Page:United States Statutes at Large Volume 115 Part 2.djvu/98

 115 STAT. 1082 PUBLIC LAW 107-107—DEC. 28, 2001 Reserve or to inactive status in a reserve component, as the case may be. "(d) FINALITY OF UNFAVORABLE ACTION.— I f a special board makes a recommendation not to correct the military records of a person regarding action taken in the case of that person on the basis of a previous report of a selection board, the action previously taken on that report shall be considered as final as of the date of the action taken on that report. "(e) REGULATIONS. —(1) The Secretary of each military department shall prescribe regulations to carry out this section. Regulations under this subsection may not apply to subsection (f), other than to paragraph (4)(C) of that subsection. "(2) The Secretary may prescribe in the regulations under paragraph (1) the circumstances under which consideration by a special board may be provided for under this section, including the following: "(A) The circumstances under which consideration of a person's case by a special board is contingent upon application by or for that person. "(B) Any time limits applicable to the filing of an application for such consideration. "(3) Regulations prescribed by the Secretary of a military department under this subsection may not take effect until approved by the Secretary of Defense. "(f) JUDICIAL REVIEW.— (1) A person seeking to challenge an action or recommendation of a selection board, or an action taken by the Secretary of the military department concerned on the report of a selection board, is not entitled to relief in any judicial proceeding unless the action or recommendation has first been considered by a special board under this section or the Secretary concerned has denied the convening of such a board for such consideration. "(2)(A) A court of the United States may review a determination by the Secretary of a military department not to convene a special board in the case of any person. In any such case, the court may set aside the Secretary's determination only if the court finds the determination to be— "(i) arbitrary or capricious; "(ii) not based on substantial evidence; "(iii) a result of material error of fact or material administrative error; or "(iv) otherwise contrary to law. "(B) If a court sets aside a determination by the Secretary of a military department not to convene a special board, it shall remand the case to the Secretary concerned, who shall provide for consideration by a special board. "(3) A court of the United States may review a recommendation of a special board or an action of the Secretary of the military department concerned on the report of a special board. In any such case, a court may set aside the action only if the court finds that the recommendation or action was— "(A) arbitrary or capricious; "(B) not based on substantial evidence; "(C) a result of material error of fact or material administrative error; or "(D) otherwise contrary to law. "(4)(A) If, six months after receiving a complete application for consideration by a special board in any case, the Secretary

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