§3364. Commissioned officers: selection for promotion; order of promotion; zone of consideration list; declination of promotion

(a) When officers are considered for promotion under section 3366, 3367, 3370, or 3371 of this title, the names of reserve officers assigned to each special branch, except the Judge Advocate General's Corps, shall be placed on a separate zone of consideration list for, or be considered for promotion for service in, that branch or corps. The names of all other reserve officers shall be placed on a zone of consideration list, or considered for promotion, without regard to the branch to which they are assigned. The convening officer shall refer each list to a selection board for consideration.

(b) Except as provided in subsection (d), an officer in an active status who is assigned to a special branch, and who is recommended for promotion under section 3366, 3367, or 3370 of this title, may not be promoted before an officer of the same reserve grade and the same branch who is in an active status, who has more service computed under section 3360(b) of this title, who has been recommended for promotion, and who is not assigned to a unit organized to serve as a unit.

(c) Except as provided in subsection (d), an officer who is not assigned to a special branch, and who is recommended for promotion under section 3366, 3367, or 3370 of this title, may not be promoted before an officer of the same reserve grade in an active status who is not assigned to a special branch, who has more service computed under section 3360(b) of this title, who has been recommended for promotion, and who is not assigned to a unit organized to serve as a unit.

(d) For the purposes of subsections (b) and (c)-

(1) the Secretary shall, by regulation, prescribe the order of promotion of officers having the same amount of service computed under section 3360(b) of this title;

(2) the promotion of an officer who is otherwise eligible for promotion may not be withheld because of a delay in the promotion, under section 3362, 3363, 3368, or 3380 of this title, of an officer with more service computed under section 3360(b) of this title; and

(3) an officer who has completed the service in grade prescribed in section 20 of the Act enacting this section may be promoted before an officer who has not completed that service.

(e) Notwithstanding any other provision of this title, a reserve commissioned officer who has been in an inactive status may not be considered for promotion until at least one year after the date on which he is returned to an active status. However, the Secretary may waive the preceding sentence and any other provision of this subtitle relating to the required status of officers eligible to be considered for promotion in order to permit consideration for promotion to the reserve grade of major general of an officer in the reserve grade of brigadier general-

(1) who is in an inactive status pursuant to a transfer to the inactive status list under section 3375(2) of this title and who has been on that list for less than one year; or

(2) who has been in an active status for less than one year, if the officer was returned to that status from a transfer to the inactive status list under section 3375(2) of this title.

(f) An officer of an Army Reserve unit organized to serve as a unit may decline a promotion under section 3366 or 3367 of this title if the Secretary of the Army, or an officer designated by him, approves that action as being in the best interests of the Army.

(g) An officer of the Army National Guard of the United States may decline a promotion under section 3366 or 3367 of this title if the governor or other appropriate authority of the State, Territory or Puerto Rico or the commanding general of the District of Columbia National Guard, whichever is concerned, approves that action.

(h) If an officer declines a promotion under subsection (f) or (g), his name shall be retained on the appropriate promotion list for a period of not more than three years from the date he was selected for promotion to the grade concerned unless-

(1) in the case of an officer of the Army Reserve, he is appointed to the grade for which he was selected or his name is removed from that list under another provision of law; and

(2) in the case of an officer of the Army National Guard of the United States, he is appointed to the next higher grade to fill a vacancy in the Army National Guard and is federally recognized in that grade or his name is removed from the promotion list under another provision of law.

The Secretary of the Army may, in his discretion, extend the period for which a declination is in effect in the case of any officer of the Army National Guard who is an officer of an Alaska Scout Battalion or of a unit engaged in air defense activities on a tactical site that is under the control of the Army or the Air Force.

(i) At the end of the period during which his name is carried on the appropriate promotion list under subsection (h), or at any earlier time if he requests the promotion, an officer of the Army Reserve whose name is retained on the promotion list under that subsection shall be promoted to the grade concerned and shall be transferred from his unit unless, upon his promotion, he fills a vacancy in that unit.

(j) At the end of the period during which his name is carried on the appropriate promotion list under subsection (h), or at any earlier time if he requests the promotion, an officer of the Army National Guard of the United States whose name is retained on the promotion list under that subsection shall, effective as of the last day of the period his name is so retained, or as of the date of his request, as the case may be, have his Federal recognition terminated, be transferred to the Army Reserve, and be promoted to the grade concerned. However, an officer may not be transferred and promoted under this subsection before the expiration of that period unless the governor or other appropriate authority of the State, Territory or Puerto Rico or the commanding general of the District of Columbia National Guard, whichever is concerned, approves that action.

(Added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1471 ; amended Pub. L. 86–559, §1(12), June 30, 1960, 74 Stat. 266 ; Pub. L. 95–485, title VIII, §820(e)(2)–(4), Oct. 20, 1978, 92 Stat. 1627 ; Pub. L. 98–525, title V, §512, Oct. 19, 1984, 98 Stat. 2521 ; Pub. L. 100–456, div. A, title XII, §1234(a)(4), Sept. 29, 1988, 102 Stat. 2059 .)

Repeal of Section

Section repealed effective Oct. 1, 1996, see note set out preceding section 3351 of this title.

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
3364(a) 3364(b)	50:1237(a). 50:1222(h) (as applicable to 50:1237 (a)). 50:1237(c) (less clause (2)). 50:1222(h) (as applicable to 50:1237(c) (less clause (2)).	Sept. 3, 1954, ch. 1257, §§302(h) (as applicable to §314 (less (b)), 314 (less (b)), 68 Stat. 1154 , 1158; June 30, 1955, ch. 247, §8, 69 Stat. 222 .
3364(c)	50:1237(c) (clause (2)). 50:1222(h) (as applicable to 50:1237(c) (clause (2)).
3364(d)	50:1237(d).

In subsections (a), (b), and (c), reference in 50:1222(h) to the special branches "enumerated in the Army Organization Act of 1950" is omitted, since the branches are enumerated in section 3064 of this title.

References in Text

Section 20 of the Act enacting this section, referred to in subsec. (d)(3), means section 20 of Pub. L. 85–861, Sept. 2, 1958, 72 Stat. 1559 , which was repealed by Pub. L. 86–559, §3, June 30, 1960, 74 Stat. 281 .

Amendments

1988-Subsecs. (g), (j). Pub. L. 100–456 substituted "or Puerto Rico" for ", Puerto Rico, the Canal Zone,".

1984-Subsec. (e). Pub. L. 98–525 inserted provision authorizing the Secretary to waive any provision of this subtitle relating to the required status of officers eligible to be considered for promotion in order to permit consideration for promotion to the reserve grade of major general of an officer in the reserve grade of brigadier general (1) who is in an inactive status pursuant to a transfer to the inactive status list under section 3375(2) of this title and who has been on that list for less than one year; or (2) who has been in an active status for less than one year, if the officer was returned to that status from a transfer to the inactive status list under section 3375(2) of this title.

1978-Subsecs. (a) to (c). Pub. L. 95–485 struck out reference to the Women's Army Corps.

1960-Pub. L. 86–559, §1(12)(A), substituted "declination of promotion" for "officers not assigned to units" in section catchline.

Subsecs. (e) to (j). Pub. L. 86–559, §1(12)(B), added subsecs. (e) to (j).

Section Referred to in Other Sections

This section is referred to in sections 123, 3360, 3367, 3370 of this title.