finding that the Secretary’s rejec- tion of the BCNR’s recommendation was unjustified, where the Board’s recommendation was supported by the record Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022 12 NICELY v. US and the Secretary instead chose to follow the advice of an active duty naval officer
How later courts described this case
- finding that the Secretary’s rejec- tion of the BCNR’s recommendation was unjustified, where the Board’s recommendation was supported by the record Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022 12 NICELY v. US and the Secretary instead chose to follow the advice of an active duty naval officer
- explaining that “[t]he thrust of the Proper opinion is that a Secretary of a military department cannot overrule the recommendations of a civilian correction board on the advice of a military officer unless the findings of the board are not justified by the record before it.”
- finding that Navy selection board statute’s reference to “records” embodied Congressional purpose that these records “be complete and not misleading,” citing the former 10 U.S.C. § 5706 (repealed 1980)
- placing before a promotion board incomplete documents that are prejudicial in nature cannot fairly portray an officer’s record which constitutes a clear violation of statute, to wit, 10 U.S.C. §§ 576 and 615, formerly § 5706
Written by the judges who cited it.
The opinion
DAVIS, Judge
(concurring):
I join in the court’s opinion but would go further and hold explicitly that the Selection Board’s action was invalid because it did not have the proper statutory “record” before it. Also, I wish to reserve expressly (the court’s opinion does so implicitly, I believe) the question whether a Correction Board proceeding can ever “cure” a defective Selection Board determination in the sense that the Secretary could decide — as a result of a Correction Board proceeding which was free from the defects of the Selection Board — that the officer had been properly “selected out.” The statute seems on its face to give this particular “selecting out” power to a Selection Board, not. the Secretary, and it may be doubted that an officer can ever be so separated except by the valid action of a Selection Board.
COLLINS, Judge, concurs in the result only.