, upon that appointment, have the same date of [rank](/usc/10/101.md?p=b-8), the same effective date for the [pay](/usc/10/101.md?p=a-15) and allowances of that [grade](/usc/10/101.md?p=b-7), and the same position on the [active-duty list](/usc/10/101.md?p=b-13) as he would have had if he had been recommended for promotion to that [grade](/usc/10/101.md?p=b-7) 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](/usc/10/101.md?p=b-13) when appointed to the next higher [grade](/usc/10/101.md?p=b-7), placement of that person on the [active-duty list](/usc/10/101.md?p=b-13) 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](/usc/10/1558.md?p=b-2-A) under this section.
- (e) **Deceased Persons.—** If a person whose name is being considered for referral to a special [selection board](/usc/10/1558.md?p=b-2-A) 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](/usc/10/612.md) or, in the case of board to consider a [warrant officer](/usc/10/101.md?p=b-3) or former [warrant officer](/usc/10/101.md?p=b-3), in accordance with [section 573 of this title](/usc/10/573.md) and regulations prescribed by the Secretary of the military [department](/usc/10/101.md?p=a-6) concerned; and
  - (3) shall be subject to the provisions of [section 613 of this title](/usc/10/613.md).
- (g) **Judicial Review.—**
  - (1)
    - (A) A [court](/usc/10/704.md?p=c-3-A) of the [United States](/usc/10/101.md?p=a-1) may review a determination by the Secretary of a military [department](/usc/10/101.md?p=a-6) under subsection [(a)(1)](#a-1) or [(b)(1)](#b-1) not to convene a special [selection board](/usc/10/1558.md?p=b-2-A) in the case of any person. In any such case, the [court](/usc/10/704.md?p=c-3-A) may set aside the Secretary’s determination only if the [court](/usc/10/704.md?p=c-3-A) finds the determination to be—
      - (i) arbitrary or capricious;
      - (ii) not based on substantial evidence;
      - (iii) a result of material error of fact or material administrative error; or
      - (iv) otherwise contrary to law.
    - (B) If a [court](/usc/10/704.md?p=c-3-A) sets aside a determination by the Secretary of a military [department](/usc/10/101.md?p=a-6) not to convene a special [selection board](/usc/10/1558.md?p=b-2-A) under this section, it shall remand the case to the [Secretary concerned](/usc/10/101.md?p=a-9), who shall provide for consideration by such a board.
  - (2) A [court](/usc/10/704.md?p=c-3-A) of the [United States](/usc/10/101.md?p=a-1) may review the action of a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section or an action of the Secretary of the military [department](/usc/10/101.md?p=a-6) concerned on the report of such a board. In any such case, a [court](/usc/10/704.md?p=c-3-A) may set aside the action only if the [court](/usc/10/704.md?p=c-3-A) finds that the action was—
    - (A) arbitrary or capricious;
    - (B) not based on substantial evidence;
    - (C) a result of material error of fact or material administrative error; or
    - (D) otherwise contrary to law.
  - (3)
    - (A) If, six months after receiving a complete application for consideration by a special [selection board](/usc/10/1558.md?p=b-2-A) under this section in any case, the [Secretary concerned](/usc/10/101.md?p=a-9) has not convened such a board and has not denied consideration by such a board in that case, the Secretary shall be deemed for the purposes of this subsection to have denied the consideration of the case by such a board.
    - (B) If, six months after the convening of a special [selection board](/usc/10/1558.md?p=b-2-A) under this section in any case, the [Secretary concerned](/usc/10/101.md?p=a-9) has not taken final action on the report of the board, the Secretary shall be deemed for the purposes of this subsection to have denied relief in such case.
    - (C) Under regulations prescribed under [subsection (j)](#j), the Secretary of a military [department](/usc/10/101.md?p=a-6) may waive the applicability of subparagraph [(A)](#g-3-A) or [(B)](#g-3-B) in a case if the Secretary determines that a longer period for consideration of the case is warranted. Such a waiver may be for an additional period of not more than six months. The [Secretary concerned](/usc/10/101.md?p=a-9) may not delegate authority to make a determination under this subparagraph.
- (h) **Limitations of Other Jurisdiction.—** No official or [court](/usc/10/704.md?p=c-3-A) of the [United States](/usc/10/101.md?p=a-1) may, with respect to a claim based to any extent on the failure of a person to be selected for promotion by a [promotion board](#k)—
  - (1) consider the claim unless the person has first been referred by the [Secretary concerned](/usc/10/101.md?p=a-9) to a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section and acted upon by that board and the report of the board has been approved by the President; or
  - (2) except as provided in [subsection (g)](#g), grant any relief on the claim unless the person has been selected for promotion by a special [selection board](/usc/10/1558.md?p=b-2-A) convened under this section to consider the person for recommendation for promotion and the report of the board has been approved by the President.
- (i) **Existing Jurisdiction.—** Nothing in this section limits—
  - (1) the jurisdiction of any [court](/usc/10/704.md?p=c-3-A) of the [United States](/usc/10/101.md?p=a-1) under any provision of law to determine the validity of any law, regulation, or policy relating to [selection boards](/usc/10/1558.md?p=b-2-A); or
  - (2) the authority of the Secretary of a military [department](/usc/10/101.md?p=a-6) to correct a military record under [section 1552 of this title](/usc/10/1552.md).
- (j) **Regulations.—**
  - (1) The Secretary of each military [department](/usc/10/101.md?p=a-6) shall prescribe regulations to carry out this section. Regulations under this subsection may not apply to [subsection (g)](#g), other than to [paragraph (3)(C)](#g-3-C) of that subsection.
  - (2) The Secretary may prescribe in the regulations under [paragraph (1)](#j-1) the circumstances under which consideration by a special [selection board](/usc/10/1558.md?p=b-2-A) may be provided for under this section, including the following:
    - (A) The circumstances under which consideration of a person’s case by a special [selection board](/usc/10/1558.md?p=b-2-A) is contingent upon application by or for that person.
    - (B) Any time limits applicable to the filing of an application for such consideration.
  - (3) Regulations prescribed by the Secretary of a military [department](/usc/10/101.md?p=a-6) under this subsection may not take effect until approved by the Secretary of Defense.
- (k) **Promotion Board Defined.—** In this section, the term “promotion board” means a [selection board](/usc/10/1558.md?p=b-2-A) convened by the Secretary of a military [department](/usc/10/101.md?p=a-6) under section [573(a)](/usc/10/573.md?p=a) or [611(a)](/usc/10/611.md?p=a) of this title.

## Source credit

(Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, 94 Stat. 2859; amended Pub. L. 98–525, title V, § 527(a), Oct. 19, 1984, 98 Stat. 2525; Pub. L. 102–190, div. A, title XI, § 1131(4), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 102–484, div. A, title X, § 1052(10), Oct. 23, 1992, 106 Stat. 2499; Pub. L. 105–261, div. A, title V, § 501(a)–(e), Oct. 17, 1998, 112 Stat. 2000–2002; Pub. L. 106–398, § 1 [[div. A], title X, § 1087(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–290; Pub. L. 107–107, div. A, title V, §§ 503(b), 505(c)(3)(A), Dec. 28, 2001, 115 Stat. 1083, 1088; Pub. L. 109–364, div. A, title V, § 514(a), Oct. 17, 2006, 120 Stat. 2185; Pub. L. 111–383, div. A, title V, § 503(b), Jan. 7, 2011, 124 Stat. 4208; Pub. L. 114–92, div. A, title V, § 502(c)(1), Nov. 25, 2015, 129 Stat. 807.)

## Notes

### Editorial Notes

### Amendments

2015—Subsec. (a)(1). Pub. L. 114–92 struck out “or the name of a person that should have been placed on an all-fully-qualified-officers list under section 624(a)(3) of this title was not so placed,” after “not so considered,”.

2011—Subsec. (c)(2). Pub. L. 111–383 substituted “sections 576(d), 576(f), and 613a” for “sections 576(d) and 576(f)”.

2006—Subsec. (a)(1). Pub. L. 109–364, § 514(a)(1), inserted “from in or above the promotion zone” after “for selection for promotion”.

Subsec. (b)(1)(A). Pub. L. 109–364, § 514(a)(2), inserted “in a matter material to the decision of the board” after “contrary to law”.

2001—Subsec. (a)(1). Pub. L. 107–107, § 505(c)(3)(A), inserted “or the name of a person that should have been placed on an all-fully-qualified-officers list under section 624(a)(3) of this title was not so placed,” after “not so considered,”.

Subsecs. (g) to (k). Pub. L. 107–107, § 503(b), added subsecs. (g) to (j) and redesignated former subsec. (g) as (k).

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, § 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, § 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, § 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, § 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, § 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, § 501(b)(3)(A), substituted “a person” for “an officer” and “the person” for “the officer”.

Subsec. (c). Pub. L. 105–261, § 501(c)(1)(A), inserted heading.

Subsec. (c)(1). Pub. L. 105–261, § 501(c)(1)(B), substituted “person” for “officer” in two places.

Subsec. (c)(2). Pub. L. 105–261, § 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, § 501(c)(2)(A), inserted heading.

Subsec. (d)(1). Pub. L. 105–261, § 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, § 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, § 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, § 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)”.

### Statutory Notes and Related Subsidiaries

### Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title V, § 514(c), Oct. 17, 2006, 120 Stat. 2185, provided that: “The amendments made by this section [amending this section and section 14502 of this title] shall take effect on March 1, 2007, and shall apply with respect to selection boards convened on or after that date.”

### Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title V, § 503(c), Dec. 28, 2001, 115 Stat. 1084, provided that: Except as provided in paragraph (2), the amendments made by this section [enacting section 1558 of this title and amending this section] shall apply with respect to any proceeding pending on or after the date of the enactment of this Act [Dec. 28, 2001] without regard to whether a challenge to an action of a selection board of any of the Armed Forces being considered in the proceeding was initiated before, on, or after that date. The amendments made by this section shall not apply with respect to any action commenced in a court of the United States before the date of the enactment of this Act.”

### 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.

### Effective Date

Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under section 101 of this title.

### Ratification of Codified Practice

Pub. L. 105–261, div. A, title V, § 501(f), Oct. 17, 1998, 112 Stat. 2002, provided that the consideration by a special selection board convened under this section before Oct. 17, 1998, of a person who, at the time of consideration, had been a retired officer or former officer of the Armed Forces (including a deceased retired or former officer) was ratified.

### Executive Documents

### 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, §§ 1(a), 3, Dec. 9, 1982, 47 F.R. 55897, 55898, set out as a note under section 301 of Title 3, The President.