Promotions of Judge Advocates General Under Section 543 of the National Defense Authorization Act for Fiscal Year 2008 ( 2008 )

Promotions of Judge Advocates General Under
Section 543 of the National Defense
Authorization Act for Fiscal Year 2008
Section 543 of the National Defense Authorization Act for Fiscal Year 2008 does not automatically
advance incumbent Judge Advocates General to a three star general officer grade, but rather such
promotion requires a separate appointment by the President, by and with the advice and consent of
the Senate.
The incumbent Judge Advocates General may continue to serve out their full terms in their present two
star grades, though the President may nominate them for promotion to the higher grade at any time,
if he so chooses.
April 14, 2008
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
DEPARTMENT OF DEFENSE
Section 543 of the National Defense Authorization Act for Fiscal Year 2008,
Pub. L. No. 110-181, 122 Stat. 3, 114 (2008) (“NDAA”), amended sections
3037(a), 5148(b), and 8037(a) of title 10 of the United States Code to provide that
each of the Judge Advocates General (“TJAGs”) of the Army, Navy, and Air
Force has the grade of lieutenant general or vice admiral, depending on the service
(in each case, a three star general officer grade), while serving as TJAG. 1 Before
enactment of the NDAA, the TJAGs were required to hold officer grades of “not
lower than” two stars while so serving, 10 U.S.C. §§ 3037(a), 5148(b), 8037(a)
(2006), and each of the incumbent TJAGs is currently a two star officer. Your
office has asked for our opinion whether section 543 automatically advances the
incumbent TJAGs to the three star grade or whether such promotion requires
separate appointment by the President, by and with the advice and consent of the
Senate. 2
1
For example, with respect to the Navy TJAG, section 5148(b) of title 10, as amended by section
543 of the NDAA, now provides:
There is in the executive part of the Department of the Navy the Office of the Judge
Advocate General of the Navy. The Judge Advocate General shall be appointed by the
President, by and with the advice and consent of the Senate, for a term of four years.
He shall be appointed from judge advocates of the Navy or the Marine Corps who are
members of the bar of a Federal court or the highest court of a State and who have had
at least eight years of experience in legal duties as commissioned officers. The Judge
Advocate General, while so serving, has the grade of vice admiral or lieutenant gen-
eral, as appropriate.
10 U.S.C. § 5148(b) (as amended by the NDAA) (emphasized language added by section 543).
2
Letter for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal
Counsel, from William J. Haynes II, General Counsel, Department of Defense (Jan. 20, 2008).
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Promotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008
The new language added by section 543 speaks in the present tense: “The Judge
Advocate General, while so serving, has the grade of” a three star general officer
(emphasis added). It might be suggested that this language—by specifying that
each TJAG “has” the three star grade “while so serving” as TJAG—has the effect
of automatically promoting the incumbent TJAGs to the higher, three star officer
grade without any separate appointment. We believe, however, that this is not the
better interpretation of the statute (and would raise significant constitutional
issues). Rather, we believe that section 543 is best read to preserve the traditional
understanding, consistent with similar provisions throughout title 10 and the
settled treatment of grade promotions as appointments to constitutional offices,
that TJAG promotions to the higher specified officer grade will occur through
separate appointments by the President, by and with the advice and consent of the
Senate. Under this reading, the effect of section 543 is to provide that, whereas
under the prior statute the President had discretion to appoint TJAGs to an officer
grade of two stars or higher, now when the President nominates and appoints
officers to TJAG positions, he must also nominate and appoint them to the
specified three star grade. We do not believe that section 543 can reasonably be
read to terminate the current terms of the incumbent two star TJAGs or (what
would be similarly problematic) to require that the President nominate the
incumbent TJAGs for promotion to three star grade before the end of their current
terms—though the President, of course, may choose to do so.
Commissioned military officers are “Officers of the United States” for purposes
of the Appointments Clause of the Constitution, see Weiss v. United States, 510
U.S. 163, 170 (1994); Shoemaker v. United States, 147 U.S. 282, 301 (1893), and
each promotion of a military officer from one grade level to the next is considered
a separate appointment to a new office, see Dysart v. United States, 369 F.3d
1303, 1306 (Fed. Cir. 2004) (permanent grade promotion); D’Arco v. United
States, 441 F.2d 1173 (Ct. Cl. 1971) (en banc) (temporary grade promotion).
“Promotion . . . is as much or as little within the President’s constitutional power
of appointment as an original appointment, and is subject . . . to the same consid-
erations.” Issuance of Commission in Name of Deceased Army Officer, 29 Op.
Att’y Gen. 254, 256 (1911); accord Promotion of Marine Officer, 41 Op. Att’y
Gen. 291, 292 (1956) (considering the constitutionality of restrictions on the
President’s authority temporarily to promote a commissioned officer by recess
appointment).
Accordingly, the promotion of a military officer to a higher grade (like any
appointment to a new office in the Executive Branch) requires appointment by the
President, by and with the advice and consent of the Senate, unless Congress, with
respect to “inferior Officers,” has vested the appointment power in “the President
alone, in the Courts of Law, or in the Heads of Departments,” U.S. Const. art. II,
§ 2, cl. 2, or unless the President appoints an officer pursuant to the requirements
of the Recess Appointments Clause, id. art. II, § 2, cl. 3. Traditionally, each
promotion of a senior military officer has been done by such a procedure—
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presidential appointment with Senate confirmation (or, on occasion, recess
appointment pursuant to the Constitution)—whether or not the promotion is
carried out pursuant to specific statutory authority. See Promotion of Marine
Officer, 41 Op. Att’y Gen. at 291–92; see also Promotion of Army Officers, 30 Op.
Att’y Gen. 177, 179 (1913) (“The provisions of the Constitution, therefore, operate
directly upon this [grade promotion], and, without the intervention of Congress,
obliges the President to nominate, and by and with the advice and consent of the
Senate, to appoint thereto.”); Issuance of Commission in Name of Deceased Army
Officer, 29 Op. Att’y Gen. at 256 (“Promotion in the Army is . . . an appointment
to a higher office therein; and this fact is illustrated and confirmed by the long
established practice of submitting nominations for promotion in the Army to the
Senate for confirmation and of thereafter issuing a commission for the higher
office.”).
This traditional approach to the appointment of military officers and their pro-
motion to higher officer grades is reflected throughout title 10. Section 601, for
example, authorizes the President to designate particular positions of importance
and responsibility within the services to carry senior officer grades of three or four
stars (lieutenant general/vice admiral or general/admiral, respectively), and
provides that “[a]n officer assigned to any such position has the grade specified for
that position if he is appointed to that grade by the President, by and with the
advice and consent of the Senate.” 10 U.S.C. § 601(a) (2000). The express
distinction in section 601 between the “assign[ment]” to the “position” in question
and the “appoint[ment]” to the specified officer “grade” associated with that
position reflects the traditional understanding that the officer’s assignment or
appointment to a specific military position is distinct from his appointment to the
higher grade associated with that position. See, e.g., 152 Cong. Rec. 4640 (2006)
(reporting nominations received March 30, 2006) (nomination of Lt. Gen. Michael
D. Rochelle “for appointment in the United States Army to the grade indicated
while assigned to a position of importance and responsibility under title 10,
U.S.C., section 601”). Similarly, section 624, which provides for the promotion of
officers recommended for promotion by selection boards convened under section
611, makes it clear that such promotions are “[a]ppointments” and specifies that
“[a]ppointments under this section shall be made by the President, by and with the
advice and consent of the Senate, except that appointments under this section in
the grade of first lieutenant or captain, in the case of officers of the Army, Air
Force, or Marine Corps, or lieutenant (junior grade) or lieutenant, in the case of
officers of the Navy, shall be made by the President alone.” Id. § 624(c).
Several provisions of title 10 that establish particular positions for military
officers have for decades specified the officer grade associated with the position
using language essentially identical to section 543’s, and the promotions to these
officer grades have long been made through separate appointments by the
President, by and with the advice and consent of the Senate. For example, section
152, establishing the position of Chairman of the Joint Chiefs of Staff, provides
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Promotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008
that “[t]he Chairman, while so serving, holds the grade of general or, in the case of
an officer of the Navy, admiral.” Id. § 152(c) (emphasis added). Although section
152 specifically provides for appointment to the position of Chairman of the Joint
Chiefs (by the President with Senate confirmation), id. § 152(a), nominations for
appointment to this position have also traditionally included separate nominations
for the officer grade associated with the position. See, e.g., 153 Cong. Rec. 17,916
(2007) (reporting nominations received June 28, 2007) (nomination of Adm.
Michael G. Mullen “for appointment as the Chairman of the Joint Chiefs of Staff
and appointment to the grade indicated [admiral] while assigned to a position of
importance and responsibility under title 10, U.S.C., sections 152 and 601
[Chairman of the Joint Chiefs]”) (emphasis added). The same is true for the
position of Vice Chairman of the Joint Chiefs. See 10 U.S.C. §§ 154(a) (appoint-
ment to position of Vice Chairman by the President with Senate confirmation),
154(f) (Vice Chairman, “while so serving, holds the grade of general,” etc.); see,
e.g., 153 Cong. Rec. 17,916, 17,916–17 (2007) (reporting nominations received
June 28, 2007) (nomination of Gen. James E. Cartwright “for appointment as the
Vice Chairman of the Joint Chiefs of Staff and appointment to the grade indicated
while assigned to a position of importance and responsibility under title 10,
U.S.C., sections 601 and 154”) (emphasis added). It is also true for a number of
other positions in the military service. See, e.g., 10 U.S.C. §§ 3036(b) (2000)
(providing for appointment of several officers, including Surgeon General of the
Army, by the President with Senate confirmation), 3036(b)(2) (specifying that the
Surgeon General, “while so serving, has the grade of lieutenant general”)
(emphasis added); 153 Cong. Rec. 27,258, 27,260 (2007) (reporting nominations
received on Oct. 16, 2007) (nomination of Maj. Gen. Eric Schoomaker “for
appointment as the Surgeon General, United States Army, and appointment to the
grade indicated while assigned to a position of importance and responsibility
under title 10, U.S.C., sections 601 and 3036”) (emphasis added).
Indeed, with respect to the appointment of the incumbent Air Force TJAG,
essentially the same practice was followed under the previous TJAG appointment
provision, which, before enactment of section 543, provided that “[t]he Judge
Advocate General, while so serving, shall hold a grade not lower than [a two star
grade].” E.g., 10 U.S.C. § 8037(a) (2006) (Air Force TJAG) (emphasis added).
See, e.g., 152 Cong. Rec. 2064, 2065 (2006) (reporting nominations confirmed on
Feb. 16, 2006) (nomination of Maj. Gen. Jack L. Rives “for appointment in the
regular Air Force of the United States to the position and grade indicated under
title 10, U.S.C., section 8037”) (emphasis added). 3 Although the phrase “shall
hold” might in some sense be even more imperative than the current “has” with
respect to the grade specification for TJAG positions, still a distinction was made,
3
Major General Rives held the permanent grade of major general at the time of his appointment to
the office of TJAG and to the grade of major general while serving in that office.
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for appointment purposes, between the TJAG position itself and the associated
grade.
We recognize that TJAG positions might not be designated as positions “of
importance and responsibility” under section 601 and that TJAGs might not
always be selected for promotion by selection boards convened under section 611,
see, e.g., 10 U.S.C. § 3037(d) (2000) (providing that in selecting an officer for
recommendation as Army TJAG, the Secretary of the Army is to propose an
officer recommended for promotion by a board of officers that, “insofar as
practicable,” is subject to the procedures applicable to selection boards under
section 611). Therefore, the appointment of TJAGs to a higher officer grade will
not necessarily rest on the separate statutory authority of section 601 (as do grade
promotions of officers serving in positions designated as positions of importance
and responsibility) or section 624 (as do grade promotions of officers recommend-
ed for promotion by selection boards). To the extent TJAGs are selected for
promotion by selection boards convened under section 611, section 624 would
govern their promotions to the three star grade, and it, like section 601, provides
for grade promotion by appointment of the President, by and with the advice and
consent of the Senate. Id. § 624(c). If, however, there is no applicable statute
specifically providing for the appointment to the separate office of the higher
officer grade, the Appointments Clause of the Constitution supplies all needed
authority, and its default rule specifies appointment by the President, by and with
the advice and consent of the Senate. Promotion of Army Officers, 30 Op. Att’y
Gen. at 179; see U.S. Const. art. II, § 2, cl. 2.
We assume that Congress was aware when it enacted section 543 of the NDAA
of the established understanding that grade promotions require distinct appoint-
ments and the traditional appointment practice under similar provisions of title 10.
See Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993); Lorillard
v. Pons, 434 U.S. 575, 580–81 (1978). Because the amended TJAG grade specifi-
cation provisions track closely the corresponding language used for a number of
the other military positions discussed above, we believe that section 543 is best
read, consistent with the related provisions of title 10, to preserve the traditional
understanding and settled practice with respect to such promotions for TJAGs.
Nothing in the legislative history of the NDAA suggests Congress’s intent to do
otherwise. Moreover, interpreting section 543 to dispense with the appointment
process and provide for grade promotions by operation of law would raise
significant constitutional concerns because Congress may not appoint an officer to
a constitutional office. See Shoemaker, 147 U.S. at 300–01 (“[W]hile Congress
may create an office, it cannot appoint the officer.”); Dysart, 369 F.3d at 1314
(construing section 624 of title 10 not to provide for promotions by operation of
law because such a reading would conflict with the Constitution). Accordingly, we
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Promotions of Judge Advocates General Under Section 543 of the NDAA for FY 2008
conclude that the TJAG grade promotion provisions, as amended by section 543,
contemplate separate appointment of TJAGs to the higher specified officer grade. 4
We believe the incumbent TJAGs may continue to serve out their full terms in
the two star grade, though the President may, of course, nominate them for
promotion to the higher grade at any time, if he so chooses. Applying the new
grade specification to the incumbents could be deemed to remove them from
office before the end of their current terms because they do not hold the three star
grade now specified for their positions. That result is certainly not demanded by
the language of section 543, finds no support in its legislative history, and should
be avoided because it is well established that Congress may not remove an
executive officer from office other than by impeachment (unless the office itself is
legitimately abolished). See Myers v. United States, 272 U.S. 52, 122 (1926);
Bowsher v. Synar, 478 U.S. 714, 723 (1986). Similarly, we believe the amended
statutes are not reasonably read to require the President to submit nominations for
grade increases for the current TJAGs in mid-term. Again, neither the statute’s text
nor its legislative history requires that result. Usually, we construe appointment
statutes to apply prospectively (here to any new appointment of an officer to a
term as TJAG made after enactment of the statute). See, e.g., Applicability of
Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent
Officeholders, 12 Op. O.L.C. 286, 288 (1988). In any event, as noted, if the statute
were read to require the President to nominate particular individuals for appoint-
ment to particular military offices, like the specified higher officer grade, such an
interpretation would raise significant constitutional concerns, as the President must
retain sufficient discretion in selecting nominees for Executive Branch offices. See
Issuance of Commission in Name of Deceased Officer, 29 Op. Att’y Gen. at 256
(“Congress may point out the general class of individuals from which an appoint-
ment must be made, if made at all, but it cannot control the President’s discretion
to the extent of compelling him to commission a designated individual.”); Pub.
Citizen v. Dep’t of Justice, 491 U.S. 440, 483 (1989) (Kennedy, J., concurring)
(the Appointments Clause gives “[n]o role whatsoever . . . either to the Senate or
to Congress as a whole in the process of choosing the person who will be nominat-
ed for appointment”).
In sum, we conclude that sections 3037(a), 5148(b), and 8037(a) of title 10, as
amended by section 543 of the NDAA, continue to contemplate separate appoint-
ment by the President, by and with the advice and consent of the Senate, for TJAG
promotions to the higher officer grade. This interpretation is consistent with the
4
That Congress has sometimes used more explicit language to require separate appointment to a
specified grade, such as for the appointment of the Assistant TJAG of the Army to a permanent two star
grade, see 10 U.S.C. § 3037(a) (2000) (“An officer appointed as Assistant Judge Advocate General [of
the Army] who holds a lower regular grade shall be appointed in the regular grade of major general.”),
does not negate the settled understanding of the “while so serving” grade provisions that apply to the
TJAGs and various other officer positions in title 10.
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traditional understanding that each military officer grade is a separate office and
each promotion of a senior military officer to a higher officer grade is made by
presidential appointment, by and with the advice and consent of the Senate. It is
also consistent with prior TJAG appointment procedures and with related provi-
sions of title 10 providing for the appointment and promotion of military officers
in various grades and positions. The nomination and appointment of a TJAG to the
higher three star officer grade may be done simultaneously with the nomination
and appointment of the officer to the TJAG position itself. The President is not
required by section 543 to nominate the incumbent TJAGs to the three star grade
before their current terms end but is free to do so at any time.
STEVEN G. BRADBURY
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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