DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

BJG
Docket No:  
15 August 2002

413502

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj:

RADM
REVIEW OF NAVAL RECORD

u s

Ref: (a)

Title 10 U.S.C. 1552

Encl:

(1)
(2)
(3)

DD Form 149 dtd 9 Apr 02 w/attachments
OJAG ltr dtd 30 Jul 02  
Subject’s naval record

w/encl

Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,

1.
filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be
corrected to change the date of rank and effective date of his promotion to the grade of rear
admiral, pay grade O-8, from 21 March 2002 to 6 October 2000; and that his lineal position
be adjusted accordingly. He also requested that his date of confirmation by the United States
Senate be changed to 6 October 2000. The Board did not consider this request, as they have
no jurisdiction concerning records of the Senate.

2. The Board, consisting of Messrs. Kastner, Schultz and Zsalman, reviewed Petitioner
allegations of error and injustice on 8 August 2002, and pursuant to its regulations,
determined that the corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.

’s

3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice, finds as follows:

’s allegations

a. Before applying to this Board, Petitioner exhausted all administrative remedies

available under existing law and regulations within the Department of the Navy.

b.

Petitioner’s promotion to rear admiral, which was scheduled for 6 October 2000,
was delayed because of a Naval Inspector General (NIG) investigation. The NIG found the
allegations against him to be unsubstantiated, and he was promoted to rear admiral on
6 March 2002.

In correspondence a&ached as enclosure  

(2), the Office of the Judge Advocate

C.

General has commented to the effect that Petitioner ’s request has merit and warrants

favorable action. They concluded that the failure to afford him the effective date of rank he
would have received, but for the delay of his promotion,
failure to comply with applicable statute.  
the Board’s authority to recommend the relief he seeks.

” They added that if this Board so finds, it is within

“...was error because it was a

 

CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the
contents of enclosure  
the requested relief. While they find the applicable statute mandates that Petitioner receive
the relief he seeks, enclosure (2) reflects the position that action by this Board is needed to
effectuate it. Accordingly, the Board directs the following corrective action:

(2), the Board finds the existence of an error and injustice warranting

RECOMMENDATION:

a. That Petitioner’s naval record be corrected, where appropriate, to show his date of
rank and effective date in the grade of rear admiral as 6 October 2000, vice 21 March 2002;
and that his lineal precedence be adjusted accordingly.

b. That any material or entries inconsistent with or relating to the Board

recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s
’s record and

C. That any material directed to be removed from Petitioner ’s naval record be returned

to the Board, together with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross reference being made a part of
Petitioner’s naval record.

4.
It is certified that a quorum was present at the Board
the foregoing is a true and complete record of the Board
matter.

’s review and
’s proceedings

deliberations, and that
in the above entitled

d A

A

JONATHAN S.  
Acting Recorder

,/z?z&

RUSKIN

ROBERT D. ZSALMAN
Recorder

2

5. The foregoing report of the Board is submitted for your review and action.

Reviewed and approved:

!,A

MWJoseph G. Lynch
Assistant General Counsel
(Manpower and Reserve Affairs)

DEPARTMENT OF THE NAVY
OF THE JUDGE ADVOCATE GENERAL
PAnERSON AVENUE SE
SlJlTE 

OFFICE 
1322 
WASHINGTON NAVY YARD DC 20374

 

3000
5066
 

140 0
Ser 
30 

Jul 0 2

13/1BC11674.02

From:
To:

Subj:

Ref:

Encl:

Deputy Assistant Judge Advocate General (Administrative Law)
Chairman, Board for Correction of Naval Records

REQU
RADM

RECOMMENDATION

USNR

SE OF

(a) Your ltr BJG Docket No 04135-02 of 16 May 02

(1) Legal Analysis

This responds to your reference (a) request for our comments

1.
and recommendation on subject case.

Issue.

Whether a Reserve flag officer whose Senate

2.
confirmation for promotion to rear admiral (O-8) is delayed pending
the results of an investigation and who is subsequently cleared in
the investigation, confirmed by the Senate for such promotion, and
promoted, is entitled to pay and allowances for that higher rank,
and credit for time in service in that grade, from the effective
date of rank he would have received, but for the delay?

Short answer.

3.
officer in such circumstances is entitled to correction of his date
of rank and backdated pay and allowances.

By specific operation of statute, an

Yes.

Discussion.

4.
of the central issue described above.

Enclosure (1) provides a detailed legal analysis

_t of contact for this matter is LCDR

Legal Analysis

Issue.

1.
Whether a Reserve flag officer
whose Senate
confirmation for promotion to rear admiral
(O-8) is delayed pending
the results of an investigation and who is
subsequently cleared in
the investigation, confirmed by the Senate for such promotion, and
promoted, is entitled to pay and allowances for that higher rank,
and credit for time in service in that grade, from the effective
date of rank he would have received, but for the delay?

Short Answer.

2.
officer in such circumstances is entitled to correction of his date
of rank and backdated pay and allowances.

By specific operation of statute, an

Yes.

Background.

The President approved the list of those so

The Fiscal Year 2001 Naval Reserve O-8 Engineering

3.
Duty Promotion Selection Board recommended that then-Rear Admiral
(Lower Half) Stephen S. Israel, USNR (Petitioner) be promoted to
Rear Admiral.
recommended for promotion on 19 December 1999.
subsequently forwarded Petitioner's nomination for promotion to the
Senate for confirmation,
promotion to O-8 of two other Reserve flag officers.
2000, the Naval Inspector General opened a Senior Official Case
against Petitioner, to inquire into allegations arising out of
Petitioner's one-year recall to Naval Sea Systems Command (NAVSEA)
in or about  

together with the nominations for

The President

On 15 June

1999.l

On 23 June 2000, the Office of the Secretary of Defense, on

pending completion of the

requested that the Senate take no action

The Naval Inspector General found the allegations

behalf of the President,
on Petitioner's nomination,
investigation.
against Petitioner to be unsubstantiated on or before 1 November
2001, whereupon the Secretary of the Navy recommended that the
Secretary of Defense endorse Petitioner's nomination to the Senate
for confirmation.
Defense recommended that the President approve Petitioner's
nomination.
The President did so, and Senate confirmed the
nomination on 21 March 2002.
The Bureau of Naval Personnel
thereupon issued Petitioner an effective date of rank for his
promotion to rear admiral (O-8).

On 21 December 2001, the Deputy Secretary of

Discussion.

\\ 

In his request for relief, Petitioner claims

[nlo formal involuntary delay of promotion

4.
that, although
proceedings were initiated in [his] case under 10 U.S.C.
14311(a) 
14311(a) (2) regarding date of rank,
involuntarily delayed under 10 U.S.C.  
law, however, 10 U.S.C.

14311 is directly applicable to

pay and allowances as if

"deserve[s]  the protections described in 10 U.S.C.

14311(a)(l)."

(2)", he

§ 

As a matter of

1 The allegations against Petitioner were as follows:
displayed Civil War pictures in his NAVSEA office that included depictions of the
confederate flag; and  
decision based on race and sex and as reprisal for a previous equal opportunity
complaint.

(2) that he discriminated against a civilian employee in a hiring

(1) That he is racist because he

petitioner's case and compels the relief he seeks, as set forth in
more detail below.'

a.

General Statutory and Regulatory Promotion Scheme for
Reserve Officers.

Under 10 U.S.C. 

(1) The Promotion List.

Congress has established a
codified in title
s 14308(a), service secretaries are

statutory promotion scheme for Reserve officers,
10, U.S. Code.
required to place all officers approved by the President for
promotion within a competitive category
competitive category,
of seniority of those officers on the reserve active-status  
Further, "except as provided in section 14311, 14312, or 14502(e)
of this title or in subsection (d) or  
(e)",4 the statute requires
that Reserve officers on a promotion list for a competitive
category be promoted
"in the order in which the names of officers
appear on the promotion list and after officers previously selected
for promotion in that competitive category have been promoted."'

"on a single list for that
to be known as a promotion list, in the order
list.'13

(2) Appointments.

The promotion of a military officer is

Language throughout title 10 of
"appointment to a higher

Code denotes a "promotion" as an
The legal effects of an appointment and the steps

an appointment to a higher grade.
the U.S.
grade."
necessary to make such an
the Supreme Court decided
e
Court held that there are
to
effect an appointment.
"is the
sole act of the President;" the appointment,
of the President "performed by and with the advice and consent of
the Senate;" and, the commission,
providing evidence of the  
effective when the President has performed the  
done. 

appointment.7 An appointment is only
"last act to be

n well settled since
t

These are: the nomination, which  

which may be considered as

which is also the act

I’*

(3) Date of Rank.

In 10 U.S.C.  

§ 14308(c), Congress

§ 14308(a).

* Petitioner's assertion apparently stems from a misreading of the statutory scheme.
footnote 17, infra. Of course, our disagreement with his assertion here has no effect on
the outcome from his perspective, as we agree with him that relief is warranted.
' 10 U.S.C. 
’ Section 14312 deals with voluntary delays in promotion,
the promotion of officers selected by 
applies here.
applies,
officers to fill vacancies.
here.
question, as discussed in detail below.
' 10 U.S.C. 

Subsection 14308(d) refers to officers to whom a running mate system
and subsection 14308(e) governs the promotion of Army and Air Force Reserve

Section 14311 covers involuntary delays in promotion, and is central to the

Neither subsection has a bearing on the question presented

special promotion selection boards.

and section 14502(e) deals with

§ 14308(b) (2).

Neither case

See

U.S. 137 (1803).

.

' Id. at 155-6.
* Id. at 157.

requires  Reserve officer dates of rank to be "determined under"
10 U.S.C.
officer who holds a grade as the result of a promotion is the date
of his appointment to that grade."
[emphasis supplied]. This is
subject to statutory exception.

(2), which provides that "the date of rank of an

741(d) 

§ 

(4) Delays and Retroactive Appointments. Congress

Congress

"[ulnder  regulations prescribed

concerned,"'  Congress

0fficers.l'

 

5 14311. By

as discussed above,

This comprises the process of

the creation of a promotion list.

Most important for this analysis,

The foundation for this appointment process

which cannot exist without each of its essential

specifically authorizes retroactive appointments of Reserve
officers in certain circumstances, per 10 U.S.C.
allowing appointments to be delayed
by the Secretary of the military department  
has, in effect, made the service secretaries agents of the
President for the appointing of Reserve military officers, as it
has, via a separate statutory provision, in the case of regular
military 
is,
mandates that the promotion list be created by the secretary
concerned upon approval of the selection board's report by the
President.ll
Appointments are then made from that list in the
order prescribed by law.
appointment,
parts.
place without the promotion list.
name is part of a promotion list created under 10 U.S.C.
 
and 14308, any action which.has the effect of delaying that
officer's appointment -- i.e., that officer's promotion -- for
reasons permitted under 10 U.S.C.
their provisions.
include the requirement that,
substantiated or if dispositive action is not otherwise taken,
officer shall be retained on the promotion list
. or list of
officers nominated by the President to the Senate for appointment
in a higher reserve grade and shall,
upon promotion to the next
higher grade,
for the pay allowances of the grade to which promoted, and the same
position on the reserve active-status list as the officer would
have had if no delay had intervened", unless the secretary
concerned determines that the officer is unqualified for promotion
for any part of the  

the process cannot take
Thus, once a Reserve officer's
§§ 14101

have the same date of rank, the same effective date

Of key importance here is that these provisions

if the reasons for delay are not

§ 14311(a) or  

(b) must invoke

delay-l2

 

. . 

"the

b.

Analysis of Petitioner's Claim

(1) Summary Review of Facts.

The selection board report

recommending Petitioner for promotion to O-8, which was made
pursuant to 10 U.S.C.
December 1999.
Petitioner's name on the promotion list described in and required

At that time, the Secretary of the Navy placed

§ 14108, was approved by the President on 19

’ 10  U.S.C. 
lo See 10 U.S.C. 

5 14311(a) and  

(b).

§ 624(d).

§ 14311  

W

I1 See 10 U.S.C.  
I2 10 U.S.C. 

8 14311(a) 

(a), 14111(a).
(2); see also 

8 14311(b) 

(2)

3

5 

14308(a).13

Subsequently, pending the results of
by 10 U.S.C.  
the Senior Officer Case opened by the Naval Inspector General to
inquire into allegations against Petitioner, the Secretary of
Defense requested that the Senate take no action on Petitioner's
nomination.
unsubstantiated, the President approved Petitioner's nomination,
which the Senate confirmed.
of rank as rear admiral of 22 March 2002.
absent the delay, his effective date of rank would have been
6 October 

After the Inspector General found the allegation to be

Petitioner received an effective date

According to Petitioner,

2000.14

apply.15

14311(a)  and (b)  

(2) Application of Law. Because Petitioner's appointment
was delayed pending a Naval Inspector General investiqation after
he was placed on a promotion list,
TO U.S.C.
§ 
By operation of one or both of these
provisions,
 
or list of officers nominated by the President to the Senate for
appointment in a higher reserve grade",
investigation and attendant  
review were completed without further action,
provisions required that, upon promotion, Petitioner be given the
effective date of rank he would have received, but for the

Petitioner was retained on "the promotion list

Once the investigation and

the provisions of  

the statutory

review.16

pending the outcome of the

delay.17

. . 

.

 

lz The record supplied by Petitioner confirms this.
It includes a memorandum from the
Secretary of the Navy to the Assistant Secretary of Defense that notes that, on 20 June
2000, Petitioner's name was before the Senate for confirmation. Petitioner's name would
have had to be on a promotion list for that to occur.
04135-02.
I4 Id.

See Petition, BCNR Docket No.

I5 A Naval Inspector General investigation into allegations of discrimination clearly
invokes the possibility of discipline.
implications concerning the subject's moral or professional fitness to serve in the
higher grade to which selected.
(b) are triggered.

Thus, the provisions of both 10 U.S.C.  

In addition, there can be no doubt that it raises

14311(a)  and

§ 

5 14311(a)(2) and  

I6 See 10 U.S.C. 
neither the promotion list nor the list of approved nominations. Rather, it was variously
described in various Executive Branch memoranda as "on hold", "inactive", "returned". See
documents attached to Petitioner's petition, BCNR Docket No. 04135-02. See  also the
discussion at footnote   17, infra.

(b). Note that Petitioner's name was removed from

On the contrary, this legal

Petitioner's assertion may be based on a

"[n]o formal involuntary delay of promotion

I7 As noted above, Petitioner states that
proceedings were initiated in my case under 10 USC 14322(a) (1).
However, I deserve the
protections described in 10 USC 14311(a) (2) regarding date of rank, pay and allowances as
if involuntarily delayed under 10 USC 14311(a) (1) [sic]".
analysis demonstrates that the actions taken in the record constituted sufficient
"formal" process to invoke the provision.
misreading of the statutory scheme.
mandates creation of the promotion list once the President has approved the selection
board report under 10 U.S.C. 
"[olfficers  on a promotion list for a competitive category shall be promoted in the
manner specified in section 12203 of this title."
provides in relevant part that
above lieutenant colonel and commander shall be made by the President, by and with the
advice and consent of the Senate [except as provided in provisions not relevant here]."
. Petitioner may be misconstruing these sections together to provide
10 
that the promotion list, upon which the applicability of  
§ 14311 depends, does not exist
for officers whose appointments require the advice and consent of the Senate until their
nominations receive such approval.
On the contrary, by the plain language of 10 U.S.C.
5 14308(b) 
including Senatorial advice and consent, occurs  
when there is a promotion list.

"[alppointments of reserve officers in commissioned grades

It is noteworthy that, while 10 U.S.C. 

[emphasis supplied] In turn, 

§ 14101(a), 10 U.S.C. 

(11, action under 

(1) provides that

8 14308(b) 

8 14308(a)

5 12203,

I 12203

U . S . C 

§ 12203(a)

only

4

(3) Corrective Authority.

The failure to afford Petitioner
the effective date of rank he would have received but for the delay
was error because it was a failure to comply with applicable
statute.
finds, it is reasonably within the Board's  
the corrective action Petitioner seeks.

If the Board for the Correction of Naval Records so

authorityl' to recommend

C .

Conclusion.

an officer's appointment after that

officer has been placed on a promotion list under 10 U.S.C.
5 14308(a) invokes the provisions of 10 U.S.C.  
require that the officer be given a back-dated date of rank unless
the Secretary of the Navy determines he was unqualified for all or
a period of the delay.
characterization; therefore,
requests.

Petitioner's circumstances fall within this

he is entitled to the relief he

§ 14311, which

.

'* See 10 U.S.C. 

§ 1552.