Most military officers' careers progress according to well-known rules. For example, good performance is rewarded by favorable fitness reports, command assignments, special educational opportunities, and—above all—promotion. The other side of the ledger is less familiar, because most officers' records are without serious blemishes and their careers suffer only as a result of competitive pressures in the up-or-out promotion system.
Courts-martial for officers remain rare, but misconduct can lead to mast or office hours, with career-damaging penalties such as letters of reprimand. Administrative sanctions can come in the form of a special fitness report, transfer, or detachment for cause. Removal from a promotion list can have more devastating emotional consequences because it is a clear example of "so near, yet so far." Although promotion delays and removals occur yearly, the processes remain largely unknown because they typically unfold out of the public eye.
|The Navy Department's process for fairly resolving promotion delays and removals needs a fresh look.
The governing rules are found in title 10, U.S. Code, sections 624(d) and 629, and Secretary of the Navy Instruction 1420.1A. A promotion may be delayed for a variety of reasons, including—but not limited to—pending disciplinary or civilian court action. Strict procedures are prescribed to ensure fair treatment. Thus, an officer normally must be given written notice that a promotion is being delayed (along with the reasons) before its effective date. Promotions can be delayed only for a finite period—in any event, no longer than 18 months. An officer's name can be removed from a promotion list despite Senate confirmation of nomination to the higher grade. Most painfully, removal of an officer's name from a promotion list transforms the selection into a "pass over."
Promotion delays and removals remain a potent source of unfairness that can lead to applications to the Board for Correction of Naval Records (BCNR) and lawsuits. Having handled a number of these cases, it is my impression the Navy Department has a higher incidence of failing to comply with applicable law than the other military departments. Relief in delay and removal cases can be obtained either by overturning the underlying problem—such as a letter of reprimand—or by attacking the delay or removal itself. One argument is that, once a statutory deadline has passed or some other requirement of section 624(d) has been violated, the officer is deemed to have been promoted by operation of law.
It also has been argued that procedural errors in the delay or removal processes can constitute an error or injustice that the BCNR can remedy. The board has granted relief on this basis, but its decisions are not reconciled easily. Although one officer had received a letter of reprimand, his promotion was permitted to go through because section 624(d) had been violated. In another case, the fact that an officer had received such a letter was itself relied on as the basis for refusing to direct promotion, despite a violation of section 624(d). These disparate outcomes are indefensible. There is no excuse for the continuing failure to abide by modest procedural requirements—nor should Navy and Marine Corps officers have to sue to secure the protection afforded by the statute.
Even if the BCNR refuses to acquiesce in cases that hold that violation of the deadlines leads to promotion by operation of law, it should make a greater effort to reconcile its decisions. It also should abandon the recently announced notion that any shortcoming that sparks a promotion delay or removal can constitute "unclean hands" and thus deprive an officer of the benefit of section 624(d).
Officers hardly need to be reminded to continue the kind of performance that got them on the promotion list. If the unthinkable happens, however, and some event gives rise to promotion delay or removal, they must assert their rights aggressively to ensure the system functions fairly. In addition, officers selected for promotion normally will have solid allies—in and out of the chain of command—on whom they should not hesitate to call for support and assistance.
The Navy Department's process for fairly resolving promotion delays and removals needs a fresh look. Navy and Marine leaders, the BCNR, and the officer corps have compelling interests in making it function better.
Eugene Fidell served as a Coast Guard law specialist from 1969 to 1972. He heads the military practice group at the Washington law firm of Feldesman Tucker Leifer Fidell LLP.