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U.S. Code as of:
01/19/04
Section 1370. Commissioned officers: general rule; exceptions
(a) Rule for Retirement in Highest Grade Held Satisfactorily. -
(1) Unless entitled to a higher retired grade under some other
provision of law, a commissioned officer (other than a commissioned
warrant officer) of the Army, Navy, Air Force, or Marine Corps who
retires under any provision of law other than chapter 61 or chapter
1223 of this title shall, except as provided in paragraph (2), be
retired in the highest grade in which he served on active duty
satisfactorily, as determined by the Secretary of the military
department concerned, for not less than six months.
(2)(A) In order to be eligible for voluntary retirement under any
provision of this title in a grade above major or lieutenant
commander, a commissioned officer of the Army, Navy, Air Force, or
Marine Corps must have served on active duty in that grade for not
less than three years, except that the Secretary of Defense may
authorize the Secretary of a military department to reduce such
period to a period not less than two years.
(B) In the case of an officer to be retired in a general or flag
officer grade, authority provided by the Secretary of Defense to
the Secretary of a military department under subparagraph (A) may
be exercised with respect to that officer only if approved by the
Secretary of Defense or another civilian official in the Office of
the Secretary of Defense appointed by the President, by and with
the advice and consent of the Senate.
(C) Authority provided by the Secretary of Defense to the
Secretary of a military department under subparagraph (A) may be
delegated within that military department only to a civilian
official of that military department appointed by the President, by
and with the advice and consent of the Senate.
(D) The President may waive subparagraph (A) in individual cases
involving extreme hardship or exceptional or unusual circumstances.
The authority of the President under the preceding sentence may not
be delegated.
(E) In the case of a grade below the grade of lieutenant general
or vice admiral, the number of members of one of the armed forces
in that grade for whom a reduction is made during any fiscal year
in the period of service-in-grade otherwise required under this
paragraph may not exceed the number equal to two percent of the
authorized active-duty strength for that fiscal year for officers
of that armed force in that grade.
(3) A reserve or temporary officer who is notified that he will
be released from active duty without his consent and thereafter
requests retirement under section 3911, 6323, or 8911 of this title
and is retired pursuant to that request is considered for purposes
of this section, to have been retired involuntarily. An officer
retired pursuant to section 1186(b)(1) of this title is considered
for purposes of this section to have been retired voluntarily.
(b) Retirement in Next Lower Grade. - An officer whose length of
service in the highest grade he held while on active duty does not
meet the service in grade requirements specified in subsection (a)
shall be retired in the next lower grade in which he served on
active duty satisfactorily, as determined by the Secretary of the
military department concerned, for not less than six months.
(c) Officers in O-9 and O-10 Grades. - (1) An officer who is
serving in or has served in the grade of general or admiral or
lieutenant general or vice admiral may be retired in that grade
under subsection (a) only after the Secretary of Defense certifies
in writing to the President and Congress that the officer served on
active duty satisfactorily in that grade.
(2) In the case of an officer covered by paragraph (1), the
three-year service-in-grade requirement in paragraph (2)(A) of
subsection (a) may not be reduced or waived under that subsection -
(A) while the officer is under investigation for alleged
misconduct; or
(B) while there is pending the disposition of an adverse
personnel action against the officer for alleged misconduct.
(3)(A) The Secretary of Defense may delegate authority to make a
certification with respect to an officer under paragraph (1) only
to the Under Secretary of Defense for Personnel and Readiness or
the Deputy Under Secretary of Defense for Personnel and Readiness.
(B) If authority is delegated under subparagraph (A) and, in the
course of consideration of an officer for a certification under
paragraph (1), the Under Secretary or (if such authority is
delegated to both the Under and Deputy Under Secretary) the Deputy
Under Secretary makes a determination described in subparagraph (C)
with respect to that officer, the Under Secretary or Deputy Under
Secretary, as the case may be, may not exercise the delegated
authority in that case, but shall refer the matter to the Secretary
of Defense, who shall personally determine whether to issue a
certification under paragraph (1) with respect to that officer.
(C) A determination referred to in subparagraph (B) is a
determination that there is potentially adverse information
concerning an officer and that such information has not previously
been submitted to the Senate in connection with the consideration
by the Senate of a nomination of that officer for an appointment
for which the advice and consent of the Senate is required.
(d) Reserve Officers. - (1) Unless entitled to a higher grade, or
to credit for satisfactory service in a higher grade, under some
other provision of law, a person who is entitled to retired pay
under chapter 1223 of this title shall, upon application under
section 12731 of this title, be credited with satisfactory service
in the highest grade in which that person served satisfactorily at
any time in the armed forces, as determined by the Secretary
concerned in accordance with this subsection.
(2) In order to be credited with satisfactory service in an
officer grade (other than a warrant officer grade) below the grade
of lieutenant colonel or commander, a person covered by paragraph
(1) must have served satisfactorily in that grade (as determined by
the Secretary of the military department concerned) as a reserve
commissioned officer in an active status, or in a retired status on
active duty, for not less than six months.
(3)(A) In order to be credited with satisfactory service in an
officer grade above major or lieutenant commander, a person covered
by paragraph (1) must have served satisfactorily in that grade (as
determined by the Secretary of the military department concerned)
as a reserve commissioned officer in an active status, or in a
retired status on active duty, for not less than three years.
(B) A person covered by subparagraph (A) who has completed at
least six months of satisfactory service in grade may be credited
with satisfactory service in the grade in which serving at the time
of transfer or discharge, notwithstanding failure of the person to
complete three years of service in that grade, if that person is
transferred from an active status or discharged as a reserve
commissioned officer -
(i) solely due to the requirements of a nondiscretionary
provision of law requiring that transfer or discharge due to the
person's age or years of service; or
(ii) because the person no longer meets the qualifications for
membership in the Ready Reserve solely because of a physical
disability, as determined, at a minimum, by a medical evaluation
board and at the time of such transfer or discharge such person
(pursuant to section 12731b of this title or otherwise) meets the
service requirements established by section 12731(a) of this
title for eligibility for retired pay under chapter 1223 of this
title, unless the disability is described in section 12731b of
this title.
(C) If a person covered by subparagraph (A) has completed at
least six months of satisfactory service in grade, the person was
serving in that grade while serving in a position of adjutant
general required under section 314 of title 32 or while serving in
a position of assistant adjutant general subordinate to such a
position of adjutant general, and the person has failed to complete
three years of service in that grade solely because the person's
appointment to such position has been terminated or vacated as
described in section 324(b) of such title, then such person may be
credited with satisfactory service in that grade, notwithstanding
the failure to complete three years of service in that grade.
(D) To the extent authorized by the Secretary of the military
department concerned, a person who, after having been recommended
for promotion in a report of a promotion board but before being
promoted to the recommended grade, served in a position for which
that grade is the minimum authorized grade may be credited for
purposes of subparagraph (A) as having served in that grade for the
period for which the person served in that position while in the
next lower grade. The period credited may not include any period
before the date on which the Senate provides advice and consent for
the appointment of that person in the recommended grade.
(E) To the extent authorized by the Secretary of the military
department concerned, a person who, after having been found
qualified for Federal recognition in a higher grade by a board
under section 307 of title 32, serves in a position for which that
grade is the minimum authorized grade and is appointed as a reserve
officer in that grade may be credited for the purposes of
subparagraph (A) as having served in that grade. The period of the
service for which credit is afforded under the preceding sentence
may only be the period for which the person served in the position
after the Senate provides advice and consent for the appointment.
(F) A person covered by subparagraph (A) who has completed at
least six months of satisfactory service in a grade above colonel
or (in the case of the Navy) captain and, while serving in an
active status in such grade, is involuntarily transferred (other
than for cause) from active status may be credited with
satisfactory service in the grade in which serving at the time of
such transfer, notwithstanding failure of the person to complete
three years of service in that grade.
(4) A person whose length of service in the highest grade held
does not meet the service in grade requirements specified in this
subsection shall be credited with satisfactory service in the next
lower grade in which that person served satisfactorily (as
determined by the Secretary of the military department concerned)
for not less than six months.
(5)(A) The Secretary of Defense may authorize the Secretary of a
military department to reduce the 3-year period required by
paragraph (3)(A) to a period not less than two years.
(B) In the case of a person who, upon transfer to the Retired
Reserve or discharge, is to be credited with satisfactory service
in a general or flag officer grade under paragraph (1), authority
provided by the Secretary of Defense to the Secretary of a military
department under subparagraph (A) may be exercised with respect to
that person only if approved by the Secretary of Defense or another
civilian official in the Office of the Secretary of Defense
appointed by the President, by and with the advice and consent of
the Senate.
(C) Authority provided by the Secretary of Defense to the
Secretary of a military department under subparagraph (A) may be
delegated within that military department only to a civilian
official of that military department appointed by the President, by
and with the advice and consent of the Senate.
(6) The number of reserve commissioned officers of an armed force
in the same grade for whom a reduction is made during any fiscal
year in the period of service-in-grade otherwise required under
paragraph (5) may not exceed the number equal to 2 percent of the
strength authorized for that fiscal year for reserve commissioned
officers of that armed force in an active status in that grade.
(e) Advance Notice to Congressional Committees. - (1) In the case
of an officer to be retired in a grade that is a general or flag
officer grade who is eligible to retire in that grade only by
reason of an exercise of authority under paragraph (2) of
subsection (a) to reduce the three-year service-in-grade
requirement otherwise applicable under that paragraph, the
Secretary of Defense, before the officer is retired in that grade,
shall notify the Committee on Armed Services of the Senate and the
Committee on Armed Services of the House of Representatives of the
exercise of authority under that paragraph with respect to that
officer.
(2) In the case of a person to be credited under subsection (d)
with satisfactory service in a grade that is a general or flag
officer grade who is eligible to be credited with such service in
that grade only by reason of an exercise of authority under
paragraph (5) of that subsection to reduce the three-year
service-in-grade requirement otherwise applicable under paragraph
(3)(A) of that subsection, the Secretary of Defense, before the
person is credited with such satisfactory service in that grade,
shall notify the Committee on Armed Services of the Senate and the
Committee on Armed Services of the House of Representatives of the
exercise of authority under paragraph (5) of that subsection with
respect to that officer.
(3) In the case of an officer to whom subsection (c) applies, the
requirement for notification under paragraph (1) is satisfied if
the notification is included in the certification submitted with
respect to that officer under paragraph (1) of such subsection.
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