§6403. Naval Reserve and Marine Corps Reserve; women officers: elimination from active status

(a) A woman officer in any grade in the Naval Reserve, other than an officer in the Nurse Corps or an officer appointed under section 5581 of this title before September 15, 1981, may, in the discretion of the Secretary of the Navy, be eliminated from an active status under the conditions prescribed by this chapter or chapter 36 for the retirement or discharge of a woman line regular officer in the same grade on the active-duty list of the Navy, or at any time after those conditions are met.

(b) A woman officer in any grade in the Marine Corps Reserve may, in the discretion of the Secretary, be eliminated from an active status under the conditions prescribed by this chapter or chapter 36 for the retirement or discharge of a woman officer in the same grade on the active-duty list of the Marine Corps, or at any time after those conditions are met.

(c) For the purposes of subsections (a) and (b) all commissioned service is considered active commissioned service.

(d) An officer who is to be eliminated from an active status under this section shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve and, if she requests it, shall be so transferred. If she is not transferred to the Retired Reserve, she 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.

(e) An officer may be eliminated from an active status under this section, only upon the recommendation of a board appointed by the Secretary and convened at such times as he directs.

(Added Pub. L. 85–861, §1(144)(E), Sept. 2, 1958, 72 Stat. 1511 ; amended Pub. L. 96–513, title V, §503(49), Dec. 12, 1980, 94 Stat. 2915 ; Pub. L. 97–22, §10(b)(10)(B), July 10, 1981, 95 Stat. 137 .)

Repeal of Section

Pub. L. 103–337, div. A, title XVI, §§1629(b)(3), 1691(b)(1), Oct. 5, 1994, 108 Stat. 2963 , 3026, provided that, effective Oct. 1, 1996, this section is repealed.

In subsection (a), the words "other than an officer in the Nurse Corps" are substituted for the words "Except as otherwise provided in this chapter". The words "or an officer appointed under section 5581 of this title" are inserted to except from the operation of this section women appointed in the Medical, Dental, and Medical Service Corps under the Act of June 24, 1952, ch. 457 (66 Stat. 155; 34 U.S.C. 21e). These women are not "women officers" within the meaning of the Reserve Officer Personnel Act of 1954 (see the revision note on section 5665 of this title), and are therefore subject to elimination from an active status under section 6389, rather than under this section.

In subsections (a) and (b), the words "retained in or" are omitted as surplusage, since the Secretary has discretion as to whether officers are to be eliminated from an active status. The word "discharge" is substituted for the words "separation from the active list" to conform to the language used in sections 6401 and 6402 of this title. The words "under the conditions prescribed by this chapter for the retirement * * * of a woman line [the word "line" is omitted in subsection (b)] officer in the same grade on the active list" are substituted for the words "at the times prescribed by law for the retirement * * * of the woman line officer * * * next junior to her" for clarity. The source is ambiguous and subject to misinterpretation as is shown by testimony before the Committee on Armed Services, United States Senate, on May 5, 1955.

Bills to amend the Reserve Officer Personnel Act of 1954, introduced in the 84th Congress, 1st Session, contained a proposed amendment to section 411(d) that would have provided that women reserve officers could be eliminated from an active status under the same relative conditions as would require the retirement or discharge of a contemporary male officer on the active list. The proposed amendment was rejected by the Committee on Armed Services, United States Senate, and was not incorporated in the bill as sent to the House and enacted (act of June 30, 1955, ch. 247, 69 Stat. 218 ). During the hearings, however, it was brought out that certain reserve officers and others had interpreted section 411(d) as authorizing the elimination of a woman reserve officer from active status upon the happening of some event to the woman regular officer who chanced to be her running mate at the moment, regardless of the reserve officer's own age, length of service, or promotion status. That this is not the intended meaning is shown by the provision that all commissioned service is considered active commissioned service for the purpose of this subsection, a provision that would be meaningless if the reserve officer's status were dependent on that of her running mate. The interpretation placed on the subsection by the Department of the Navy was explained by the Assistant Secretary of the Navy (Personnel and Reserve Forces) as follows: "Under the present language of this section, women Reserve officers may be retained in or eliminated from active status, in the discretion of the Secretary, under conditions similar to those prescribed for the separation or retirement of a woman Regular officer." In addition, information furnished to the Committee by the Department of the Navy contained the following comments on specific questions:

"2. 'Under section 411(d) as now contained in Public Law 773, 83d Congress, could a woman officer of the Naval or Marine Corps Reserve become ineligible to earn credit toward retirement as provided by title III of Public Law 810, 80th Congress, at the time that the female Regular officer next junior to her is separated for statutory reason-or at any time thereafter?'

"Comment.-No; unless by sheer coincidence the rules which prescribe the time of separation of the woman Regular officer would produce exactly the same date when applied to the facts pertaining to the woman Reserve officer. This provision assimilates the rules applying to contemporary women regulars, rather than the mere fact of separation for any statutory reason.

"3. 'Would the loss of retirement opportunities by a Naval or Marine Corps Reserve officer under the provision of section 411(d) * * * as now contained in Public Law 773 be for any reason related to her own age, performance, qualifications, or availability?'

"Comment.-Yes; under section 411(d) as contained in Public Law 773, the facts of the woman Reserve officer's own situation would determine liability for elimination from active status." (Hearings on S. 1718 before the Committee on Armed Services, United States Senate, May 5, 1955, pp. 5, 9.)

The revised section is accordingly worded so as to make this meaning clear.

Amendments

1981-Subsec. (a). Pub. L. 97–22 substituted "September 15, 1981" for "the effective date of the Defense Officer Personnel Management Act".

1980-Subsec. (a). Pub. L. 96–513, §503(49)(A)–(D), inserted "before the effective date of the Defense Officer Personnel Management Act" after "under section 5581 of this title", inserted "or chapter 36" after "conditions prescribed by this chapter", and substituted "women line regular officer" for "women line officer", and "active-duty list" for "active list".

Subsec. (b). Pub. L. 96–513, §503(49)(B), (D), inserted "or chapter 36" after "conditions prescribed by this chapter" and substituted "active-duty list" for "active list".

Effective Date of 1981 Amendment

Section 10(b) of Pub. L. 97–22 provided that the amendment made by that section is effective Sept. 15, 1981.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Sept. 15, 1981, 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.