§8368. Commissioned officers: effect of failure of promotion to captain, major, or lieutenant colonel

(a) In this chapter, the term "deferred officer" means any of the following officers who has been considered, for the first time under this chapter, by a selection board for promotion to the next grade higher than his current reserve grade but not recommended for that promotion, who has been examined for the first time for Federal recognition in the next grade higher than his current reserve grade, but found not qualified for that recognition, or who has been recommended or found qualified and declined that promotion:

(1) An officer in the reserve grade of first lieutenant or captain.

(2) An officer in the reserve grade of major.

(b) The years of service computed under sections 8360(e) and 8366(e) of this title, with which a deferred officer is credited shall be reduced, if necessary, so that one year after the date on which he would have been promoted if he had been recommended by a selection board he will not have more than four years of service computed under section 8360(e) of this title if he is in the reserve grade of first lieutenant, or seven years of that service if he is in the reserve grade of captain or major. For the purpose of this subsection, the date on which a deferred officer would have been promoted had he been recommended is the earlier of the following dates-

(1) the earliest date of appointment in the next higher reserve grade of any officer who, before the deferred officer's loss of seniority, was junior to him; or

(2) the date on which he would have completed the amount of service prescribed in columns 2 and 3 of section 8366(a) of this title, if his years of service had not been reduced under this section.

(c) Unless he is sooner recommended for promotion under section 8372 of this title or examined for Federal recognition in the next higher grade-

(1) an officer who is deferred because he was considered but not recommended by a selection board shall be considered for promotion by the next selection board considering officers of his grade and category under section 8366 of this title; and

(2) an officer who is deferred because he was found not qualified for Federal recognition shall be considered for promotion by the next appropriate selection board convened under section 8366 of this title when the officer next junior to him is also considered, but not before one year after the date on which he was found not qualified for Federal recognition.

(d) An officer who is deferred because he was considered but not recommended by a selection board may, if he is appointed to the next higher grade in the Air National Guard, be examined for Federal recognition in that grade at any time before the date on which he must be considered for promotion under subsection (c)(1).

(e) An officer who is deferred because he was found not qualified for Federal recognition in the next higher grade may be again examined for Federal recognition in that grade at any time before the date on which he must be considered for promotion under subsection (c)(2), but not before one year after the date on which he was first found not qualified for Federal recognition in that grade.

(f) A deferred officer who is again considered for promotion under subsection (c)(1) and is not recommended for promotion, or is recommended and declines the promotion, may not thereafter be considered for promotion or examined for Federal recognition, and shall be treated as provided in section 8846(a) of this title and section 323(e) of title 32.

(g) A deferred officer who is again considered for promotion or examined for Federal recognition in the next higher grade under subsection (c)(2), (d), or (e), and is not recommended for promotion or found qualified for Federal recognition, or is recommended or found qualified and declines the promotion, may not thereafter be considered for promotion or examined for Federal recognition, and shall be treated as provided in section 8846(b) of this title and section 323(e) of title 32.

(Added Pub. L. 85–861, §1(178)(C), Sept. 2, 1958, 72 Stat. 1525 ; amended Pub. L. 86–559, §1(55), June 30, 1960. 74 Stat. 276 ; Pub. L. 90–130, §1(28)(B), Nov. 8, 1967, 81 Stat. 382 ; Pub. L. 100–180, div. A, title XII, §1231(19)(B), Dec. 4, 1987, 101 Stat. 1161 .)

Repeal of Section

Section repealed effective Oct. 1, 1996, see note set out preceding section 8351 of this title.

Historical and Revision Notes

Revised section	Source (U.S. Code)	Source (Statutes at Large)
8368(a) 8368(b) 8368(c) 8368(d) 8368(e) 8368(f)	50:1331(b)(3). 50:1352(a). 50:1352(b), (c). 50:1352(d)(1). 50:1352(d)(2). 50:1352(e)(1) (1st 44 words).	Sept. 3, 1954, ch. 1257, §§501(b)(3), 522(a)–(d), (e)(1) (1st 44 words), (2) (1st 64 words), 68 Stat. 1171 , 1180, 1181.
8368(g)	50:1352(e)(2) (1st 64 words).

In subsection (a), the words "than his current reserve grade" are inserted for clarity. In clauses (2) and (3), the word "female" is inserted before the words "Air Force nurse or medical specialist", since the source text applied only to women. (See opinion of The Judge Advocate General of the Air Force dated February 1, 1956 (4th par. on page 3).) In clause (3), the words "or a female officer who is not designated under section 8067 of this title or appointed in the Air Force with a view to designation under that section" are substituted for the words "female Reserve officers appointed under section 310 of the Women's Armed Services Integration Act of 1948", since that section was repealed by section 803 of the Armed Forces Reserve Act of 1952 (66 Stat. 506). The quoted words were intended to refer to those female officers who were appointed with a view to performing general duties and were not intended to refer to those appointed with a view to performing professional duties.

In subsection (b), 50:1352(a)(1)(A) is omitted, since officers who are recommended by a previous promotion board must be promoted, under section 8363 of this title, before officers recommended by a later board. Clause (2) is substituted for 50:1352(a)(2)(B).

In subsection (d), the words "or promoted to" are omitted as covered by the words "appointed to".

In subsection (f), the words "by that selection board" are omitted as surplusage.

Amendments

1987-Subsec. (a). Pub. L. 100–180 inserted "the term" after "In this chapter,".

1967-Subsec. (a)(2). Pub. L. 90–130 struck out ", other than an Air Force nurse or medical specialist or a female officer who is not designated under section 8067(a)–(d) or (g)–(i) of this title or appointed in the Air Force with a view to designation under that section" after "grade of major".

1960-Subsec. (a). Pub. L. 86–559, §1(55)(A), included within definition of "deferred officer" any officer who has been recommended or found qualified and declined that promotion, and Air Force nurses and medical specialists in the grade of captain.

Subsec. (f). Pub. L. 86–559, §1(55)(B), included deferred officers who are recommended and decline the promotion.

Subsec. (g). Pub. L. 86–559, §1(55)(C), included officers who are recommended or found qualified and decline the promotion.

Section Referred to in Other Sections

This section is referred to in sections 123, 8360, 8846 of this title; title 32 section 323.