§1370. Commissioned officers: general rule; exceptions

(a) Rule for Retirement in Highest Grade Held Satisfactorily.-(1) Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

(2)(A) In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years in the case of retirements effective during the period beginning on October 1, 1990, and ending on December 31, 2001.

(B) The President may waive subparagraph (A) in individual cases involving extreme hardship or exceptional or unusual circumstances. The authority of the President under the preceding sentence may not be delegated.

(C) In the case of a grade below the grade of lieutenant general or vice admiral, the number of members of one of the armed forces in that grade for whom a reduction is made during any fiscal year in the period of service-in-grade otherwise required under this paragraph may not exceed the number equal to two percent of the authorized active-duty strength for that fiscal year for officers of that armed force in that grade.

(3) A reserve or temporary officer who is notified that he will be released from active duty without his consent and thereafter requests retirement under section 3911, 6323, or 8911 of this title and is retired pursuant to that request is considered for purposes of this section, to have been retired involuntarily. An officer retired pursuant to section 1186(b)(1) of this title is considered for purposes of this section to have been retired voluntarily.

(b) Retirement in Next Lower Grade.-An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

(c) Officers in O–9 and O–10 Grades.-(1) An officer who is serving in or has served in the grade of general or admiral or lieutenant general or vice admiral may be retired in that grade under subsection (a) only after the Secretary of Defense certifies in writing to the President and Congress that the officer served on active duty satisfactorily in that grade.

(2) In the case of an officer covered by paragraph (1), the three-year service-in-grade requirement in paragraph (2)(A) of subsection (a) may not be reduced or waived under that subsection-

(A) while the officer is under investigation for alleged misconduct; or

(B) while there is pending the disposition of an adverse personnel action against the officer for alleged misconduct.

(d) Reserve Officers.-(1) Unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.

(2) In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.

(3)(A) In order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years.

(B) A person covered by subparagraph (A) who has completed at least six months of satisfactory service in grade and is transferred from an active status or discharged as a reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person's age or years of service may be credited with satisfactory service in the grade in which serving at the time of such transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade.

(C) If a person covered by subparagraph (A) has completed at least six months of satisfactory service in grade, the person was serving in that grade while serving in a position of adjutant general required under section 314 of title 32 or while serving in a position of assistant adjutant general subordinate to such a position of adjutant general, and the person has failed to complete three years of service in that grade solely because the person's appointment to such position has been terminated or vacated as described in section 324(b) of such title, then such person may be credited with satisfactory service in that grade, notwithstanding the failure to complete three years of service in that grade.

(D) To the extent authorized by the Secretary of the military department concerned, a person who, after having been recommended for promotion in a report of a promotion board but before being promoted to the recommended grade, served in a position for which that grade is the minimum authorized grade may be credited for purposes of subparagraph (A) as having served in that grade for the period for which the person served in that position while in the next lower grade. The period credited may not include any period before the date on which the Senate provides advice and consent for the appointment of that person in the recommended grade.

(E) To the extent authorized by the Secretary of the military department concerned, a person who, after having been found qualified for Federal recognition in a higher grade by a board under section 307 of title 32, serves in a position for which that grade is the minimum authorized grade and is appointed as a reserve officer in that grade may be credited for the purposes of subparagraph (A) as having served in that grade. The period of the service for which credit is afforded under the preceding sentence may only be the period for which the person served in the position after the Senate provides advice and consent for the appointment.

(F) A person covered by subparagraph (A) who has completed at least six months of satisfactory service in a grade above colonel or (in the case of the Navy) captain and, while serving in an active status in such grade, is involuntarily transferred (other than for cause) from active status may be credited with satisfactory service in the grade in which serving at the time of such transfer, notwithstanding failure of the person to complete three years of service in that grade.

(4) A person whose length of service in the highest grade held does not meet the service in grade requirements specified in this subsection shall be credited with satisfactory service in the next lower grade in which that person served satisfactorily (as determined by the Secretary of the military department concerned) for not less than six months.

(5) The Secretary of Defense may authorize the Secretary of a military department to reduce the 3-year period required by paragraph (3)(A) to a period not less than 2 years in the case of retirements effective during the period beginning on October 17, 1998, and ending on December 31, 2001. The number of reserve commissioned officers of an armed force in the same grade for whom a reduction is made during any fiscal year in the period of service-in-grade otherwise required under this paragraph may not exceed the number equal to 2 percent of the strength authorized for that fiscal year for reserve commissioned officers of that armed force in an active status in that grade.

(Added Pub. L. 96–513, title I, §112, Dec. 12, 1980, 94 Stat. 2876 ; amended Pub. L. 101–510, div. A, title V, §522, Nov. 5, 1990, 104 Stat. 1561 ; Pub. L. 103–160, div. A, title V, §561(d), Nov. 30, 1993, 107 Stat. 1667 ; Pub. L. 103–337, div. A, title XVI, §§1641, 1671(c)(7)(B), Oct. 5, 1994, 108 Stat. 2968 , 3014; Pub. L. 104–106, div. A, title V, §502(a), (b), (f), (g), Feb. 10, 1996, 110 Stat. 292 , 293; Pub. L. 104–201, div. A, title V, §544(a), Sept. 23, 1996, 110 Stat. 2522 ; Pub. L. 105–261, div. A, title V, §§512(a), 513(a), 561(d), (o), Oct. 17, 1998, 112 Stat. 2007 , 2025, 2026; Pub. L. 106–65, div. A, title X, §1066(a)(9), (b)(3), Oct. 5, 1999, 113 Stat. 770 , 772; Pub. L. 106–398, §1 [[div. A], title V, §571(d)], Oct. 30, 2000, 114 Stat. 1654 , 1654A-134.)

Amendments

2000-Subsecs. (a)(2)(A), (d)(5). Pub. L. 106–398 substituted "December 31, 2001" for "September 30, 2001".

1999-Subsec. (d)(1). Pub. L. 106–65, §1066(a)(9)(A), substituted "chapter 1223" for "chapter 1225".

Subsec. (d)(3)(F). Pub. L. 106–65, §1066(b)(3), made technical amendment to Pub. L. 105–261, §513(a). See 1998 Amendment note below.

Subsec. (d)(5). Pub. L. 106–65, §1066(a)(9)(B), substituted "October 17, 1998," for "the date of the enactment of this paragraph".

1998-Subsec. (a)(2)(A). Pub. L. 105–261, §561(d), substituted "during the period beginning on October 1, 1990, and ending on September 30, 2001" for "during the nine-year period beginning on October 1, 1990".

Subsec. (d)(3)(E). Pub. L. 105–261, §512(a), amended subpar. (E) generally. Prior to amendment, subpar. (E) read as follows: "To the extent authorized by the Secretary of the military department concerned, a person who, after having been extended temporary Federal recognition as a reserve officer of the Army National Guard in a particular grade under section 308 of title 32 or temporary Federal recognition as a reserve officer of the Air National Guard in a particular grade under such section, served in a position for which that grade is the minimum authorized grade may be credited for purposes of subparagraph (A) as having served in that grade for the period for which the person served in that position while extended the temporary Federal recognition, but only if the person was subsequently extended permanent Federal recognition as a reserve officer in that grade and also served in that position after being extended the permanent Federal recognition."

Subsec. (d)(3)(F). Pub. L. 105–261, §513(a), as amended by Pub. L. 106–65, §1066(b)(3), added subpar. (F).

Subsec. (d)(5). Pub. L. 105–261, §561(o), added par. (5).

1996-Subsec. (a). Pub. L. 104–106, §502(g)(1), inserted heading.

Subsec. (a)(2)(A). Pub. L. 104–106, §502(a)(1), struck out "and below lieutenant general or vice admiral" after "commander".

Subsec. (a)(2)(C). Pub. L. 104–106, §502(f), substituted "In the case of a grade below the grade of lieutenant general or vice admiral, the number of members of one of the armed forces in that grade" for "The number of officers in an armed force in a grade".

Subsec. (b). Pub. L. 104–106, §502(g)(2), inserted heading.

Subsec. (c). Pub. L. 104–106, §502(b), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "Upon retirement an officer of the Army, Navy, Air Force, or Marine Corps who is serving in or has served in a position of importance and responsibility designated by the President to carry the grade of general or admiral or lieutenant general or vice admiral under section 601 of this title may, in the discretion of the President, be retired, by and with the advice and consent of the Senate, in the highest grade held by him while serving on active duty."

Subsec. (d). Pub. L. 104–106, §502(g)(3), inserted heading.

Subsec. (d)(2). Pub. L. 104–201, §544(a)(2), redesignated subpar. (A) as entire par. (2). Former subpar. (B) redesignated subsec. (d)(3).

Subsec. (d)(2)(B). Pub. L. 104–106, §502(a)(2), struck out "and below lieutenant general or vice admiral" after "commander" in first sentence.

Subsec. (d)(3). Pub. L. 104–201, §544(a)(3), (4), redesignated subsec. (d)(2)(B) as par. (3), designated first and second sentences as subpars. (A) and (B), respectively, in subpar. (B), substituted "subparagraph (A)" for "the preceding sentence", and added subpars. (C) to (E). Former par. (3) redesignated (4).

Subsec. (d)(4). Pub. L. 104–201, §544(a)(1), redesignated par. (3) as (4).

1994-Subsec. (a)(1). Pub. L. 103–337, §1671(c)(7)(B), substituted "chapter 1223" for "chapter 67".

Subsec. (d). Pub. L. 103–337, §1641, added subsec. (d).

1993-Subsec. (a)(2)(A). Pub. L. 103–160 substituted "nine-year period" for "five-year period".

1990-Subsec. (a)(2). Pub. L. 101–510 inserted "(A)" after "(2)", inserted before period at end of first sentence ", except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years in the case of retirements effective during the five-year period beginning on October 1, 1990", designated second and third sentences as subpar. (B), substituted "subparagraph (A)" for "the preceding sentence", and added subpar. (C).

Effective Date of 1999 Amendment

Pub. L. 106–65, div. A, title X, §1066(b), Oct. 5, 1999, 113 Stat. 772 , provided that the amendment made by section 1066(b) is effective Oct. 17, 1998, and as if included in the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. 105–261, as enacted.

Effective Date of 1998 Amendment

Pub. L. 105–261, div. A, title V, §512(b), Oct. 17, 1998, 112 Stat. 2007 , provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 17, 1998] and shall apply with respect to appointments to higher grades that take effect after that date."

Pub. L. 105–261, div. A, title V, §513(b), Oct. 17, 1998, 112 Stat. 2008 , provided that: "Subparagraph (F) of such section [subsec. (d)(3)(F) of this section], as added by subsection (a), shall take effect on the date of the enactment of this Act [Oct. 17, 1998] and shall apply with respect to transfers referred to in such subparagraph that are made on or after that date."

Effective Date of 1996 Amendment

Section 502(e) of Pub. L. 104–106 provided that: "The amendment made by subsection (a)(2) [amending this section] shall take effect on October 1, 1996, immediately after subsection (d) of section 1370 of title 10, United States Code, takes effect under section 1691(b)(1) of the Reserve Officer Personnel Management Act (108 Stat. 3026) [Pub. L. 103–337, set out as a note under section 10001 of this title]."

Effective Date of 1994 Amendment

Amendment by section 1671(c)(7)(B) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, and amendment by section 1641 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

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

Transition Provisions Under Defense Officer Personnel Management Act

For provisions relating to the time-in-grade requirement for voluntary retirement of officers not subsequently promoted, see section 629 of Pub. L. 96–513, set out as a note under section 611 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1406, 1407, 3961, 6151, 6323, 6325, 6383, 8961, 12771 of this title; title 33 section 857a; title 42 section 213a.