B-198516 L/M, JUL 25, 1980

B-198516 L/M, JUL 25, 1980

PRECIS-UNAVAILABLE

JOSEPH L. FISHER, UNITED STATES HOUSE OF REPRESENTATIVES:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 10, 1980, WITH ENCLOSURES, REQUESTING A REPORT ON MATTERS MENTIONED IN CORRESPONDENCE YOU HAVE RECEIVED FROM YOUR CONSTITUENT, REAR ADMIRAL PENROSE LUCAS ALBRIGHT, USNR, WHO UNTIL RECENTLY WAS THE DIRECTOR OF THE NAVAL RESERVE LAW PROGRAMS, AND WHO EXPRESSES CONCERN ABOUT THE PROCEDURES USED TO SELECT HIS SUCCESSOR.

ON MAY 1, 1980, ADMIRAL ALBRIGHT COMPLETED A 4-YEAR TERM IN OFFICE AS THE DIRECTOR OF THE NAVAL RESERVE LAW PROGRAMS AND WAS SUCCEEDED BY REAR ADMIRAL - SELECT JULIAN BENJAMIN, USNR. 10 U.S.C. 5457(A), PROVIDES THAT THERE SHALL BE ONLY 1 NAVAL RESERVE OFFICER OF THE JUDGE ADVOCATE GENERAL'S CORPS IN AN ACTIVE STATUS IN THE GRADE OF REAR ADMIRAL. ADMIRAL BENJAMIN WAS CHOSEN FROM ABOUT 30 CANDIDATES TO SUCCEED ADMIRAL ALBRIGHT AND WAS RECOMMENDED TO RECEIVE THE PROMOTION FROM CAPTAIN TO REAR ADMIRAL BY A NAVY SELECTION BOARD CONVENED ON OCTOBER 29, 1979.

IN HIS CORRESPONDENCE WITH YOU, ADMIRAL ALBRIGHT QUESTIONS WHETHER THE SELECTION BOARD CONVENED ON OCTOBER 29, 1979, WAS LEGALLY CONSTITUTED WITH RESPECT TO ITS MEMBERSHIP. THE 5 MEMBERS OF THE BOARD INCLUDED THE JUDGE ADVOCATE GENERAL OF THE NAVY, AND 3 NAVAL RESERVE LINE OFFICERS. ADMIRAL ALBRIGHT WAS NOT A MEMBER OF THAT BOARD. HE EXPRESSES CERTAIN RESERVATIONS ABOUT THE PROPRIETY OF THE ACTION TAKEN TO EXCLUDE HIM - AND TO INCLUDE THE JUDGE ADVOCATE GENERAL OF THE NAVY WHEN APPOINTMENTS TO MEMBERSHIP ON THE SELECTION BOARD WERE MADE.

ADMIRAL ALBRIGHT QUESTIONS WHETHER HE PERSONALLY WAS REQUIRED BY LAW TO BE A MEMBER OF THE SELECTION BOARD, SINCE HE WAS THE ONLY RESERVE REAR ADMIRAL OF THE NAVY JUDGE ADVOCATE GENERAL'S CORPS AVAILABLE FOR BOARD MEMBERSHIP. IN THAT CONNECTION, HE NOTES THAT 10 U.S.C. 5893 GOVERNS THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER NAVY RESERVE OFFICERS FOR PROMOTION, AND IT PROVIDES THAT AT LEAST HALF OF THE MEMBERS OF EACH SELECTION BOARD "MUST BE RESERVE OFFICERS SO FAR AS PRACTICABLE." HE ALSO NOTES THAT 10 U.S.C. 5702, GOVERNS THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER STAFF CORPS OFFICERS ON THE ACTIVE LIST FOR PROMOTION, AND THAT PROVISION OF LAW DIRECTS THAT A BOARD CONVENED TO CONSIDER OFFICERS OF THE JUDGE ADVOCATE GENERAL'S CORPS "SHALL CONSIST OF OFFICERS IN THE CORPS," EXCEPT WHEN THERE IS AN INSUFFICIENT NUMBER OF STAFF CORPS OFFICERS "LEGALLY AND PHYSICALLY QUALIFIED" TO SERVE ON A BOARD. ALTHOUGH 10 U.S.C. 5702 PERTAINS TO THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER ACTIVE DUTY AND NOT RESERVE OFFICERS, ADMIRAL ALBRIGHT POINTS OUT THAT SECTION 403 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, CODIFIED AS 50 U.S.C. 1303 (1952 ED., SUPP. II 1955), PROVIDED IN PART THAT "THE LAW *** RELATING TO SELECTION FOR PROMOTION OF AN OFFICER OF THE CORRESPONDING REGULAR COMPONENT SHALL APPLY TO AN OFFICER OF THE CORRESPONDING RESERVE COMPONENT ***." HE NOTES THAT SECTION 403 WAS SUPERSEDED BY PUBLIC LAW 85-861, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1437, AND THAT THE QUOTED STATUTORY LANGUAGE DOES NOT NOW APPEAR IN THE UNITED STATES CODE. HOWEVER, HE STATES THAT THE PURPOSE OF PUBLIC LAW 85-861 WAS TO RECODIFY AND RESTATE CERTAIN PROVISIONS OF MILITARY LAW, INCLUDING THE RESERVE OFFICER PERSONNEL ACT OF 1954, AND HE NOTES THAT SECTION 34 OF PUBLIC LAW 85-861 CONTAINS THE FOLLOWING SAVINGS CLAUSE:

"*** IT IS THE LEGISLATIVE PURPOSE TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAW REPLACED BY THOSE SECTIONS ON THE EFFECTIVE DATE OF THIS ACT. ***"

ADMIRAL ALBRIGHT THEREFORE SUGGESTS THAT SECTION 403 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 HAS BEEN RETAINED BY REFERENCE IN CURRENT LAW, AND THE FAILURE TO INCLUDE IT IN THE CURRENT CODIFICATION IS THE RESULT OF MISTAKE OR OVERSIGHT. HE ALSO SUGGESTS THAT IF SECTION 403 IS STILL IN FORCE AND EFFECT, THEN THE PROVISIONS OF 10 U.S.C. 5702 RELATING TO THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER ACTIVE DUTY OFFICERS FOR PROMOTION MIGHT ALSO BE FOR APPLICATION TO THE COMPOSITION OF BOARDS CONVENED TO CONSIDER RESERVE OFFICERS. IN THAT EVENT, HE SUGGESTS, THE PROVISIONS OF 10 U.S.C. 5893 (REQUIRING AT LEAST HALF OF THE BOARD MEMBERS BE RESERVE OFFICERS) COUPLED WITH THOSE OF 10 U.S.C. 5702 (REQUIRING THAT JUDGE ADVOCATE GENERAL'S CORPS SELECTION BOARDS CONSIST OF CORPS OFFICERS UNLESS THERE IS AN INSUFFICIENT NUMBER OF SUCH OFFICERS "LEGALLY AND PHYSICALLY QUALIFIED" TO SERVE), MANDATED THAT HE BE APPOINTED TO MEMBERSHIP ON THE OCTOBER 29, 1979 SELECTION BOARD UNLESS HE WAS PROPERLY DETERMINED TO BE LEGALLY OR PHYSICALLY UNQUALIFIED TO SERVE, SINCE HE WAS THE ONLY NAVY REAR ADMIRAL AVAILABLE WHO WAS BOTH A RESERVIST AND A MEMBER OF THE JUDGE ADVOCATE GENERAL'S CORPS. HE THEREFORE QUESTIONS WHETHER IT WAS LEGALLY PERMISSIBLE TO EXCLUDE HIM FROM MEMBERSHIP ON THE BOARD CONVENED TO SELECT HIS SUCCESSOR TO THE POSITION OF DIRECTOR, NAVAL RESERVE LAW PROGRAMS.

ADMIRAL ALBRIGHT ALSO QUESTIONS WHETHER THE JUDGE ADVOCATE GENERAL WAS LEGALLY ELIGIBLE TO SERVE AS A MEMBER OF THE OCTOBER 29, 1979 SELECTION BOARD. HE NOTES THAT 10 U.S.C. 5893 REQUIRES ALL BOARD MEMBERS BE SERVING IN A "GRADE" ABOVE THE GRADE IN WHICH OFFICERS TO BE CONSIDERED BY THE BOARD ARE SERVING. HE ALSO NOTES THAT UNDER THE PROVISIONS OF 10 U.S.C. 5148, THE INDIVIDUAL APPOINTED TO THE "OFFICE" OF JUDGE ADVOCATE GENERAL IS GIVEN THE "RANK" BUT NOT THE "GRADE" OF REAR ADMIRAL. IN THAT CONNECTION, HE NOTES FURTHER THAT THE TERMS "RANK," "GRADE," AND "OFFICE" HAVE IN THE PAST BEEN DISTINGUISHED IN SEVERAL OPINIONS RENDERED BY THE ATTORNEY GENERAL AND THE FEDERAL COURTS.

HE INDICATES THAT EVEN THOUGH THE LAW ENTITLED THE JUDGE ADVOCATE GENERAL TO THE "RANK" OF REAR ADMIRAL BY VIRTUE OF THE "OFFICE" THAT HE HELD, HIS COMMISSIONED "GRADE" WAS ACTUALLY THAT OF A CAPTAIN. THEREFORE HE QUESTIONS WHETHER THE JUDGE ADVOCATE GENERAL WAS LEGALLY ELIGIBLE TO SIT ON A SELECTION BOARD CONVENED TO CONSIDER CAPTAINS FOR PROMOTION TO REAR ADMIRAL.

SECTION 5893 OF TITLE 10, U.S.C. GOVERNS THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER CAPTAINS OF THE NAVAL RESERVE FOR PROMOTION. IT PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) THE SECRETARY OF THE NAVY, OR SUCH OTHER AUTHORITY AS HE DIRECTS, SHALL APPOINT AND CONVENE SELECTION BOARDS, EACH CONSISTING OF AT LEAST FIVE OFFICERS, TO CONSIDER FOR PROMOTION TO THE NEXT HIGHER GRADE -

"(1) OFFICERS OF THE NAVAL RESERVE IN EACH GRADE ABOVE ENSIGN AND BELOW REAR ADMIRAL; AND

"(2) OFFICERS OF THE MARINE CORPS RESERVE IN EACH GRADE ABOVE SECOND LIEUTENANT AND BELOW MAJOR GENERAL.

"(B) AT LEAST HALF OF THE MEMBERS OF EACH SELECTION BOARD CONVENED UNDER THIS SECTION MUST BE RESERVE OFFICERS SO FAR AS PRACTICABLE. ALL MEMBERS OF EACH BOARD MUST BE SERVING IN A GRADE ABOVE THE GRADE IN WHICH THE OFFICERS THAT ARE TO BE CONSIDERED BY THE BOARD ARE SERVING. ***"

WITH REGARD TO THE QUESTION RAISED AS TO WHETHER ADMIRAL ALBRIGHT WAS REQUIRED BY LAW TO BE APPOINTED TO THE OCTOBER 29, 1979 SELECTION BOARD BECAUSE HE WAS THE ONLY RESERVE REAR ADMIRAL OF THE NAVY JUDGE ADVOCATE GENERAL'S CORPS AVAILABLE FOR BOARD MEMBERSHIP, THE ABOVE QUOTED LANGUAGE OF 10 U.S.C. 5893 PLAINLY DID NOT MANDATE HIS APPOINTMENT FOR THAT REASON. HOWEVER, AS ADMIRAL ALBRIGHT HAS NOTED, THE PROVISIONS OF 10 U.S.C. 5702, WHICH CONCERN THE COMPOSITION OF SELECTION BOARDS CONVENED TO CONSIDER STAFF CORPS OFFICERS ON THE ACTIVE LIST FOR PROMOTION, DO REQUIRE THAT A BOARD CONVENED TO CONSIDER OFFICERS OF THE JUDGE ADVOCATE GENERAL'S CORPS "SHALL CONSIST OF OFFICERS IN THE CORPS" EXCEPT WHEN THERE IS AN INSUFFICIENT NUMBER OF STAFF CORPS OFFICERS "LEGALLY AND PHYSICALLY QUALIFIED" TO SERVE ON A BOARD. THE ISSUE THUS PRESENTED IS WHETHER THE PROVISIONS OF 10 U.S.C. 5702, WHICH PERTAIN TO THE COMPOSITION OF PROMOTION BOARDS FOR ACTIVE DUTY STAFF CORPS OFFICERS, ARE FOR APPLICATION TO RESERVE OFFICER PROMOTION BOARDS CONVENED UNDER 10 U.S.C. 5893, AND IF SO, WHETHER ADMIRAL ALBRIGHT WAS LAWFULLY EXCLUDED FROM MEMBERSHIP ON THE OCTOBER 29, 1979 JUDGE ADVOCATE GENERAL'S CORPS RESERVE OFFICER PROMOTION BOARD ON THE BASIS OF A VALID DETERMINATION THAT HE WAS LEGALLY OR PHYSICALLY UNQUALIFIED TO SERVE.

SECTION 403 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954 PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE LAW NOW EXISTING OR HEREAFTER ENACTED RELATING TO THE SELECTION FOR PROMOTION OF AN OFFICER OF THE CORRESPONDING REGULAR COMPONENT SHALL APPLY TO AN OFFICER OF THE RESERVE COMPONENT, EXCEPT AS OTHERWISE PROVIDED IN THIS CHAPTER OR EXCEPT AS MAY BE NECESSARY, IN THE DISCRETION OF THE SECRETARY, TO ADAPT SUCH PROVISIONS TO THE RESERVE COMPONENT."

THIS SECTION OF THE U.S.C. WAS REPEALED BY THE EXPRESS TERMS OF SECTION 36 OF PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1437, 1568 1571, SO THAT IT IS QUESTIONABLE WHETHER ITS OMISSION FROM THE CURRENT VERSION OF THE U.S.C. WAS THE RESULT OF MISTAKE OR OVERSIGHT. IN ANY EVENT, TO THE EXTENT THAT SECTION 403 MIGHT BE REGARDED AS STILL HAVING FORCE OR EFFECT, IT WOULD NOT COVER RESERVE PROMOTION PROCEDURES "OTHERWISE PROVIDED" FOR BY LAW. THE LEGISLATIVE HISTORY OF SECTION 403 CLEARLY SHOWS THAT IT WAS INTENDED TO COVER SUCH MATTERS AS PROMOTION ZONES, THE FORM OF SELECTION BOARD REPORTS, ETC., MATTERS WHICH WERE THEN NOT SPECIFICALLY PROVIDED FOR BY LAW FOR NAVAL RESERVE OFFICERS. IT WAS NOT INTENDED TO CONTROL THE COMPOSITION OF RESERVE OFFICER SELECTION BOARDS, WHICH WAS A MATTER OTHERWISE EXPRESSLY PROVIDED FOR BY SECTION 203 OF THE RESERVE OFFICER PERSONNEL ACT OF 1954, THE FORERUNNER OF 10 U.S.C. 5893. SEE SENATE REPORT NO. 2010, JULY 29, 1954. IT IS OUR VIEW THAT THE PROVISIONS OF 10 U.S.C. 5702 CONCERNING THE COMPOSITION OF ACTIVE DUTY OFFICER SELECTION BOARDS ARE NOT FOR APPLICATION TO RESERVE OFFICER SELECTION BOARDS CONVENED UNDER THE AUTHORITY OF 10 U.S.C. 5893, AND CONSEQUENTLY A VALID DETERMINATION THAT ADMIRAL ALBRIGHT WAS LEGALLY OR PHYSICALLY UNQUALIFIED TO SERVE WAS NOT A NECESSARY PREREQUISITE FOR HIS EXCLUSION FROM THE OCTOBER 29, 1979 SELECTION BOARD.

WITH RESPECT TO THE QUESTION POSED CONCERNING THE ELIGIBILITY OF THE JUDGE ADVOCATE GENERAL OF THE NAVY TO BE A MEMBER OF THE OCTOBER 29, 1979 SELECTION BOARD, 10 U.S.C. 5893(B) REQUIRED THAT HE MUST HAVE BEEN "SERVING IN A GRADE" ABOVE THAT OF THE CAPTAINS BEING CONSIDERED FOR PROMOTION. THE NOUN "GRADE" IS USED WITHOUT QUALIFYING OR DEFINITIVE ADJECTIVE. STATUTORY LAW EXPRESSLY PROVIDES THAT AN OFFICER SERVING AS THE JUDGE ADVOCATE GENERAL HAS THE "RANK" AND PAY "GRADE" OF REAR ADMIRAL, 0-8, UNLESS APPOINTED TO A HIGHER GRADE UNDER ANOTHER PROVISION OF LAW. SEE 10 U.S.C. 5133, 5148; 37 U.S.C. 201, 202. WE RECOGNIZE THAT THE TERMS "RANK," "GRADE," AND "OFFICE," WHILE SOMETIMES USED SYNONYMOUSLY IN STATUTORY AND COMMON PARLANCE, MAY HAVE SIGNIFICANTLY DIFFERENT MEANINGS DEPENDING UPON THE PARTICULAR CONTEXT IN WHICH THEY ARE EMPLOYED. WE ALSO RECOGNIZE THAT THE PERMANENT RANK AND COMMISSIONED GRADE OF THE INDIVIDUAL SERVING IN THE OFFICE OF JUDGE ADVOCATE GENERAL MAY HAVE BEEN BELOW THAT OF REAR ADMIRAL. HOWEVER, WE FIND IT UNNECESSARY TO DISCUSS THOSE MATTERS FURTHER HERE. IN OUR VIEW, THE CITED PROVISIONS OF LAW EXPRESSLY CONFERRING THE RANK AND GRADE OF REAR ADMIRAL, 0-8, UPON THE INDIVIDUAL SERVING IN THE OFFICE OF JUDGE ADVOCATE GENERAL PLAINLY MADE THAT INDIVIDUAL ELIGIBLE TO BE A MEMBER OF A SELECTION BOARD CONVENED UNDER 10 U.S.C. 5893 TO CONSIDER FOR PROMOTION OFFICERS SERVING IN THE LOWER RANK AND GRADE OF CAPTAIN, 0-6.

IN ADDITION, ADMIRAL ALBRIGHT QUESTIONS WHETHER THE FITNESS REPORTS DESCRIBING THE RECORD OF SERVICE OF HIS SUCCESSOR, ADMIRAL BENJAMIN, WERE IMPROPERLY PREPARED, AND IF SO, WHETHER THOSE REPORTS REFLECTING OUTSTANDING SERVICE WERE SUFFICIENTLY PREJUDICIAL TO THE OTHER CANDIDATES FOR PROMOTION AS TO INVALIDATE THE SELECTION BOARD'S ACTION. WE HAVE LEARNED THAT THIS SAME ISSUE WAS THE SUBJECT OF AN INVESTIGATION CONDUCTED AT THE INSTANCE OF ADMIRAL ALBRIGHT BY THE OFFICE OF THE INSPECTOR GENERAL OF THE NAVY. THE INSPECTOR GENERAL FUNCTIONS INDEPENDENTLY OF THE NAVY JUDGE ADVOCATE GENERAL'S CORPS, AND THE INVESTIGATION RESULTED IN FINDINGS THAT ADMIRAL BENJAMIN'S FITNESS REPORTS WERE PROPER AND VALID. WE HAVE NO REASON TO MAKE FURTHER INQUIRY CONCERNING THIS ISSUE.

IN SUMMARY, WE HAVE NO BASIS FOR CONCLUDING THAT THE PROCEDURES USED TO SELECT ADMIRAL ALBRIGHT'S SUCCESSOR WERE UNLAWFUL OR THAT THE INDIVIDUAL SELECTED WAS OTHERWISE UNQUALIFIED FOR PROMOTION.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR REQUEST.

DIGEST

IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT A NAVY REAR ADMIRAL'S SELECTION BOARD WAS ILLEGALLY CONSTITUTED, OR THAT THE INDIVIDUAL SELECTED WAS UNQUALIFIED FOR PROMOTION, GAO WILL NOT ACT ON COMPLAINT THAT IMPROPRIETIES WERE INVOLVED IN THE INDIVIDUAL'S PROMOTION FROM CAPTAIN TO REAR ADMIRAL, PARTICULARLY WHERE GAO'S PRELIMINARY INQUIRY ESTABLISHED THAT NAVY SECRETARY PERSONALLY APPOINTED SELECTION BOARD MEMBERS AND INDEPENDENT NAVY IG INVESTIGATION FOUND THE SELECTEE QUALIFIED FOR APPOINTMENT TO REAR ADMIRAL.