§3367. Commissioned officers: promotion of first lieutenants, captains, and majors to fill vacancies

(a) Whenever the Secretary of the Army determines that, within the distribution of officers not assigned to units, there are existing or anticipated vacancies in the reserve grade of captain, major, or lieutenant colonel, he may convene a selection board to consider and recommend, for promotion to those grades, officers of the Army Reserve who are in an active status and who are not assigned to units organized to serve as units, reserve officers who are on active duty (other than for training), officers of any Army Reserve unit organized to serve as a unit, and officers of the Army National Guard of the United States. The Secretary shall prescribe for each zone of consideration list established under section 3364 of this title the minimum service, computed under section 3360(b) of this title, that an officer of the appropriate branch must have to be placed on that list. He shall require that each officer who has the prescribed service completed under that section, who is in an active status, and who is not assigned to a unit organized to serve as a unit, be placed on that list. Officers of any Army Reserve unit organized to serve as a unit, and officers of the Army National Guard of the United States, who have the prescribed service computed under that section, shall also be placed on that list. The Secretary shall prescribe the number to be recommended for promotion from each list.

(b) Subject to section 3380 of this title, an officer recommended for promotion under this section may be promoted whenever there is a vacancy, but it is not mandatory that the authorized number be maintained in any grade. Each officer of the Army National Guard of the United States who is recommended by a selection board for promotion under this section and who, before the date on which he would be promoted under this section, is appointed in the next higher grade to fill a vacancy in the Army National Guard and is federally recognized in that grade shall be promoted to that reserve grade effective as of the date on which he is so recognized. If he is not so appointed in the next higher grade in the Army National Guard and federally recognized in that grade, he shall, effective as of the date of the promotion under this section, have his Federal recognition terminated and be transferred to the Army Reserve. Each officer of an Army Reserve unit organized to serve as a unit who is promoted under this section shall, effective as of the date of that promotion, be transferred from his unit unless, upon his promotion, he fills a vacancy in that unit.

(c) A selection board considering officers under this section shall use one of the following methods, as directed by the Secretary of the Army:

(1)(A) Consider the officers referred to it in the order of their service computed under section 3360(b) of this title;

(B) recommend those who are fully qualified for promotion;

(C) pass over and report those not so qualified; and

(D) continue this procedure until the number of officers specified by him is recommended.

(2) Recommend a number specified by him whom it considers to be the best qualified of those officers referred to it.

If the method prescribed in clause (2) is used, the number recommended by the selection board must be at least 80 percent of the officers listed for consideration for the first time.

[(d) Repealed. Pub. L. 90–130, §1(11)(B), Nov. 8, 1967, 81 Stat. 375 .]

(e) If an officer of the Army National Guard of the United States is found qualified for promotion under this section, section 3390 of this title applies in place of the examination for Federal recognition in the grade for which found qualified.

(Added Pub. L. 85–861, §1(80)(E), Sept. 2, 1958, 72 Stat. 1473 ; amended Pub. L. 86–559, §1(14), June 30, 1960, 74 Stat. 268 ; Pub. L. 90–130, §1(11)(B), Nov. 8, 1967, 81 Stat. 375 .)

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)
3367(a) 3367(b)	50:1232(a). 50:1271 (less 29th through 35th words of last sentence, as applicable to 50:1232). 50:1232(b).	Sept. 3, 1954, ch. 1257, §§309, 314(b) (less applicability to §310), 331 (as applicable to §309), 68 Stat. 1156 , 1158, 1164.
3367(c)	50:1237(b) (less applicability to 50:1233).
3367(d)	50:1232(c).
3367(e)	50:1271 (29th through 35th words of last sentence, as applicable to 50:1232).

In subsection (a), the words "appoint and" and "or more", in 50:1232(a), are omitted as surplusage. The words "a selection board" are substituted for the words "one or more selection boards". The words "for promotion to those grades" are substituted for the words "to fill the vacancies".

In subsection (b), the words "Upon attaining the total years of service required by section 1238(a) of this title" are omitted as surplusage.

In subsection (c), the words "must be at least 80 percent" are substituted for the words "shall * * * a minimum of 80 per centum".

Subsection (e) is substituted for 50:1271 (29th through 35th words of last sentence).

Amendments

1967-Subsec. (d). Pub. L. 90–130 struck out subsec. (d) which excepted the promotion to a grade above major of reserve officers of the Army Nurse Corps, Army Medical Specialist Corps, and the Women's Army Corps from the applicability of this section.

1960-Pub. L. 86–559, §1(14)(A), struck out "not assigned to units" after "majors" in section catchline.

Subsec. (a). Pub. L. 86–559, §1(14)(B), included officers of Army Reserve units organized to serve as units, and officers of the Army National Guard of the United States.

Subsec. (b). Pub. L. 86–559, §1(14)(B), inserted provisions relating to promotion of officers of the Army National Guard of the United States, transfer to the Army Reserve of officers not appointed to the next higher grade in the Army National Guard, and to transfer of officers of Army Reserve units organized to serve as units.

Subsec. (c). Pub. L. 86–559, §1(14)(C), inserted "for the first time" after "listed for consideration".

Subsec. (d). Pub. L. 86–559, §1(14)(D), substituted "major of reserve officers of the Army Nurse Corps, Army Medical Specialist Corps, or the Women's Army Corps" for "captain of reserve officers of the Army Nurse Corps or the Army Medical Specialist Corps, or to the promotion to a grade above major of reserve officers of the Women's Army Corps".

Section Referred to in Other Sections

This section is referred to in sections 123, 3360, 3364, 3366, 3368, 3846 of this title; title 32 section 310.