§6389. Naval Reserve and Marine Corps Reserve; officers: elimination from active status; computation of total commissioned service

(a) Subject to section 12645 of this title, an officer in an active status in the Naval Reserve in the permanent grade of lieutenant or lieutenant (junior grade), and an officer in an active status in the Marine Corps Reserve in the permanent grade of captain or first lieutenant, who is considered as having twice failed of selection for promotion to the next higher grade may, in the discretion of the Secretary of the Navy, be eliminated from an active status.

(b) An officer who is to be eliminated from an active status under subsection (a) or (f) shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve and, if he requests it, shall be so transferred. If he is not so transferred, he shall, in the discretion of the Secretary, be transferred to the appropriate inactive status list or be discharged from the Naval Reserve or the Marine Corps Reserve.

(c) An officer in an active status in the Naval Reserve in the permanent grade of lieutenant commander or above, and an officer in an active status in the Marine Corps Reserve in the permanent grade of major or above, who is considered as having twice failed of selection for promotion to the next higher grade shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve. If he is not so transferred, he shall be discharged from the Naval Reserve or the Marine Corps Reserve if he has completed a period of total commissioned service equal to that specified below for the permanent grade in which he is serving:

Grade		Total commissioned service
Navy	Marine Corps
Captain	Colonel	30 years.
Commander	Lieutenant colonel	26 years.
Lieutenant commander	Major	20 years.

Notwithstanding the first sentence of this subsection, the Secretary may defer the retirement or discharge of such number of officers serving in the grade of lieutenant commander as are necessary to maintain the authorized officer strength of the Ready Reserve, but the duration of such deferment for any individual officer may not be in excess of five years. Notwithstanding the first two sentences of this subsection, the Secretary may defer the retirement or discharge under this subsection of an officer serving in the permanent grade of lieutenant commander or above in the Naval Reserve or in the permanent grade of major or above in the Marine Corps Reserve for a period of time which does not exceed the amount of service in an active status which was credited to the officer at the time of his original appointment or thereafter under any provision of law, if the officer can complete at least 20 years of service as computed under section 1332 ¹ of this title during the period of such deferment. Notwithstanding the first two sentences of this subsection, the Secretary may defer the retirement or discharge under this subsection of such number of officers serving in the permanent grade of captain or commander in the Medical Corps, Chaplain Corps, or Dental Corps in the Naval Reserve as are necessary to provide for mobilization requirements.

(d) For the purposes of subsection (c), the total commissioned service of an officer who has served continuously in the Naval Reserve or the Marine Corps Reserve following appointment therein in the permanent grade of ensign or second lieutenant, as the case may be, shall be computed from June 30 of the fiscal year in which he accepted the appointment. Each other officer is considered to have for this purpose as much total commissioned service as the years of active commissioned service of any regular officer on the active-duty list of the Navy not restricted in the performance of duty, or any regular officer on the active-duty list of the Marine Corps not restricted in the performance of duty, as appropriate, who has served continuously since original appointment as an ensign on the active-duty list of the Navy or as a second lieutenant on the active-duty list of the Marine Corps, has not lost numbers or precedence, and is, or has been after September 6, 1947, junior to that other officer. However, the total commissioned service that the other officer is considered to have may not be less than the actual number of years he has served as a commissioned officer in a grade above chief warrant officer, W–5.

(e) This section does not apply to women reserve officers or to reserve officers in the Nurse Corps.

(f)(1) Each officer of the Naval Reserve in an active status in the permanent grade of rear admiral (lower half) and each officer of the Marine Corps Reserve in an active status in the permanent grade of brigadier general shall, 30 days after he completes 30 years of service computed under subsection (d), or on the fifth anniversary of the date of his appointment to that grade, whichever is later-

(A) be transferred to the Retired Reserve, if he is qualified and applies therefor, or

(B) if he is not qualified or does not apply therefor, be discharged from his reserve component.

An officer who has been recommended for promotion, and who would otherwise be removed from an active status under this section, shall be retained in that status until he is appointed or refused appointment to the next higher grade.

(2) Each officer of the Naval Reserve in an active status in the permanent grade of rear admiral and each officer of the Marine Corps Reserve in an active status in the permanent grade of major general shall, 30 days after he completes 35 years of service computed under subsection (d), or on the fifth anniversary of the date of his appointment to that grade, whichever is later-

(A) be transferred to the Retired Reserve, if he is qualified and applies therefor, or

(B) if he is not qualified or does not apply therefor, be discharged from his reserve component.

(3) An officer in the Naval Reserve in an active status serving in the grade of rear admiral (lower half) or rear admiral and an officer in the Marine Corps Reserve in an active status serving in the grade of brigadier general or major general may be considered for early retirement by a continuation board convened under section 6410 of this title.

(g) An officer in an active status in the Naval Reserve in the permanent grade of ensign who is found not qualified for promotion to the grade of lieutenant (junior grade), and an officer in an active status in the Marine Corps Reserve in the permanent grade of second lieutenant who is found not qualified for promotion to the grade of first lieutenant, may (unless he is sooner promoted) be eliminated from an active status.

(Added Pub. L. 85–861, §1(144)(A), Sept. 2, 1958, 72 Stat. 1509 ; amended Pub. L. 86–559, §1(46), June 30, 1960, 74 Stat. 274 ; Pub. L. 96–513, title III, §337(a), Dec. 12, 1980, 94 Stat. 2900 ; Pub. L. 97–86, title IV, §405(b)(1), Dec. 1, 1981, 95 Stat. 1105 ; Pub. L. 98–525, title V, §528(c), Oct. 19, 1984, 98 Stat. 2526 ; Pub. L. 99–145, title V, §514(b)(1), Nov. 8, 1985, 99 Stat. 628 ; Pub. L. 102–190, div. A, title XI, §1131(8)(A), Dec. 5, 1991, 105 Stat. 1506 ; Pub. L. 103–337, div. A, title XVI, §§1628, 1673(c)(1), Oct. 5, 1994, 108 Stat. 2962 , 3016.)

Amendment of Section

Pub. L. 103–337, div. A, title XVI, §§1628, 1691(b)(1), Oct. 5, 1994, 108 Stat. 2962 , 3026, provided that, effective Oct. 1, 1996, this section is amended-

(1) in subsection (a)-

(A) by inserting "while on the active-duty list" after "to the next higher grade"; and

(B) by striking out the period at the end and inserting in lieu thereof "or released from active duty and placed on the reserve active-status list.";

(2) in subsection (b), by striking out "or (f)";

(3) in subsection (c)-

(A) by inserting "(1)" after "(c)";

(B) by striking out "lieutenant commander or above" both places it appears and inserting in lieu thereof "lieutenant commander or commander";

(C) by striking out "major or above" both places it appears and inserting in lieu thereof "major or lieutenant colonel";

(D) by inserting "while on the active-duty list" after "to the next higher grade" in the first sentence;

(E) in the table-

(i) by striking out the line relating to the grades of captain in the Navy and colonel in the Marine Corps; and

(ii) by striking out "26 years" and inserting in lieu thereof "28 years";

(F) by designating the sentence after the table as paragraph (2) and in that sentence striking out "the first sentence of this subsection" and inserting in lieu thereof "the first sentence of paragraph (1)";

(G) by designating the next sentence as paragraph (3) and in that sentence striking out "the first two sentences of this subsection" and inserting in lieu thereof "paragraph (1)"; and

(H) by designating the last sentence as paragraph (4) and in that sentence-

(i) striking out "the first two sentences of this subsection" and inserting in lieu thereof "paragraph (1)"; and

(ii) striking out "captain or"; and

(4) by striking out subsections (e), (f), and (g).

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
6389(a)	50:1311(c) (1st sentence).	Sept. 3, 1954, ch. 1257, §411(c) (1st sentence), 68 Stat. 1170 .
6389(b)	50:1311(a) (as applicable to 1311(c)).	Sept. 3, 1954, ch. 1257, §411(a) (as applicable to 411(c)), 68 Stat. 1169 .
6389(c)	50:1311(c) (2d sentence).	Sept. 3, 1954, ch. 1257, §411(c) (2d sentence), 68 Stat. 1170 .
6389(d)	50:1311(c) (less 1st and 2d sentences).	Sept. 3, 1954, ch. 1257, §411(c) (less 1st and 2d sentences), 68 Stat. 1170 .
6389(e)	[No source].	[No source].

In subsection (a), the words "who is considered as having twice failed of selection for promotion" are substituted for the words "after failing of selection for promotion * * * a second time" to conform to similar statements in this title. (See the revision note on section 5776.) The words "may be retained in" are omitted as surplusage, since the authority to eliminate such officers from an active status is discretionary with the Secretary.

Subsection (e) is added to avoid conflict with 50:1311(d) and (e), codified in sections 6397 and 6403 of this title. 50:1311(d) and (e) contain special provisions for "women officers" and officers in the Nurse Corps, respectively, so that officers in these categories must be excepted from this section. Women officers appointed under the act of June 24, 1952, ch. 457 (66 Stat. 155; 34 U.S.C. 21e) (codified in section 5581 of this title), are not "women officers" within the meaning of 50:1311(d), however, but are required to be promoted, retired, or eliminated from active status as if they were men. (See the revision note on section 5665 of this title.) The application of this section to these officers is therefore made explicit.

Both men and women are eligible for appointment as reserve officers in the Nurse Corps and are subject to the special provisions relating to that corps.

References in Text

Section 1332 of this title, referred to in subsec. (c), was renumbered section 12732 of this title and amended generally by Pub. L. 103–337, div. A, title XVI, §1662(j)(1), Oct. 5, 1994, 108 Stat. 2998 , 3000.

Amendments

1994-Subsec. (a). Pub. L. 103–337, §1673(c), substituted "12645" for "1005".

1991-Subsec. (d). Pub. L. 102–190 substituted "W–5" for "W–4".

1985-Subsec. (f)(1), (3). Pub. L. 99–145 substituted "rear admiral (lower half)" for "commodore".

1984-Subsec. (g). Pub. L. 98–525 added subsec. (g).

1981-Subsec. (f)(1), (3). Pub. L. 97–86 substituted "commodore" for "commodore admiral".

1980-Subsec. (b). Pub. L. 96–513, §337(a)(1), substituted "subsection (a) or (f)" for "subsection (a)".

Subsec. (d). Pub. L. 96–513, §337(a)(2), substituted "as the years of active commissioned service of any regular officer on the active-duty" for "as any officer in the line on the active" and "or any regular officer on the active-duty list of the Marine Corps" for "or any officer on the active list of the Marine Corps".

Subsec. (e). Pub. L. 96–513, §337(a)(3), substituted "does not apply to" for "applies to women officers appointed under section 5581 of this title, but not to other".

Subsec. (f). Pub. L. 96–513, §337(a)(4), added subsec. (f).

1960-Subsec. (c). Pub. L. 86–559 empowered the Secretary to defer the retirement or discharge of officers serving in the grade of lieutenant commander in the Ready Reserve, in the permanent grade of lieutenant commander or above in the Naval Reserve, in the permanent grade of major or above in the Marine Corps Reserve, and in the permanent grade of captain or commander in the Medical Corps, Chaplain Corps, or Dental Corps in the Naval Reserve.

Effective Date of 1994 Amendment

Amendment by section 1673(c)(1) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, and amendment by section 1628 of Pub. L. 103–337 effective Oct. 1, 1996, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Effective Date of 1991 Amendment

Amendment by Pub. L. 102–190 effective Feb. 1, 1992, see section 1132 of Pub. L. 102–190, set out as a note under section 521 of this title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–86 effective Sept. 15, 1981, see section 405(f) of Pub. L. 97–86, set out as a note under section 101 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Sept. 15, 1981, but the authority to prescribe regulations under the amendment by Pub. L. 96–513 effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title.

Section Referred to in Other Sections

This section is referred to in sections 123, 12646 of this title.

¹ See References in Text note below.