Bill would end officer’s promotion limbo

By Tom Philpott: Military Update

The Senate 16 years ago refused to confirm a naval officer’s promotion to captain because of what investigators described as his “peripheral role in the Iran/Contra matter.”

The officer had influential supporters and friends. He remains on active duty even today because the Navy keeps his name on its O-6 promotion list. This promotion list status has insulated the officer from force drawdowns, from selective early retirement boards, even from mandatory retirement set in law for O-5s at 28 years of service.

The officer, whom a Senate staffer declined to name, is said to have a Lou Gehrig-like streak going, not for consecutive ballgames played but for consecutive years served in same rank. The Senate Armed Services Committee, one observer quipped, doesn’t want one day to see some Cal Ripken-like figure surpass that streak after their own blocked promotion.

To avoid it, the Senate committee has voted to change officer promotion law to require the services to remove from promotion lists, after one year, the name of any officers whom the Senate has refused to confirm for higher rank. The provision is one of several to clarify officer promotion practices included in the Senate committee’s version of the 2007 defense authorization bill. Floor debate on the bill is expected to begin in mid-June.

The officer promotion changes, say committee staff, will iron out subtle variations across the services in the way they screen officers for promotion, delay promotions when adverse information surfaces, and remove — or refuse to remove — names from promotion lists, before and after Senate consideration.

The committee changes, if adopted by the full Congress, would amend both the Defense Officer Personnel Management Act (DOPMA) for active duty officers and the Reserve Officer Personnel Management Act (ROPMA) which governs Reserve and Guard officer promotions.

Defense officials who oversee officer promotion policy said in a statement that they are studying the Senate ideas and “look forward to working with Congress on fine-tuning their proposals.”

The change most likely to raise eyebrows, at the Pentagon and perhaps the White House, would require automatic removal of officer names from a promotion list 365 days after the Senate declines to recommend promotion. That year’s delay would provide “ample opportunity for review of adverse or potentially adverse information,” according to the committee report on its defense bill.

The committee seeks to end “limbo status” for officers who otherwise can stay on “a promotion list for protracted, indefinite periods.”

Service leaders no longer should view as “acceptable” the shielding of a few select officers from force management tools after the Senate has considered the promotion but failed to act favorably on it.

Eugene R. Fidell, a Washington, D.C., attorney specializing in military personnel law, said the committee is trying to address times “when there’s a standoff” between Senators who won’t confirm an officer’s promotion and an administration who won’t remove him from the promotion list.

Fidell predicted the Bush administration will oppose the proposed change as “an invasion of its prerogative.” Responsibility, after all, falls to a president to nominate for promotion those officers he finds best qualified.

“Who is Congress to say, ‘If you don’t act on it within 365 days, it’s being withdrawn.’ The executive branch could say, ‘Bug off,’ ” Fidell said.

Only a few officers are known to serve in limbo status but there could be more. One of them today is Cmdr. Kirk Lippold, who commanded the destroyer USS Cole when it was stuck by suicide bombers in October 2000 during a port visit to Yemen.
Seventeen sailors died and 42 were wounded. The official Navy investigation of the incident criticized Lippold but senior leaders said some of the criticism was unfair.

A board selected Lippold for promotion to captain in 2002. His nomination was blocked by the Senate committee that was then chaired by Sen. Carl Levin, D-Ill. A second nomination failed to clear the White House before Congress adjourned in 2002. The Senate hasn’t received a third nomination though Lippold remains on the captain’s promotion list.

Warner at one point said he will hold a hearing on Lippold’s performance aboard the Cole if the committee receives another nomination.

“Limbo” officers find themselves squeezed between branches of government. Congress refuses to allow promotion and the executive branch is reluctant to take the heat themselves by forcing out popular officers.

“You end up with an officer who’s an asterisk,” said a Senate source, “a guy who is on a promotion list until age 62” when any officer must retire.

Senate bill language to end limbo status sets an effective date of Jan. 1, 2007. But to accommodate that unnamed naval officer, the bill would allow a special retirement date for any officer still on a promotion list after rejection of their nomination by the Senate. Such officers, the bill explained, must retire “not later than Oct. 1, 2008.” By then, presumably, he’ll be 62.

Tom Philpott can be contacted at Military Update, P.O. Box 231111, Centreville, Va. 20120-1111, or by e-mail at:
milupdate@aol.com