§8380. Commissioned officers: promotion of reserve commissioned officers on active duty and not on the active duty list

(a) Notwithstanding any other provision of law, a reserve commissioned officer on active duty for duty described in clause (1)(B), (1)(C), or (7) of section 523(b) of this title who is recommended by a selection board for promotion to, or found qualified for Federal recognition in, a higher reserve grade may, in accordance with regulations prescribed by the Secretary of Defense and subject to the limitations of section 524 ¹ of this title, be promoted to or extended Federal recognition in such higher reserve grade and may continue to serve on active duty, or be ordered to serve on active duty, in such higher reserve grade.

(b) Notwithstanding any other provision of law, the service in grade for promotion purposes only of any reserve commissioned officer who is promoted to or extended Federal recognition in a higher reserve grade but whose promotion to or recognition in such higher reserve grade was delayed solely because of limitations imposed in accordance with regulations prescribed by the Secretary of Defense under subsection (a) or contained in section 524 ¹ of this title, is the date such officer would have been promoted to or recognized in such higher reserve grade if the limitations did not exist. In computing service in grade for the purposes of determining the date for discharge or transfer to the Retired Reserve under chapter 863 of this title, the date the officer would have been promoted to or recognized in such higher grade had the limitations not existed shall be considered the date of promotion to or recognition in such higher grade.

(c) Regulations prescribed by the Secretary of Defense under subsection (a) shall prohibit the promotion of an officer under the authority of that subsection unless the duty assignment of the officer requires a higher grade than the grade currently held by the officer.

(d) The authority to promote officers under this section shall expire on September 30, 1995.

(Added Pub. L. 85–861, §1(178)(C), Sept. 2, 1958, 72 Stat. 1530 ; amended Pub. L. 86–559, §1(62), June 30, 1960, 74 Stat. 277 ; Pub. L. 98–94, title X, §1015(b)(1), Sept. 24, 1983, 97 Stat. 667 ; Pub. L. 99–145, title V, §521(b), Nov. 8, 1985, 99 Stat. 631 ; Pub. L. 100–180, div. A, title V, §502(b)(1), Dec. 4, 1987, 101 Stat. 1085 ; Pub. L. 101–189, div. A, title V, §503(b)(1), Nov. 29, 1989, 103 Stat. 1437 ; Pub. L. 102–484, div. A, title V, §519(b), Oct. 23, 1992, 106 Stat. 2408 ; Pub. L. 103–160, div. A, title V, §514(b), Nov. 30, 1993, 107 Stat. 1649 .)

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)
8380(a) 8380(b) 8380(c)	50:1341(d). 50:1341(b). 50:1341(c).	Sept. 3, 1954, ch. 1257, §511 (less (a)); restated June 30, 1955, ch. 247, §4(h), 69 Stat. 220 .

In subsection (a), the words "while on that period of active duty" are omitted as surplusage.

References in Text

Section 524 of this title, referred to in subsecs. (a) and (b), was renumbered section 12011 of this title by Pub. L. 103–337, div. A, title XVI, §1662(a)(2)(A), Oct. 5, 1994, 108 Stat. 2988 .

Amendments

1993-Subsec. (d). Pub. L. 103–160 substituted "September 30, 1995" for "September 30, 1993".

1992-Subsec. (d). Pub. L. 102–484 substituted "September 30, 1993" for "September 30, 1992".

1989-Subsec. (d). Pub. L. 101–189 substituted "September 30, 1992" for "September 30, 1989".

1987-Subsec. (d). Pub. L. 100–180 substituted "September 30, 1989" for "September 30, 1987".

1985-Subsec. (d). Pub. L. 99–145 substituted "September 30, 1987" for "September 30, 1985".

1983-Pub. L. 98–94 amended section generally substituting "promotion of reserve commissioned officers on active duty and not on the active duty list" for "status while serving on active duty after promotion" in section catchline and substituting new text for prior text that read as follows:

"(a) A reserve commissioned officer on active duty (other than for training) who is promoted to a reserve grade that is higher than the grade in which he is serving may not serve on active duty in the reserve grade to which he is promoted and is not entitled to the rank, pay, or allowances of that higher grade unless he is ordered to serve on active duty in that higher grade or is temporarily promoted to that higher grade.

"(b) A reserve commissioned officer on active duty (other than for training) who is promoted to a reserve grade that is higher than the grade in which he is serving continues to serve on active duty in the grade in which he was serving immediately before that promotion, and he may be appointed in a temporary grade that is equal to the grade in which he was so serving before that promotion. Unless he expressly declines it, an officer who is appointed in a temporary grade under this subsection is considered to have accepted the appointment on the date of the orders announcing it, and he need not take a new oath of office upon being so appointed. However, he may decline the temporary appointment within six months after the date of the orders announcing it. If he has completed the period of active duty (other than for training) that he is required by law or regulation to perform as a member of a reserve component and declines the temporary appointment, he shall be released from active duty. If he has not completed that period of active duty, he shall be retained on active duty in the grade in which he was serving before the promotion and may not be released from active duty on his application until he completes the period of active duty he is so required by law or regulation to perform."

1960-Subsec. (b). Pub. L. 86–559, §1(62)(A), (B), substituted "A" for "Except as provided in subsection (c), a", and "If he has completed the period of active duty (other than for training) that he is required by law or regulation to perform as a member of a reserve component and declines the temporary appointment, he shall be released from active duty. If he has not completed that period of active duty, he shall be retained on active duty in the grade in which he was serving before the promotion and may not be released from active duty on his application until he completes the period of active duty he is so required by law or regulation to perform" for "If he so declines the appointment, he shall be released from active duty".

Subsec. (c). Pub. L. 86–559, §1(62)(C), repealed subsec. (c) which prohibited the promotion of a reserve commissioned officer on active duty (other than for training) who has not completed the period of active duty that he is required to perform until he completes that period of active duty or until he is temporarily promoted to a higher grade.

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–160 effective Sept. 30, 1993, see section 514(d)(1) of Pub. L. 103–160, set out as a note under section 3359 of this title.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–484 effective Sept. 30, 1992, see section 519(d)(1) of Pub. L. 102–484, set out as a note under section 3359 of this title.

Date of Rank for Certain Appointments

For date of rank of certain Reserve officers appointed to a higher reserve grade on or after specified dates, see Date of Rank for Certain Appointments note under section 3380 of this title.

Section Referred to in Other Sections

This section is referred to in sections 123, 8360 of this title.

¹ See References in Text note below.