PROMOTION AND RETENTION OF RESERVE OFFICERS.

SEC. 1611. PROMOTION AND RETENTION OF RESERVE OFFICERS. Title 10, United States Code, is amended by adding at the end the following new subtitle: “Subtitle E— Reserve Components “PART I—ORGANIZATION AND ADMINISTRATION “Chap. Sec. “1001. Definitions 10001 “1003. Reserve Components Generally 10101 “1005. Elements of Reserve Components 10141 “1007. Administration of Reserve Components 10201 “1009. Reserve Forces Policy Boards and Committees 10301 “1011. National Guard Bureau 10501 “1013. Budget Information and Annual Reports to Congress 10541 “PART II—PERSONNEL GENERALLY “1201. Authorized Strengths and Distribution in Grade 12001 “1203. Enlisted Members 12101 “1205. Appointment of Reserve Officers 12201 “1207. Warrant Officers 12241 “1209. Active Duty 12301 “1211. National Guard Members in Federal Service 12401 “1213. Special Appointments, Assignments, Details, and Duties 12501 108 STAT. 2922 “1215. Miscellaneous Prohibitions and Penalties [No present sections] “1217. Miscellaneous Rights and Benefits 12601 “1219. Standards and Procedures for Retention and Promotion 12641 “1221. Separation 12681 “1223. Retired Pay for Non-Regular Service 12731 “1225. Retired Grade 12771 “PART III—PROMOTION AND RETENTION OF OFFICERS ON THE RESERVE ACTIVE-STATUS LIST “1401. Applicability and Reserve Active-Status Lists 14001 “1403. Selection Boards 14101 “1405. Promotions 14301 “1407. Failure of Selection for Promotion and Involuntary Separation 14501 “1409. Continuation of Officers on the Reserve-Active Status List and Selective Early Removal 14701 “1411. Additional Provisions Relating to Involuntary Separation 14901 “PART IV—TRAINING FOR RESERVE COMPONENTS AND EDUCATIONAL ASSISTANCE PROGRAMS “1601. Training Generally [No present sections] “1606. Educational Assistance for Members of the Selected Reserve 16131 “1608. Health Professions Stipend Program 16201 “1609. Education Loan Repayments 16301 “PART V—SERVICE, SUPPLY, AND PROCUREMENT “1801. Issue of Serviceable Material to Reserve Components [No present sections] “1803. Facilities for Reserve Components 18231 “1805. Miscellaneous Provisions 18501 “PART III— PROMOTION AND RETENTION OF OFFICERS ON THE RESERVE ACTIVE-STATUS LIST “Chap. Sec. “1401. Applicability and Reserve Active-Status Lists 14001 “1403. Selection Boards 14101 “1405. Promotions 14301 “1407. Failure of Selection for Promotion and Involuntary Separation 14501 “1409. Continuation of Officers on the Reserve Active-Status List and Selective Early Removal 14701 “1411. Additional Provisions Relating to Involuntary Separation 14901 “CHAPTER 1401— APPLICABILITY AND RESERVE ACTIVE-STATUS LISTS “Sec. “14001. Applicability of this part. “14002. Reserve active-status lists: requirement for each armed force. “14003. Reserve active-status lists: position of officers on the list. “14004. Reserve active-status lists: eligibility for Reserve promotion. “14005. Competitive categories. “14006. Determination of years in grade. “§ 14001. Applicability of this part “This chapter and chapters 1403 through 1411 of this title apply, as appropriate, to all reserve officers of the Army, Navy, Air Force, and Marine Corps except warrant officers. “§ 14002. Reserve active-status lists: requirement for each armed force “(a) The Secretary of each military department shall maintain a single list, to be known as the reserve active-status list, for 108 STAT. 2923each armed force under the Secretary’s jurisdiction. That list shall include the names of all reserve officers of that armed force who are in an active status other than those on an active-duty list described in section 620 of this title or warrant officers (including commissioned warrant officers). “(b) The reserve active-status list for the Army shall include officers in the Army Reserve and the Army National Guard of the United States. The reserve active-status list for the Air Force shall include officers in the Air Force Reserve and the Air National Guard of the United States. The Secretary of the Navy shall maintain separate lists for the Naval Reserve and the Marine Corps Reserve. “§ 14003. Reserve active-status: position of officers on the list “(a) Position on List.— Officers shall be carried on the reserve active-status list of the armed force of which they are members in the order of seniority of the grade in which they are serving in an active status. Officers serving in the same grade shall be carried in the order of their rank in that grade. “(b) Effect on Position Held by Reason of Temporary Appointment or Assignment.— An officer whose position on the reserve active-status list results from service under a temporary appointment or in a grade held by reason of assignment to a position has, when that appointment or assignment ends, the grade and position on that list that the officer would have held if the officer had not received that appointment or assignment. “§14004. Reserve active-status lists: eligibility for Reserve promotion “Except as otherwise provided by law, an officer must be on a reserve active-status list to be eligible under chapter 1405 of this title for consideration for selection for promotion or for promotion. “§ 14005. Competitive categories “Each officer whose name appears on a reserve active-status list shall be placed in a competitive category. The competitive categories for each armed force shall be specified by the Secretary of the military department concerned under regulations prescribed by the Secretary of Defense. Officers in the same competitive category shall compete among themselves for promotion. “§ 14006. Determination of years in grade “For the purpose of chapters 1403 through 1411 of this title, an officer’s years of service in a grade are computed from the officer’s date of rank in grade as determined under section 741(d) of this title. “CHAPTER 1403— SELECTION BOARDS “Sec. “14101. Convening of selection boards. “14102. Selection boards: appointment and composition. “14103. Oath of members. “14104. Confidentiality of board proceedings. “14105. Notice of convening of selection board. “14106. Communication with board by officers under consideration. “14107. Information furnished by the Secretary concerned to promotion boards. 108 STAT. 2924 “14108. Recommendations by promotion boards. “14109. Reports of promotion boards: in general. “14110. Reports of promotion boards: review by Secretary. “14111. Reports of selection boards: transmittal to President. “14112. Dissemination of names of officers selected. “§ 14101. Convening of selection boards “(a) Promotion Boards.— (1) Whenever the needs of the Army, Navy, Air Force, or Marine Corps require, the Secretary concerned shall convene a selection board to recommend for promotion to the next higher grade, under chapter 1405 of this title, officers on the reserve active-status Est of that armed force in a permanent grade from first lieutenant through brigadier general or, in the case of the Naval Reserve, lieutenant (junior grade) through rear admiral (lower half). A selection board convened under this subsection shall be known as a ‘promotion board’. “(2) A promotion board convened to recommend reserve officers of the Army or reserve officers of the Air Force for promotion (A) to fill a position vacancy under section 14315 of this title, or (B) to the grade of brigadier general or major general, shall (except in the case of a board convened to consider officers as provided in section 14301(e) of this title) be known as a ‘vacancy promotion board’. Any other promotion board convened under this subsection shall be known as a ‘mandatory promotion board’. “(b) Continuation Boards.— Whenever the needs of the Army, Navy, Air Force, or Marine Corps require, the Secretary concerned may convene a selection board to recommend officers of that armed force— “(1) for continuation on the reserve active-status list under section 14701 of this title; “(2) for selective early removal from the reserve active-status list under section 14704 of this title; or “(3) for selective early retirement under section 14705 of this title. A selection board convened under this subsection shall be known as a ‘continuation board’. “§ 14102. Selection boards: appointment and composition “(a) Appointment.— Members of selection boards convened under section 14101 of this title shall be appointed by the Secretary of the military department concerned in accordance with this section. Promotion boards and special selection boards shall consist of five or more officers. Continuation boards shall consist of three or more officers. All of the officers of any such selection board shall be of the same armed force as the officers under consideration by the board. “(b) Composition.— At least one-half of the members of such a selection board shall be reserve officers, to include at least one reserve officer from each reserve component from which officers are to be considered by the board. Each member of a selection board must hold a permanent grade higher than the grade of the officers under consideration by the board, and no member of a board may hold a grade below major or lieutenant commander. “(c) Representation of Competitive Categories.— (1) Except as provided in paragraph (2), a selection board shall include at least one officer from each competitive category of officers to be considered by the board. 108 STAT. 2925 “(2) A selection board need not include an officer from a competitive category to be considered by the board if there is no officer of that competitive category on the reserve active-status list or the active-duty list in a permanent grade higher than the grade of the officers to be considered by the board and otherwise eligible to serve on the board. However, in such a case, the Secretary of the military department concerned, in his discretion, may appoint as a member of the board a retired officer of that competitive category who is in the same armed force as the officers under consideration by the board who holds a higher grade than the grade of the officers under consideration. “(d) Prohibition of Service on Consecutive Promotion Boards.— No officer may be a member of two successive promotion boards convened under section 14101(a) of this title for the consideration of officers of the same competitive category and grade if the second of the two boards is to consider any officer who was considered and not recommended for promotion to the next higher grade by the first of the two boards. “§ 14103. Oath of members “Each member of a selection board convened under section 14101 of this title shall take an oath to perform the duties of a member of the board without prejudice or partiality, having in view both the special fitness of officers and the efficiency of the member’s armed force. “§ 14104. Confidentiality of board proceedings “Except as otherwise authorized or required by law, the proceedings of a selection board convened under section 14101 of this title may not be disclosed to any person not a member of the board. “§ 14105. Notice of convening of promotion board “(a) Required Notice.— At least 30 days before a promotion board is convened under section 14101(a) of this title to consider officers in a grade and competitive category for promotion to the next higher grade, the Secretary concerned shall either (1) notify in writing the officers eligible for consideration by the board for promotion regarding the convening of the board, or (2) issue a general written notice to the armed force concerned regarding the convening of the board. “(b) Content of Notice.— A notice under subsection (a) shall include the date on which the board is to convene and (except in the case of a vacancy promotion board) the name and date of rank of the junior officer, and of the senior officer, in the promotion zone as of the date of the notice. “§ 14106. Communication with board by officers under consideration “Subject to regulations prescribed by the Secretary of the military department concerned, an officer eligible for consideration by a promotion board convened under section 14101(a) of this title who is in the promotion zone or above the promotion zone, or who is to be considered by a vacancy promotion board, may send a written communication to the board calling attention to any matter concerning the officer which the officer considers important to the officer’s case. Any such communication shall be sent so 108 STAT. 2926as to arrive not later than the date on which the board convenes. The board shall give consideration to any timely communication under this section. “§ 14107. Information furnished by the Secretary concerned to promotion boards “(a) Integrity of the Promotion Selection Board Process.— (1) The Secretary of Defense shall prescribe regulations governing information furnished to selection boards convened under section 14101(a) of this title. Those regulations shall apply uniformly among the military departments. Any regulations prescribed by the Secretary of a military department to supplement those regulations may not take effect without the approval of the Secretary of Defense in writing. “(2) No information concerning a particular eligible officer may be furnished to a selection board except for the following: “(A) Information that is in the officer’s official military personnel file and that is provided to the selection board in accordance with the regulations prescribed by the Secretary of Defense pursuant to paragraph (1). “(B) Other information that is determined by the Secretary of the military department concerned, after review by that Secretary in accordance with standards and procedures set out in the regulations prescribed by the Secretary of Defense pursuant to paragraph (1), to be substantiated, relevant information that could reasonably and materially affect the deliberations of the promotion board. “(C) Subject to such limitations as may be prescribed in those regulations, information communicated to the board by the officer in accordance with this section, section 14106 of this title (including any comment on information referred to in subparagraph (A) regarding that officer), or other applicable law. “(D) A factual summary of the information described in subparagraphs (A), (B), and (C) that, in accordance with the regulations prescribed pursuant to paragraph (1) is prepared by administrative personnel for the purpose of facilitating the work of the selection board. “(3) Information provided to a promotion board in accordance with paragraph (2) shall be made available to all members of the board and shall be made a part of the record of the board. Communication of such information shall be in a written form or in the form of an audio or video recording. If a communication is in the form of an audio or video recording, a written transcription of the recording shall also be made a part of the record of the promotion board. “(4) Paragraphs (2) and (3) do not apply to the furnishing of appropriate administrative processing information to the promotion board by an administrative staff designated to assist the board, but only to the extent that oral communications are necessary to facilitate the work of the board. “(5) Information furnished to a promotion board that is described in subparagraph (B), (C), or (D) of paragraph (2) may not be furnished to a later promotion board unless— “(A) the information has been properly placed in the official military personnel file of the officer concerned; or 108 STAT. 2927 “(B) the information is provided to the later selection board in accordance with paragraph (2). “(6) (A) Before information described in paragraph (2)(B) regarding an eligible officer is furnished to a selection board, the Secretary of the military department concerned shall ensure— “(i) that such information is made available to such officer; and “(ii) that the officer is afforded a reasonable opportunity to submit comments on that information to the promotion board. “(B) If an officer cannot be given access to the information referred to in subparagraph (A) because of its classification status, the officer shall, to the maximum extent practicable, be furnished an appropriate summary of the information. “(b) Information To Be Furnished.— The Secretary of the military department concerned shall furnish to a promotion board convened under section 14101(a) of this title the following: “(1) In the case of a mandatory promotion board, the maximum number (as determined in accordance with section 14307 of this title) of officers in each competitive category under consideration that the board is authorized to recommend for promotion to the next higher grade. “(2) The name of each officer in each competitive category under consideration who is to be considered by the board for promotion. “(3) The pertinent records (as determined by the Secretary) of each officer whose name is furnished to the board. “(4) Information or guidelines relating to the needs of the armed force concerned for officers having particular skills, including (except in the case of a vacancy promotion board) guidelines or information relating to either a minimum number or a maximum number of officers with particular skills within a competitive category. “(5) Such other information or guidelines as the Secretary concerned may determine to be necessary to enable the board to perform its functions. “(c) Limitation on Modifying Furnished Information.— Information or guidelines furnished to a selection board under subsection (a) may not be modified, withdrawn, or supplemented after the board submits its report to the Secretary of the military department concerned pursuant to section 14109(a) of this title. However, in the case of a report returned to a board pursuant to section 14110(a) of this title for further proceedings because of a determination by the Secretary of the military department concerned that the board acted contrary to law, regulation, or guidelines, the Secretary may modify, withdraw, or supplement such information or guidelines as part of a written explanation to the board as provided in that section. “(d) Officers in Health-Professions Competitive Categories.— The Secretary of each military department, under uniform regulations prescribed by the Secretary of Defense, shall include in guidelines furnished to a promotion board convened under section 14101(a) of this title that is considering officers in a health-professions competitive category for promotion to a grade below colonel or, in the case of officers of the Naval Reserve, captain, a direction that the board give consideration to an officer’s clinical proficiency and skill as a health professional to at least 108 STAT. 2928as great an extent as the board gives to the officer’s administrative and management skills. “§ 14108. Recommendations by promotion boards “(a) Recommendation of Best Qualified Officers.— A promotion board convened under section 14101(a) of this title shall recommend for promotion to the next higher grade those officers considered by the board whom the board considers best qualified for promotion within each competitive category considered by the board or, in the case of a vacancy promotion board, among those officers considered to fill a vacancy. In determining those officers who are best qualified for promotion, the board shall give due consideration to the needs of the armed force concerned for officers with particular skills (as noted in the guidelines or information furnished the board under section 14107 of this title). “(b) Majority Required.— A promotion board convened under section 14101(a) of this title may not recommend an officer for promotion unless— “(1) the officer receives the recommendation of a majority of the members of the board; and “(2) a majority of the members of the board finds that the officer is fully qualified for promotion. “(c) Board Recommendation Required for Promotion.— Except as otherwise provided by law, an officer on the reserve active-status list may not be promoted to a higher grade under chapter 1405 of this title unless the officer is considered and recommended for promotion to that grade by a promotion board convened under section 14101(a) of this title (or by a special selection board convened under section 14502 of this title). “(d) Disclosure of Board Recommendations.— The recommendations of a promotion board may be disclosed only in accordance with regulations prescribed by the Secretary of Defense. Those recommendations may not be disclosed to a person not a member of the board (or a member of the administrative staff designated by the Secretary concerned to assist the board) until the written report of the recommendations of the board, required by section 14109 of this title, is signed by each member of the board. “(e) Prohibition of Coercion and Unauthorized Influence of Actions of Board Members.— The Secretary convening a promotion board under section 14101(a) of this title, and an officer or other official exercising authority over any member of a selection board, may not— “(1) censure, reprimand, or admonish the selection board or any member of the board with respect to the recommendations of the board or the exercise of any lawful function within the authorized discretion of the board; or “(2) attempt to coerce or, by any unauthorized means, influence any action of a promotion board or any member of a promotion board in the formulation of the board’s recommendations. “§ 14109. Reports of promotion boards: in general “(a) Report of Officers Recommended for Promotion.— Each promotion board convened under section 14101(a) of this title shall submit to the Secretary of the military department concerned a report in writing containing a list of the names of the 108 STAT. 2929officers recommended by the board for promotion. The report shall be signed by each member of the board. “(b) Certification.— Each report under subsection (a) shall include a certification— “(1) that the board has carefully considered the record of each officer whose name was furnished to the board; and “(2) that, in the case of a promotion board convened under section 14101(a) of this title, in the opinion of a majority of the members of the board, the officers recommended for promotion by the board are best qualified for promotion to meet the needs of the armed force concerned (as noted in the guidelines or information furnished the board under section 14107 of this title) among those officers whose names were furnished to the selection board. “(c) Show-Cause Recommendations.— (1) A promotion board convened under section 14101(a) of this title shall include in its report to the Secretary concerned the name of any reserve officer before it for consideration for promotion whose record, in the opinion of a majority of the members of the board, indicates that the officer should be required to show cause for retention in an active status. “(2) If such a report names an officer as having a record which indicates that the officer should be required to show cause for retention, the Secretary concerned may provide for the review of the record of that officer as provided under regulations prescribed under section 14902 of this title. “§14110. Reports of promotion boards: review by Secretary “(a) Review of Report.— Upon receipt of the report of a promotion board submitted under section 14109(a) of this title, the Secretary of the military department concerned shall review the report to determine whether the board has acted contrary to law or regulation or to guidelines furnished the board under section 14107(a) of this title. Following that review, unless the Secretary concerned makes a determination as described in subsection (b), the Secretary shall submit the report as required by section 14111 of this title. “(b) Return of Report for Further Proceedings.— If, on the basis of a review of the report under subsection (a), the Secretary of the military department concerned determines that the board acted contrary to law or regulation or to guidelines furnished the board under section 14107(a) of this title, the Secretary shall return the report, together with a written explanation of the basis for such determination, to the board for further proceedings. Upon receipt of a report returned by the Secretary concerned under this subsection, the selection board (or a subsequent selection board convened under section 14101(a) of this title for the same grade and competitive category) shall conduct such proceedings as may be necessary in order to revise the report to be consistent with law, regulation, and such guidelines and shall resubmit the report, as revised, to the Secretary in accordance with section 14109 of this title. “§14111. Reports of selection boards: transmittal to President “(a) Transmittal to President.— The Secretary concerned, after final review of the report of a selection board under section 108 STAT. 293014110 of this title, shall submit the report with the Secretary’s recommendations, to the Secretary of Defense for transmittal by the Secretary to the President for approval or disapproval. If the authority of the President to approve or disapprove the report of a promotion board is delegated to the Secretary of Defense, that authority may not be redelegated except to an official in the Office of the Secretary of Defense. “(b) Removal of Name From Board Report.— The name of an officer recommended for promotion by a selection board may be removed from the report of the selection board only by the President. “(c) Recommendations for Removal of Selected Officers From Report.— If the Secretary of a military department or the Secretary of Defense makes a recommendation under this section that the name of an officer be removed from the report of a promotion board and the recommendation is accompanied by information that was not presented to that promotion board, that information shall be made available to that officer. The officer shall then be afforded a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation. If an eligible officer cannot be given access to such information because of its classification status, the officer shall, to the maximum extent practicable, be provided with an appropriate summary of the information. “§ 14112. Dissemination of names of officers selected “Upon approval by the President of the report of a promotion board, the names of the officers recommended for promotion by the promotion board (other than any name removed by the President) may be disseminated to the armed force concerned. If those names have not been sooner disseminated, those names (other than the name of any officer whose promotion the Senate failed to confirm) shall be promptly disseminated to the armed force concerned upon confirmation by the Senate. “CHAPTER 1405— PROMOTIONS “Sec. “14301. Eligibility for consideration for promotion: general rules. “14302. Promotion zones. “14303. Eligibility for consideration for promotion: minimum years of service in grade. “14304. Eligibility for consideration for promotion: maximum years of service in grade. “14305. Establishment of promotion zones: mandatory consideration for promotion. “14306. Establishment of promotion zones: Naval Reserve and Marine Corps Reserve running mate system. “14307. Numbers of officers to be recommended for promotion. “14308. Promotions: how made. “14309. Acceptance of promotion: oath of office. “14310. Removal of officers from a list of officers recommended for promotion. “14311. Delay of promotion: involuntary. “14312. Delay of promotion: voluntary. “14313. Authority to vacate promotions to grade of brigadier general or rear admiral (lower half). “14314. Army and Air Force commissioned officers: generals ceasing to occupy positions commensurate with grade; state adjutants general. “14315. Position vacancy promotions: Army and Air Force officers. “14316. Army National Guard and Air National Guard: appointment to and Federal recognition in a higher reserve grade after selection for promotion. “14317. Officers in transition to and from the active-status list or active-duty list. 108 STAT. 2931 “14301. Eligibility for consideration for promotion: general rules “(a) One-Year Rule.— An officer is eligible under this chapter for consideration for promotion by a promotion board convened under section 14101(a) of this title only if— “(1) the officer is on the reserve active-status list of the Army, Navy, Air Force, or Marine Corps; and “(2) during the one-year period ending on the date of the convening of the promotion board the officer has continuously performed service on either the reserve active-status list or the active-duty list (or on a combination of both lists). “(b) Requirement for Consideration of All Officers In and Above the Zone.— Whenever a promotion board (other than a vacancy promotion board) is convened under section 14101(a) of this title for consideration of officers in a competitive category who are eligible under this chapter for consideration for promotion to the next higher grade, each officer in the promotion zone, and each officer above the promotion zone, for that grade and competitive category shall be considered for promotion. “(c) Previously Selected Officers Not Eligible To Be Considered.— A promotion board convened under section 14101(a) of this title may not consider for promotion to the next higher grade— “(1) an officer whose name is on a promotion list for that grade as a result of recommendation for promotion to that grade by an earlier selection board convened under that section or section 14502 of this title or under chapter 36 of this title; “(2) an officer who has been approved for Federal recognition by a board convened under section 307 of title 32 and nominated by the President for promotion to the next higher grade as a reserve of the Army or of the Air Force as the case may be; or “(3) an officer who has been nominated by the President for promotion to the next higher grade under any other provision of law. “(d) Officers Below the Zone.— The Secretary of the military department concerned may, by regulation, prescribe procedures to limit the officers to be considered by a selection board from below the promotion zone to those officers who are determined to be exceptionally well qualified for promotion. The regulations shall include criteria for determining which officers below the promotion zone are exceptionally well qualified for promotion. “(e) Reserve Officers of the Army; Consideration for Brigadier General and Major General.— In the case of officers of the Army, if the Secretary of the Army determines that vacancies are authorized or anticipated in the reserve grades of major general or brigadier general for officers who are on the reserve active-status fist and who are not assigned to units organized to serve as a unit and the Secretary convenes a mandatory promotion board under section 14101(a) of this title to consider officers for promotion to fill such vacancies, the Secretary may limit the officers to be considered by that board to those determined to be exceptionally well qualified for promotion under such criteria and procedures as the Secretary may by regulation prescribe. “(f) Certain Reserve Officers of the Air Force.— A reserve officer of the Air Force who (1) is in the Air National Guard of the United States and holds the grade of lieutenant colonel, 108 STAT. 2932colonel, or brigadier general, or (2) is in the Air Force Reserve and holds the grade of colonel or brigadier general, is not eligible for consideration for promotion by a mandatory promotion board convened under section 14101(a) of this title. “(g) Nonconsideration of Officers Scheduled for Removal From Reserve Active-Status List.— The Secretary of the military department concerned may, by regulation, provide for the exclusion from consideration for promotion by a promotion board of any officer otherwise eligible to be considered by the board who has an established date for removal from the reserve active-status list that is not more than 90 days after the date on which the selection board for which the officer would otherwise be eligible is to be convened. “§ 14302. Promotion zones “(a) Promotion Zones Generally.— For purposes of this chapter, a promotion zone is an eligibility category for the consideration of officers by a mandatory promotion board. A promotion zone consists of those officers on the reserve active-status list who are in the same grade and competitive category and who meet the requirements of both paragraphs (1) and (2) or the requirements of paragraph (3), as follows: “(1) (A) In the case of officers in grades below colonel, for reserve officers of the Army, Air Force, and Marine Corps, or captain, for officers of the Naval Reserve, those who have neither (i) failed of selection for promotion to the next higher grade, nor (ii) been removed from a list of officers recommended for promotion to that grade. “(B) In the case of officers in the grade of colonel or brigadier general, for reserve officers of the Army and Marine Corps, or in the grade of captain or rear admiral (lower half), for reserve officers of the Navy, those who have neither (i) been recommended for promotion to the next higher grade when considered in the promotion zone, nor (ii) been removed from a list of officers recommended for promotion to that grade. “(2) Those officers who are senior to the officer designated by the Secretary of the military department concerned to be the junior officer in the promotion zone eligible for consideration for promotion to the next higher grade and the officer so designated. “(3) Those officers who— “(A) have been selected from below the zone for promotion to the next higher grade or by a vacancy promotion board, but whose names were removed from the list of officers recommended for promotion to that next higher grade resulting from that selection; “(B) have not failed of selection for promotion to that next higher grade; and “(C) are senior to the officer designated by the Secretary of the military department concerned to be the junior officer in the promotion zone eligible for consideration for promotion to that next higher grade and the officer so designated. “(b) Officers Above the Zone.— Officers on the reserve active-status list are considered to be above the promotion zone for a grade and competitive category if they— 108 STAT. 2933 “(1) are eligible for consideration for promotion to the next higher grade; “(2) are in the same grade as those officers in the promotion zone for that competitive category; and “(3) are senior to the senior officer in the promotion zone for that competitive category. “(c) Officers Below the Zone.— Officers on the reserve active-status list are considered to be below the promotion zone for a grade and competitive category if they— “(1) are eligible for consideration for promotion to the next higher grade; “(2) are in the same grade as those officers in the promotion zone for that competitive category; and “(3) are junior to the junior officer in the promotion zone for that competitive category. “§14303. Eligibility for consideration for promotion: minimum years of service in grade “(a) Officers in Pay Grades 0–1 and 0–2.— An officer who is on the reserve active-status list of the Army, Navy, Air Force, or Marine Corps and holds a permanent appointment in the grade of second lieutenant or first lieutenant as a reserve officer of the Army, Air Force, or Marine Corps, or in the grade of ensign or lieutenant (junior grade) as a reserve officer of the Navy, may not be promoted to the next higher grade, or granted Federal recognition in that grade, until the officer has completed the following years of service in grade: “(1) Eighteen months, in the case of an officer holding a permanent appointment in the grade of second lieutenant or ensign. “(2) Two years, in the case of an officer holding a permanent appointment in the grade of first lieutenant or lieutenant (junior grade). “(b) Officers in Pay Grades 0–3 and Above.— Subject to subsection (d), an officer who is on the reserve active-status list of the Army, Air Force, or Marine Corps and holds a permanent appointment in a grade above first lieutenant, or who is on the reserve active-status list of the Navy in a grade above lieutenant (junior grade), may not be considered for selection for promotion to the next higher wade, or examined for Federal recognition in the next higher grade, until the officer has completed the following years of service in grade: “(1) Three years, in the case of an officer of the Anny, Air Force, or Marine Corps holding a permanent appointment in the grade of captain, major, or lieutenant colonel or in the case of a reserve officer of the Navy holding a permanent appointment in the grade of lieutenant, lieutenant commander, or commander. “(2) One year, in the case of an officer of the Army, Air Force, or Marine Corps holding a permanent appointment in the grade of colonel or brigadier general or in the case of a reserve officer of the Navy holding a permanent appointment in the grade of captain or rear admiral (lower half). This subsection does not apply to an adjutant general or assistant adjutant general of a State or to an appointment in a higher grade which is based upon a specific provision of law. 108 STAT. 2934 “(c) Authority To Lengthen Minimum Period in Grade.— The Secretary concerned may prescribe a period of service in grade for eligibility for promotion, in the case of officers to whom subsection (a) applies, or for eligibility for consideration for promotion, in the case of officers to whom subsection (b) applies, that is longer than the applicable period specified in that subsection. “(d) Waivers To Ensure Two Below-the-Zone Considerations.— Subject to section 14307(b) of this title, the Secretary of the military department concerned may waive subsection (b) to the extent necessary to ensure that officers described in paragraph (1) of that subsection have at least two opportunities for consideration for promotion to the next higher grade as officers below the promotion zone. “§ 14304. Eligibility for consideration for promotion: maximum years of service in grade “(a) Consideration for Promotion Within Specified Times.— (1) Officers described in paragraph (3) shall be placed in the promotion zone for that officer’s grade and competitive category, and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the years of service in grade specified in the following table so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. “Current Grade Maximum years of service in grade “First lieutenant or Lieutenant (junior grade) 5 years “Captain or Navy Lieutenant 7 years “Major or Lieutenant commander 7 years “(2) Paragraph (1) is subject to subsections (a), (b), and (c) of section 14301 of this title and applies without regard to vacancies. “(3) Paragraph (1) applies to an officer who is on the reserve active-status list of the Army, Navy, Air Force, or Marine Corps and who holds a permanent appointment in the grade of first lieutenant, captain, or major as a reserve of the Army, Air Force, or Marine Corps, or to an officer on the reserve active-status list of the Navy in the grade of lieutenant (junior grade), lieutenant, or lieutenant commander as a reserve of the Navy, and who, while holding that appointment, has not been considered by a selection board convened under section 14101(a) or 14502 of this title for promotion to the next higher grade. “(b) Promotion Date.— An officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade specified in subsection (a). The preceding sentence is subject to the limitations of section 12011 of this title. “(c) Waiver Authority for Navy and Marine Corps Running Mate System.— If the Secretary of the Navy establishes promotion zones for officers on the reserve active-status list of the Navy or the Marine Corps Reserve in accordance with a running mate 108 STAT. 2935system under section 14306 of this title, the Secretary may waive the requirements of subsection (a) to the extent the Secretary considers necessary in any case in which the years of service for promotion, or for consideration for promotion, within those zones will exceed the maximum years of service in grade specified in subsection (a). “§ 14305. Establishment of promotion zones: mandatory consideration for promotion “(a) Establishment of Zone.— Before convening a mandatory promotion board under section 14101(a) of this title, the Secretary of the military department concerned shall establish a promotion zone for officers serving in each grade and competitive category to be considered by the board. “(b) Number in the Zone.— The Secretary concerned shall determine the number of officers in the promotion zone for officers serving in any grade and competitive category from among officers who are eligible for promotion in that grade and competitive category under the provisions of sections 14303 and 14304 of this title and who are otherwise eligible for promotion. “(c) Factors in Determining Number in the Zone.— The Secretary’s determination under subsection (b) shall be made on the basis of an estimate of the following: “(1) The number of officers needed in that competitive category in the next higher grade in each of the next five years. “(2) In the case of a promotion zone for officers to be promoted to a grade to which the maximum years of in grade criteria established in section 14304 of this title apply, the number of officers in that competitive category who are required to be considered for selection for promotion to the next higher grade under that section. “(3) The number of officers that should be placed in the promotion zone in each of the next five years to provide to officers in those years relatively similar opportunities for promotion. “§ 14306. Establishment of promotion zones: Naval Reserve and Marine Corps Reserve running mate system “(a) Authority of Secretary of the Navy.— The Secretary of the Navy may by regulation implement section 14305 of this title by requiring that the promotion zone for consideration of officers on the reserve active-status list of the Navy or the Marine Corps for promotion to the next higher grade be determined in accordance with a running mate system as provided in subsection (b). “(b) Assignment of Running Mates.— An officer to whom a running mate system applies shall be assigned as a running mate an officer of the same grade on the active-duty list of the same armed force. The officer on the reserve active-status list is in the promotion zone and is eligible for consideration for promotion to the next higher grade by a selection board convened under section 14101(a) of this title when that officer’s running mate is in or above the promotion zone established for that officer’s grade under chapter 36 of this title. “(c) Consideration of Officers Below the Zone Under a Running Mate System.— If the Secretary of the Navy authorizes 108 STAT. 2936the selection of officers for promotion from below the promotion zone in accordance with section 14307 of this title, the number of officers to be considered from below the zone may be established through the application of the running mate system or otherwise as the Secretary determines to be appropriate to meet the needs of the Navy or Marine Corps. “§14307. Number of officers to be recommended for promotion “(a) Determination of Maximum Number.— Before convening a promotion board under section 14101(a) of this title for a grade and competitive category (other than a vacancy promotion board), the Secretary of the military department concerned, under regulations prescribed by the Secretary of Defense, shall determine the maximum number of officers in that grade and competitive category that the board may recommend for promotion. The Secretary shall make the determination under the preceding sentence of the maximum number that may be recommended with a view to having on the reserve active-status list a sufficient number of officers in each grade and competitive category to meet the needs of the armed force concerned for officers on that list. In order to make that determination, the Secretary shall determine (1) the number of positions needed to accomplish mission objectives which require officers of such competitive category in the grade to which the board will recommend officers for promotion, (2) the estimated number of officers needed to fill vacancies in such positions during the period in which it is anticipated that officers selected for promotion will be promoted, (3) the number of officers authorized by the Secretary of the military department concerned to serve on the reserve active-status list in the grade and competitive category under consideration, and (4) any statutory limitation on the number of officers in any grade or category (or combination thereof) authorized to be on the reserve active-status list. “(b) Below-the-Zone Selections.— (1) The Secretary of the military department concerned may, when the needs of the armed force concerned require, authorize the consideration of officers in the grade of captain, major, or lieutenant colonel on the reserve active-status list of the Army or Air Force, in a grade above first lieutenant on the reserve active-status list of the Marine Corps, or in a grade above lieutenant (junior grade) on the reserve active-status list of the Navy, for promotion to the next higher grade from below the promotion zone. “(2) When selection from below the promotion zone is authorized, the Secretary shall establish the number of officers that may be recommended for promotion from below the promotion zone in each competitive category to be considered. That number may not exceed the number equal to 10 percent of the maximum number of officers that the board is authorized to recommend for promotion in such competitive category, except that the Secretary of Defense may authorize a greater number, not to exceed 15 percent of the total number of officers that the board is authorized to recommend for promotion, if the Secretary of Defense determines that the needs of the armed force concerned so require. If the maximum number determined under this paragraph is less than one, the board may recommend one officer for promotion from below the promotion zone. 108 STAT. 2937 “(3) The number of officers recommended for promotion from below the promotion zone does not increase the maximum number of officers that the board is authorized to recommend for promotion under subsection (a). “§ 14308. Promotions: how made “(a) Promotion List.— When the report of a selection board convened under section 14101(a) or 14502 of this title is approved by the President, the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of seniority of those officers on the reserve active-status list. “(b) Promotion; How Made; Order.— (1) Officers on a promotion list for a competitive category shall be promoted in the manner specified in section 12203 of this title. “(2) Officers on a promotion list for a competitive category shall be promoted to the next higher grade in accordance with regulations prescribed by the Secretary of the military department concerned. Except as provided in section 14311, 14312, or 14502(e) of this title or in subsection (d) or (e), promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. “(3) Officers to be promoted to the grade of first lieutenant or lieutenant (junior grade) shall be promoted in accordance with regulations prescribed by the Secretary of the military department concerned. “(c) Date of Rank.— (1) The date of rank of an officer appointed to a higher grade under this section is determined under section 741(d)(2) of this title. “(2) Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion. “(d) Officers With Running Mates.— An officer to whom a running mate system applies under section 14306 of this title and who is selected for promotion is eligible for promotion to the grade for which selected when the officer who is that officer’s running mate becomes eligible for promotion under chapter 36 of this title. The effective date of the promotion of that officer shall be the same as that of the officer’s running mate in the grade to which the running mate is promoted. “(e) Army Reserve and Air Force Reserve Promotions To Fill Vacancies.— Subject to this section and to section 14311(e) of this title, and under regulations prescribed by the Secretary of the military department concerned— “(1) an officer in the Army Reserve or the Air Force Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board convened under section 14101(a) of this title or a board convened under section 14502 or chapter 36 of this title may be promoted at any time to fill a vacancy in a position to which the officer is assigned; and “(2) an officer in the Army Reserve or the Air Force Reserve who is on a promotion list as a result of selection for promotion by a vacancy promotion board convened under section 14101(a) 108 STAT. 2938of this title may be promoted at any time to fill the vacancy for which the officer was selected. “(f) Effective Date of Promotion After Federal Recognition.— The effective date of a promotion of a reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the Army National Guard or the Air National Guard under section 307 or 310 of title 32 shall be the date on which such Federal recognition in that grade is so extended. “(g) Army and Air Force General Officer Promotions.— A reserve officer of the Army who is on a promotion list for promotion to the grade of brigadier general or major general as a result of selection by a vacancy promotion board may be promoted to that grade only to fill a vacancy in that grade in a unit of the Army Reserve that is organized to serve as a unit and that has attained the strength prescribed by the Secretary of the Army. A reserve officer of the Air Force who is on a promotion list for promotion to the grade of brigadier general or major general as a result of selection by a vacancy promotion board may be promoted to that grade only to fill a vacancy in the Air Force Reserve in that grade. “§ 14309. Acceptance of promotion; oath of office “(a) Acceptance.— An officer who is appointed to a higher grade under this chapter shall be considered to have accepted the appointment on the date on which the appointment is made unless the officer expressly declines the appointment or is granted a delay of promotion under section 14312 of this title. “(b) Oath.— An officer who has served continuously since taking the oath of office prescribed in section 3331 of title 5 is not required to take a new oath upon appointment to a higher grade under this chapter. “§14310. Removal of officers from a list of officers recommended for promotion “(a) Removal by President.— The President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted. “(b) Removal for Withholding of Senate Advice and Consent.— If the Senate does not give its advice and consent to the appointment to the next higher grade of an officer whose name is on a list of officers approved by the President for promotion (except in the case of promotions to a reserve grade to which appointments may be made by the President alone), the name of that officer shall be removed from the list. “(c) Continued Eligibility for Promotion.— An officer whose name is removed from a list under subsection (a) or (b) continues to be eligible for consideration for promotion. If that officer is recommended for promotion by the next selection board convened for that officer’s grade and competitive category and the officer is promoted, the Secretary of the military department concerned may, upon the promotion, grant the officer the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the reserve active-status list, as the officer would have had if the officer’s name had not been removed from the list. 108 STAT. 2939 “§ 14311. Delay of promotion: involuntary “(a) Delay During Investigations and Proceedings.— (1) Under regulations prescribed by the Secretary of the military department concerned, the appointment of an officer to a higher grade may be delayed if any of the following applies before the date on which the appointment would otherwise be made: “(A) Sworn charges against the officer have been received by an officer exercising general court-martial jurisdiction over the officer and the charges have not been disposed of. “(B) An investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer. “(C) A board of officers has been convened under section 14903 of this title to review the record of the officer. “(D) A criminal proceeding in a Federal or State court of competent jurisdiction is pending against the officer. “(2) If disciplinary action is not taken against the officer, if the charges against the officer are withdrawn or dismissed, if the officer is not separated by the Secretary of the military department concerned as the result of having been required to show cause for retention, or if the officer is acquitted of the charges, as the case may be, then (unless action to delay the officer’s appointment to the higher grade has been taken under subsection (b)) the officer shall be retained on the promotion list, list of officers found qualified for Federal recognition, or list of officers nominated by the President to the Senate for appointment in a higher reserve grade and shall, upon promotion to the next higher grade, have the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the reserve active-status list as the officer would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. If the Secretary makes such a determination, the Secretary may adjust such date of rank, effective date of pay and allowances, and position on the reserve active-status list as the Secretary considers appropriate under the circumstances. “(b) Delay for Lack of Qualifications.— Under regulations prescribed by the Secretary of the military department concerned, the appointment of an officer to a higher grade may also be delayed if there is cause to believe that the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade to which selected. If the Secretary concerned later determines that the officer is qualified for promotion to the higher grade, the officer shall be retained on the promotion list, the list of officers found qualified for Federal recognition, or list of officers nominated by the President to the Senate for appointment in a higher reserve grade, and shall, upon promotion to that grade, have the same date of rank, the same effective date for pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. If the Secretary makes such a determination, the Secretary may adjust such date of rank, effective date of pay and allowances, and position on the reserve active-status list as the Secretary considers appropriate under the circumstances. 108 STAT. 2940 “(c) Notice to Officer.— (1) The appointment of an officer to a higher grade may not be. delayed under subsection (a) or (b) unless the officer is given written notice of the grounds for the delay. The preceding sentence does not apply if it is impracticable to give the officer written notice before the date on which the appointment to the higher grade would otherwise take effect, but in such a case the written notice shall be given as soon as practicable. “(2) An officer whose promotion is delayed under subsection (a) or (b) shall be given an opportunity to make a written statement to the Secretary of the military department concerned in response to the action taken. The Secretary shall give consideration to any such statement. “(d) Maximum Length of Delay in Promotion.— The appointment of an officer to a higher grade may not be delayed under subsection (a) or (b) for more than six months after the date on which the officer would otherwise have been promoted unless the Secretary concerned specifies a further period of delay. An officer’s appointment may not be delayed more than 90 days after final action has been taken in any criminal case against the officer in a Federal or State court of competent jurisdiction or more than 90 days after final action has been taken in any court-martial case against the officer. Except for court action, a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted. “(e) Delay Because of Limitations on Officer Strength in Grade or Duties to Which Assigned.— (1) Under regulations prescribed by the Secretary of Defense, the promotion of a reserve officer on the reserve active-status list who is serving on active duty, or who is on full-time National Guard duty for administration of the reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply shall be delayed if necessary to ensure compliance with those strength limitations. The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance. “(2) The promotion of an officer described in paragraph (1) shall also be delayed while the officer is on duty described in that paragraph unless the Secretary of the military department concerned, under regulations prescribed by the Secretary of Defense, determines that the duty assignment of the officer requires a higher grade than the grade currently held by the officer. “(3) The date of rank and position on the reserve active-status list of a reserve officer whose promotion to or Federal recognition in the next higher grade was delayed under paragraph (1) or (2) solely as the result of the limitations imposed under the regulations prescribed by the Secretary of Defense or contained in section 12011 of this title shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed. “(4) If an officer whose promotion is delayed under paragraph (1) or (2) completes the period of active duty or full-time National Guard duty that the officer is required by law or regulation to perform as a member of a reserve component, the officer may request release from active duty or full-time National Guard duty. If the request is granted, the officer’s promotion shall be effective upon the officer’s release from such duty. The date of rank and position on the reserve active-status list of the officer shall be 108 STAT. 2941the date the officer would have been promoted to or recognized in the higher grade had the limitations imposed under regulations prescribed by the Secretary of Defense contained in section 12011 of this title not existed. If an officer whose promotion is delayed under paragraph (1) or (2) has not completed the period of active duty or full-time National Guard duty that the officer is required by law or regulation to perform as a member of a reserve component, the officer may be retained on active duty or on full-time National Guard duty in the grade in which the officer was serving before the officer’s being found qualified for Federal recognition or the officer’s selection for the promotion until the officer completes that required period of duty. “§ 14312. Delay of promotion: voluntary “(a) Authority for Voluntary Delays.— (1) The Secretary of the military department concerned may, by regulation, permit delays of a promotion of an officer who is recommended for promotion by a mandatory selection board convened under section 14101(a) or a special selection board convened under section 14502 of this title at the request of the officer concerned. Such delays, in the case of any promotion, may extend for any period not to exceed three years from the date on which the officer would otherwise be promoted. “(2) Regulations under this section shall provide that— “(A) a request for such a delay of promotion must be submitted by the officer concerned before the delay may be approved; and “(B) denial of such a request shall not be considered to be a failure of selection for promotion unless the officer declines to accept a promotion under circumstances set forth in subsection (c). “(b) Effect of Approval of Request.— If a request for delay of a promotion under subsection (a) is approved, the officer’s name shall remain on the promotion list during the authorized period of delay (unless removed under any other provision of law). Upon the end of the period of the authorized delay, or at any time during such period, the officer may accept the promotion, which shall be effective on the date of acceptance. Such an acceptance of a promotion shall be made in accordance with regulations prescribed under this section. “(c) Effect of Declining a Promotion.— An officer’s name shall be removed from the promotion list and, if the officer is serving in a grade below colonel or, in the case of the Navy, captain, the officer shall be considered to have failed of selection for promotion if any of the following applies: “(1) The Secretary concerned has not authorized voluntary delays of promotion under subsection (a) to the grade concerned and the officer declines to accept an appointment to a higher grade. “(2) The Secretary concerned has authorized voluntary delays of promotion under subsection (a), but has denied the request of the officer for a delay of promotion and the officer then declines to accept an appointment to a higher grade. “(3) The Secretary concerned has approved the request of an officer for a delay of promotion and, upon the end of the period of delay authorized in accordance with regulations 108 STAT. 2942prescribed under subsection (a), the officer then declines to accept an appointment to a higher grade. “§ 14313. Authority to vacate promotions to grade of brigadier general or rear admiral (lower half) “(a) Authority.— The President may vacate the appointment of a reserve officer to the grade of brigadier general or rear admiral (lower half) if the period of time during which the officer has served in that grade after promotion to that grade is less than 18 months. “(b) Effect of Promotion Being Vacated.— Except as provided in subsection (c), an officer whose promotion to the grade of brigadier general is vacated under this section holds the grade of colonel as a reserve of the armed force of which the officer is a member. An officer whose promotion to the grade of rear admiral (lower half) is vacated under this section holds the grade of captain in the Naval Reserve. Upon assuming the lower grade, the officer shall have the same position on the reserve active-status list as the officer would have had if the officer had not served in the higher grade. “(c) Special Rule for Officers Serving as Adjutant General.— In the case of an officer serving as an adjutant general or assistant adjutant general whose promotion to the grade of brigadier general is vacated under this section, the officer then holds the reserve grade held by that officer immediately before the officer’s appointment as adjutant general or assistant adjutant general. “§14314. Army and Air Force commissioned officers: generals ceasing to occupy positions commensurate with grade; State adjutants general “(a) General Officers.— Within 30 days after a reserve officer of the Army or the Air Force on the reserve active-status list in a general officer grade ceases to occupy a position commensurate with that grade (or commensurate with a higher grade), the Secretary concerned shall transfer or discharge the officer in accordance with whichever of the following the officer elects: “(1) Transfer the officer in grade to the Retired Reserve, if the officer is qualified and applies for the transfer. “(2) Transfer the officer in grade to the inactive status list of the Standby Reserve, if the officer is qualified. “(3) Discharge the officer from the officer’s reserve appointment and, if the officer is qualified and applies therefor, appoint the officer in the reserve grade held by the officer as a reserve officer before the officer’s appointment in a general officer grade. “(4) Discharge the officer from the officer’s reserve appointment. “(b) Adjutants General.— If a reserve officer who is federally recognized in the Army National Guard or the Air National Guard solely because of the officer’s appointment as adjutant general or assistant adjutant general of a State ceases to occupy that position, the Secretary concerned, not later than 30 days after the date on which the officer ceases to occupy that position, shall— “(1) withdraw that officer’s Federal recognition; and “(2) require that the officer— 108 STAT. 2943 “(A) be transferred in grade to the Retired Reserve, if the officer is qualified and applies for the transfer; “(B) be discharged from the officer’s reserve appointment and appointed in the reserve grade held by the officer as a reserve officer of the Air Force immediately before the appointment of that officer as adjutant general or assistant adjutant general, if the officer is qualified and applies for that appointment; or “(C) be discharged from the officer’s reserve appointment. “(c) Credit for Service in Grade.— An officer who is appointed under subsection (a)(3) or (b)(2)(B) shall be credited with an amount of service in the grade in which appointed that is equal to the amount of prior service in an active status in that grade and in any higher grade. “§ 14315. Position vacancy promotions: Army and Air Force officers “(a) Officers Eligible for Consideration For Vacancy Promotions Below Brigadier General.— A reserve officer of the Army who is in the Army Reserve, or a Reserve officer of the Air Force who is in the Air Force Reserve, who is on the reserve active-status list in the grade of first lieutenant, captain, major, or lieutenant colonel is eligible for consideration for promotion to the next higher grade under this section if each of the following applies: “(1) The officer is occupying or, as determined by the Secretary concerned, is available to occupy a position in the same competitive category as the officer and for which a grade higher than the one held by that officer is authorized. “(2) The officer is fully qualified to meet all requirements for the position as established by the Secretary of the military department concerned. “(3) The officer has held the officer’s present grade for the minimum period of service prescribed in section 14303 of this title for eligibility for consideration for promotion to the higher grade. “(b) Consideration for Vacancy Promotion to Brigadier General or Major General.— (1) A reserve officer of the Army who is in the Army Reserve and on the reserve active-status list in the grade of colonel or brigadier general may be considered for promotion to the next higher grade under this section if the officer (A) is assigned to the duties of a general officer of the next higher reserve grade in a unit of the Army Reserve organized to serve as a unit, (B) has held the officer’s present grade for the minimum period of service prescribed in section 14303 of this title for eligibility for consideration for promotion to the higher grade, and (C) meets the standards for consideration prescribed by the Secretary of the Army. “(2) A reserve officer of the Air Force who is in the Air Force Reserve and on the reserve active-status list in the grade of colonel or brigadier general may be considered for promotion to the next higher grade under this section if the officer (A) is assigned to the duties of a general officer of the next higher reserve grade, and (B) meets the standards for consideration prescribed by the Secretary of the Air Force. 108 STAT. 2944 “(c) Vacancy Promotion Boards.— Consideration for promotion under this section shall be by a vacancy promotion board convened under section 14101(a) of this title. “(d) Effect of Nonselection.— An officer who is considered for promotion under this section and is not selected shall not be considered to have failed of selection for promotion. “(e) Special Rule for Officers Failed of Selection.— A reserve officer of the Army or the Air Force who is considered as failed of selection for promotion under section 14501 of this title to a grade may be considered for promotion under this section or, if selected, promoted to that grade only if the Secretary of the military department concerned finds that the officer is the only qualified officer available to fill the vacancy. The Secretary concerned may not delegate the authority under the preceding sentence. “§ 14316. Army National Guard and Air National Guard: appointment to and Federal recognition in a higher reserve grade after selection for promotion “(a) Opportunity for Promotion To Fill a Vacancy in the Guard.— If an officer of the Army National Guard of the United States or the Air National Guard of the United States is recommended by a mandatory selection board convened under section 14101(a) or a special selection board convened under section 14502 of this title for promotion to the next higher grade, an opportunity shall be given to the appropriate authority of the State to promote that officer to fill a vacancy in the Army National Guard or the Air National Guard of that jurisdiction. “(b) Automatic Federal Recognition.— An officer of the Army National Guard of the United States or the Air National Guard of the United States who is on a promotion list for promotion to the next higher grade as a result of selection for promotion as described in subsection (a) and who before the date of promotion is appointed in that higher grade to fill a vacancy in the Army National Guard or Air National Guard shall— “(1) be extended Federal recognition in that grade, without the examination prescribed in section 307 of title 32; and “(2) subject to section 14311(e) of this title, be promoted to that reserve grade effective on the date of the officer’s appointment in that grade in the Army National Guard or Air National Guard. “(c) National Guard Officers Failed of Selection.— An officer who is considered as failed of selection for promotion under section 14501 of this title to a grade may be extended Federal recognition in that grade only if the Secretary of the military department concerned finds that the officer is the only qualified officer available to fill a vacancy. The Secretary concerned may not delegate the authority under the preceding sentence. “(d) Transfer to Army Reserve or Air Force Reserve.— If, on the date on which an officer of the Army National Guard of the United States or of the Air National Guard of the United States who is on a promotion list as described in subsection (a) is to be promoted, the officer has not been promoted to fill a vacancy in the higher grade in the Army National Guard or the Air National Guard, the officer’s Federal recognition in the officer’s reserve grade shall be withdrawn and the officer shall be promoted 108 STAT. 2945and transferred to the Army Reserve or the Air Force Reserve as appropriate. “§ 14317. Officers in transition to and from the active-status list or active-duty list “(a) Effect of Transfer to Inactive Status or Retired Status.— If a reserve officer on the reserve active-status list is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade under this chapter or chapter 36 of this title, or after having been found qualified for Federal recognition in the higher grade under title 32, but before being promoted, the officer— “(1) shall be treated as if the officer had not been considered and recommended for promotion by the selection board or examined and been found qualified for Federal recognition; and “(2) may not be placed on a promotion list or promoted to the higher grade after returning to an active status, unless the officer is again recommended for promotion by a selection board convened under chapter 36 of this title or section 14101(a) or 14502 of this title or examined for Federal recognition under title 32. “(b) Effect of Placement on Active-Duty List.— A reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502 of this title and who before being promoted is placed on the active-duty list of the same armed force and placed in the same competitive category shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list for officers on the active-duty list established under chapter 36 of this title. “(c) Officers on a Promotion List Removed From Active-Duty List.— An officer who is on the active-duty list and is on a promotion list as the result of selection for promotion by a selection board convened under chapter 36 of this title and who before being promoted is removed from the active-duty list and placed on the reserve active-status list of the same armed force and in the same competitive category (including a regular officer who on removal from the active-duty list is appointed as a reserve officer and placed on the reserve active-status list) shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list established under this chapter. “(d) Officers Selected for Position Vacancies.— If a reserve officer is ordered to active duty (other than active duty for training) or full-time National Guard duty (other than full-time National Guard duty for training only) after being recommended for promotion under section 14314 of this title to fill a position vacancy or examined for Federal recognition under title 32, and before being promoted to fill that vacancy, the officer shall not be promoted while serving such active duty or full-time National Guard duty unless the officer is ordered to active duty as a member of the unit in which the vacancy exists when that unit is ordered to active duty. If, under this subsection, the name of an officer is removed from a list of officers recommended for promotion, the officer shall be treated as if the officer had not been considered for promotion or examined for Federal recognition. “(e) Under regulations prescribed by the Secretary of the military department concerned, a reserve officer who is not on the 108 STAT. 2946active-duty list and who is ordered to active duty in time of war or national emergency may, if eligible, be considered for promotion by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502 of this title for not more than two years from the date the officer is ordered to active duty unless the President suspends the operation of this section under the provisions of section 10213 or 644 of this title. “CHAPTER 1407— FAILURE OF SELECTION FOR PROMOTION AND INVOLUNTARY SEPARATION “Sec. “14501. Failure of selection for promotion. “14502. Special selection boards: correction of errors. “14503. Discharge of officers with less than five years of commissioned service or found not qualified for promotion to first lieutenant or lieutenant (junior grade). “14504. Effect of failure of selection for promotion: reserve first lieutenants of the Army, Air Force, and Marine Corps and reserve lieutenants (junior grade) of the Navy. “14505. Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy. “14506. Effect of failure of selection for promotion: reserve majors of the Army, Air Force, and Marine Corps and lieutenant commanders of the Navy. “14507. Removal from the active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy. “14508. Removal from the reserve active-status list for years of service: reserve general and flag officers. “14509. Separation at age 60: reserve officers below brigadier general or rear admiral (lower half). “14510. Separation at age 60: reserve brigadier generals and rear admirals (lower half). “14511. Separation at age 62: major generals and rear admirals. “14512. Separation at age 64: officers holding certain offices. “14513. Separation for failure of selection of promotion. “14514. Discharge or retirement for years of service or after selection for early removal. “14515. Discharge or retirement for age. “14516. Separation to be considered involuntary. “14517. Entitlement of officers discharged under this chapter to separation pay. “§ 14501. Failure of selection for promotion “(a) An officer on the reserve active-status list in a grade below the grade of colonel or, in the case of an officer in the Naval Reserve, captain who is in or above the promotion zone established for that officer’s grade and competitive category and who (1) is considered but not recommended for promotion (other than by a vacancy promotion board), or (2) declines to accept a promotion for which selected (other than by a vacancy promotion board), shall be considered to have failed of selection for promotion. “(b) Officers Twice Failed of Selection.— An officer shall be considered for all purposes to have twice failed of selection for promotion if any of the following applies: “(1) The officer is considered but not recommended for promotion a second time by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502(a) of this title. “(2) The officer declines to accept a promotion for which recommended by a mandatory promotion board convened under section 14101(a) or a special selection board convened under section 14502(a) or 14502(b) of this title after previously failing 108 STAT. 2947of selection or after the officer’s name was removed from the report of a selection board under section 14111(b) or from a promotion list under section 14310 of this title after recommendation for promotion by an earlier selection board described in subsection (a). “(3) The officer’s name has been removed from the report of a selection board under section 14111(b) or from a promotion list under section 14310 of this title after recommendation by a mandatory promotion board convened under section 14101(a) or by a special selection board convened under section 14502(a) or 14502(b) of this title and— “(A) the officer is not recommended for promotion by the next mandatory promotion board convened under section 14101(a) or special selection board convened under section 14502(a) of this title for that officer’s grade and competitive category; or “(B) the officer’s name is again removed from the report of a selection board under section 14111(b) or from a promotion list under section 14310 of this title. “§ 14502. Special selection boards: correction of errors “(a) Officers Not Considered Because of Administrative Error.— (1) In the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for selection for promotion from in or above the promotion zone by a mandatory promotion board convened under section 14101(a) of this title because of administrative error, the Secretary concerned shall convene a special selection board under this subsection to determine whether such officer or former officer should be recommended for promotion. Any such board shall be convened under regulations prescribed by the Secretary of Defense and shall be appointed and composed in accordance with section 14102 of this title and shall include the representation of competitive categories required by that section. The members of a board convened under this subsection shall be required to take an oath in the same manner as prescribed in section 14103 of this title. “(2) A special selection board convened under this subsection shall consider the record of the officer or former officer as that record would have appeared to the promotion board that should have considered the officer or former officer. That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board. “(3) If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer in a grade below the grade of colonel or, in the case of an officer or former officer of the Navy, captain, whose name was referred to it for consideration, the officer or former officer shall be considered to have failed of selection for promotion. “(b) Officers Considered But Not Selected; Material Error.— (1) In the case of an officer or former officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone under this chapter by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene a special selection board under this 108 STAT. 2948subsection to determine whether the officer or former officer should be recommended for promotion, if the Secretary determines that— “(A) the action of the selection board that considered the officer or former officer was contrary to law or involved material error of fact or material administrative error; or “(B) the selection board did not have before it for its consideration material information. “(2) A special selection board convened under paragraph (1) shall be appointed and composed in accordance with section 14102 of this title (including the representation of competitive categories required by that section), and the members of such a board shall take an oath in the same manner as prescribed in section 14103 of this title. “(3) Such board shall consider the record of the officer or former officer as that record, if corrected, would have appeared to the selection board that considered the officer or former officer. That record shall be compared with a sampling of the records of those officers of the same grade and competitive category who were recommended for promotion and those officers of the same grade and competitive category who were not recommended for promotion by that board. “(4) If a special selection board convened under paragraph (1) does not recommend for promotion an officer or former officer in the grade of lieutenant colonel or commander or below whose name was referred to it for consideration, the officer or former officer shall be considered to have failed of selection for promotion by the board which did consider the officer but incurs no additional failure of selection for promotion from the action of the special selection board. “(c) Report.— Each special selection board convened under this section shall submit to the Secretary of the military department concerned a written report, signed by each member of the board, containing the name of each officer it recommends for promotion and certifying that the board has considered carefully the record of each officer whose name was referred to it. “(d) Applicable Provisions.— The provisions of sections 14104, 14109, 14110, and 14111 of this title apply to the report and proceedings of a special selection board convened under this section in the same manner as they apply to the report and proceedings of a promotion board convened under section 14101(a) of this title. “(e) Appointment of Officers Recommended for Promotion.— (1) An officer whose name is placed on a promotion list as a result of recommendation for promotion by a special selection board convened under this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him. “(2) An officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer. 108 STAT. 2949 “(3) If the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer. “(f) Time Limits for Consideration.— The Secretary of Defense may prescribe by regulation the circumstances under which consideration by a special selection board is contingent upon application for consideration by an officer or former officer and time limits within which an officer or former officer must make such application in order to be considered by a special selection board under this section. “(g) Limitation of Other Jurisdiction.— No official or court of the United States shall have power or jurisdiction— “(1) over any claim based in any way on the failure of an officer or former officer of the armed forces to be selected for promotion by a selection board convened under chapter 1403 of this title until— “(A) the claim has been referred to a special selection board by the Secretary concerned and acted upon by that board; or “(B) the claim has been rejected by the Secretary without consideration by a special selection board; or “(2) to grant any relief on such a claim unless the officer or former officer has been selected for promotion by a special selection board convened under this section to consider the officer’s claim. “(h) Judicial Review.— (1) A court of the United States may review a determination by the Secretary concerned under subsection (a)(1), (b)(1), or (e)(3) not to convene a special selection board. If a court finds the determination to be arbitrary or capricious, not based on substantial evidence, or otherwise contrary to law, it shall remand the case to the Secretary concerned, who shall provide for consideration of the officer or former officer by a special selection board under this section. “(2) If a court finds that the action of a special selection board which considers an officer or former officer was contrary to law or involved material error of fact or material administrative error, it shall remand the case to the Secretary concerned, who shall provide the officer or former officer reconsideration by a new special selection board. “(i) Designation of Boards.— The Secretary of the military department concerned may designate a promotion board convened under section 14101(a) of this title as a special selection board convened under this section. A board so designated may function in both capacities. “§ 14503. Discharge of officers with less than five years of commissioned service or found not qualified for promotion to first lieutenant or lieutenant (junior grade) “(a) Authorized Discharges.— The Secretary of the military department concerned may discharge any reserve officer who— 108 STAT. 2950 “(1) has less than five years of service in an active status as a commissioned officer; or “(2) is serving in the grade of second lieutenant or ensign and has been found not qualified for promotion to the grade of first lieutenant or lieutenant (junior grade). “(b) Time for Discharge.— (1) An officer described in subsection (a)(2)— “(A) may be discharged at any time after being found not qualified for promotion; and “(B) if not sooner discharged, shall be discharged at the end of the 18-month period beginning on the date on which the officer is first found not qualified for promotion. “(2) Paragraph (1) shall not apply if the officer is sooner promoted. “(c) Regulations.— Discharges under this section shall be made under regulations prescribed by the Secretary of Defense and may be made without regard to section 12645 of this title. “§ 14504. Effect of failure of selection for promotion: reserve first lieutenants of the Army, Air Force, and Marine Corps and reserve lieutenants (junior grade) of the Navy “(a) General Rule.— A first lieutenant on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the reserve active-status list of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. “(b) Exceptions.— Subsection (a) does not apply (1) in the case of an officer retained as provided by regulation of the Secretary of the military department concerned in order to meet planned mobilization needs for a period not in excess of 24 months beginning with the date on which the President approves the report of the selection board which resulted in the second failure, or (2) as provided in section 12646 or 12686 of this title. “§ 14505. Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy “Unless retained as provided in section 12646 or 12686 of this title, a captain on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant on the reserve active-status list of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade and who has not been selected for continuation on the reserve active-status list under section 14701 of this title, shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. 108 STAT. 2951 “§ 14506. Effect of failure of selection for promotion: reserve majors of the Army, Air Force and Marine Corps and reserve lieutenant commanders of the Navy “Unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the first day of the month after the month in which the officer completes 20 years of commissioned service. “§ 14507. Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy “(a) Lieutenant Colonels and Commanders.— Unless continued on the reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service. “(b) Colonels and Navy Captains.— Unless continued on the reserve active-status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Air Force, or Marine Corps who holds the grade of colonel, and each reserve officer of the Navy who holds the grade of captain, and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service. This subsection does not apply to the adjutant general or assistant adjutants general of a State. “§ 14508. Removal from the reserve active-status list for years of service: reserve general and flag officers “(a) Thirty Years Service or Five Years in Grade.— Unless retired, transferred to the Retired Reserve, or discharged at an earlier date, each reserve officer of the Army, Air Force, or Marine Corps in the grade of brigadier general who has not been recommended for promotion to the grade of major general, and each reserve officer of the Navy in the grade of rear admiral (lower half) who has not been recommended for promotion to rear admiral shall, 30 days after completion of 30 years of commissioned service or on the fifth anniversary of the date of the officer’s appointment in the grade of brigadier general or rear admiral (lower half), 108 STAT. 2952whichever is later, be separated in accordance with section 14514 of this title. “(b) Thirty-Five Years Service or Five Years in Grade.— Unless retired, transferred to the Retired Reserve, or discharged at an earlier date, each reserve officer of the Anny, Air Force, or Marine Corps in the grade of major general, and each reserve officer of the Navy in the grade of rear admiral, shall, 30 days after completion of 35 years of commissioned service or on the fifth anniversary of the date of the officer’s appointment in the grade of major general or rear admiral, whichever is later, be separated in accordance with section 14514 of this title. “(c) Retention of Brigadier Generals.— A reserve officer of the Army or Air Force in the grade of brigadier general who would otherwise be removed from an active status under this subsection (a) may, in the discretion of the Secretary Of the Army or the Secretary of the Air Force, as the case may be, be retained in an active status, but not later than the date on which the officer becomes 60 years of age. Not more than 10 officers of the Army and not more than 10 officers of the Air Force may be retained under this subsection at any one time. “(d) Retention of Major Generals.— A reserve officer of the Army or Air Force in the grade of major general who would otherwise be removed from an active status under this subsection (b) may, in the discretion of the Secretary of the Army or the Secretary of the Air Force, as the case may be, be retained in an active status, but not later than the date on which the officer becomes 62 years of age. Not more than 10 officers of the Army and not more than 10 officers of the Air Force may be retained under this subsection at any one time. “(e) Exception for State Adjutants General and Assistant Adjutants General.— This section does not apply to an officer who is the adjutant general or assistant adjutant general of a State. “§ 14509. Separation at age 60: reserve officers in grades below brigadier general or rear admiral (lower half) “Each reserve officer of the Army, Navy, Air Force, or Marine Corps in a grade below brigadier general or rear admiral (lower halt) who has not been recommended for promotion to the grade of brigadier general or rear admiral (lower half) and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 60 years of age, be separated in accordance with section 14515 of this title. “§14510. Separation at age 60: reserve brigadier generals and rear admirals (lower half) “Unless retired, transferred to the Retired Reserve, or discharged at an earlier date, each reserve officer of the Army, Air Force, or Marine Corps in the grade of brigadier general who has not been recommended for promotion to the grade of major general, and each reserve rear admiral (lower half) of the Navy who has not been recommended for promotion to the grade of rear admiral, except an officer covered by section 14512 of this title, shall be separated in accordance with section 14515 of this title on the last day of the month in which the officer becomes 60 years of age. 108 STAT. 2953 “§14511. Separation at age 62: major generals and rear admirals “Unless retired, transferred to the Retired Reserve, or discharged at an earlier date, each reserve officer of the Anny, Air Force, or Marine Corps in the grade of major general and each reserve officer of the Navy in the grade of rear admiral, except an officer covered by section 14512 of this title, shall be separated in accordance with section 14515 of this title on the last day of the month in which the officer becomes 62 years of age. “§ 14512. Separation at age 64: officers holding certain offices “(a) Army and Air Force.— Unless retired, transferred to the Retired Reserve, or discharged at an earlier date, a reserve officer of the Army or Air Force who is Chief of the National Guard Bureau, an adjutant general, or if a reserve officer of the Army, commanding general of the troops of a State, shall on the last day of the month in which the officer becomes 64 years of age, be separated in accordance with section 14515 of this title. “(b) Navy and Marine Corps.— The Secretary of the Navy may defer the retirement under section 14510 or 14511 of a reserve officer of the Navy in a grade above captain or a reserve officer of the Marine Corps in a grade above colonel and retain the officer in an active status until the officer becomes 64 years of age. Not more than 10 officers may be so deferred at any one time, distributed between the Naval Reserve and the Marine Corps Reserve as the Secretary determines. “§ 14513. Separation for failure of selection of promotion “Each reserve officer of the Army, Navy, Air Force, or Marine Coits who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections— “(1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force; “(2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or “(3) if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment. “§ 14514. Discharge or retirement for years of service or after selection for early removal “Each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and who is required to be removed from an active status or from a reserve active-status list, as the case may be, under section 14507, 14508, 14704, or 14705 of this title (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law), in accordance with those sections, shall— “(1) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 108 STAT. 2954 “(2) if the officer is not qualified or does not apply for such transfer, be discharged from the officer’s reserve appointment. “§ 14515. Discharge or retirement for age “Each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status or on an inactive status list and who reaches the maximum age specified in section 14509, 14510, 14511, or 14512 of this title for the officer’s grade or position shall (unless the officer is sooner separated or the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the last day of the month in which the officer reaches that maximum age— “(1) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or “(2) if the officer is not qualified or does not apply for transfer to the Retired Reserve, be discharged from the officer’s reserve appointment. “§ 14516. Separation to be considered involuntary “The separation of an officer pursuant to section 14513, 14514, or 14515 of this title shall be considered to be an involuntary separation for purposes of any other provision of law. “§ 14517. Entitlement of officers discharged under this chapter to separation pay “An officer who is discharged under section 14513, 14514, or 14515 of this title is entitled to separation pay under section 1174 of this title if otherwise eligible under that section. “CHAPTER 1409— CONTINUATION OF OFFICERS ON THE RESERVE ACTIVE-STATUS LIST AND SELECTIVE EARLY REMOVAL “Sec. “14701. Selection of officers for continuation on the reserve active-status list. “14702. Retention on reserve active-status list of certain officers until age 60. “14703. Authority to retain chaplains and officers in medical specialties until specified age. “14704. Selective early removal from the reserve active-status list. “14705. Selective early retirement: reserve general and flag officers of the Navy and Marine Corps. “14706. Computation of total years of service. “§ 14701. Selection of officers for continuation on the reserve active-status list “(a) Consideration for Continuation.— (1) Upon application, a reserve officer of the Army, Navy, Air Force, or Marine Corps who is required to be removed from the reserve active-status list under section 14505, 14506, or 14507 of this title may, subject to the needs of the service and to section 14509 of this title, be considered for continuation on the reserve active-status fist by a selection board convened under section 14101(b) of this title. “(2) A reserve officer who holds the grade of captain in the Army, Air Force, or Marine Corps or the grade of lieutenant in the Navy and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the 108 STAT. 2955last day of the month in which the officer completes 20 years of commissioned service. “(3) A reserve officer who holds the grade of major or lieutenant commander and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service. “(4) A reserve officer who holds the grade of lieutenant colonel or commander and who is subject to separation under section 14514 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 33 years of commissioned service. “(5) A reserve officer who holds the grade of colonel in the Army, Air Force, or Marine Corps or the grade of captain in the Navy and who is subject to separation under section 14514 of this title may not be continued on the reserve active-status fist under this subsection for a period which extends beyond the last day of the month in which the officer completes 35 years of commissioned service. “(6) An officer who is selected for continuation on the reserve active-status list as a result of the convening of a selection board under section 14101(b) of this title but who declines to continue on that list shall be separated in accordance with section 14513 or 14514 of this title, as the case may be. “(7) Each officer who is continued on the reserve active-status list under this section, who is not subsequently promoted or continued on the active-status list, and whose name is not on a list of officers recommended for promotion to the next higher grade shall (unless sooner separated under another provision of law) be separated in accordance with section 14513 or 14514 of this title, as appropriate, upon the expiration of the period for which the officer was continued on the reserve active-status list. “(b) Approval of Secretary Concerned.— Continuation of an officer on the reserve active-status list under this section pursuant to action of a continuation board convened under section 14101(b) of this title is subject to the approval of the Secretary of the military department concerned. “(c) Instructions To Continuation Boards.— A continuation board convened under section 14101(b) of this title to consider officers for continuation on the reserve active-status list under this section shall act in accordance with the instructions and directions provided to the board by the Secretary of the military department concerned. “(d) Regulations.— The Secretary of Defense shall prescribe regulations for the administration of this section. “§ 14702. Retention on reserve active-status list of certain officers until age 60 “(a) Retention.— Notwithstanding the provisions of section 14506 or 14507 of this title, the Secretary of the military department concerned may, with the officer’s consent, retain on the reserve active-status list an officer in the grade of major, lieutenant colonel, or colonel who is— 108 STAT. 2956 “(1) an officer of the Army National Guard of the United States and assigned to a headquarters or headquarters detachment of a State; or “(2) a reserve officer of the Army or Air Force who, as a condition of continued employment as a National Guard or Reserve technician is required by the Secretary concerned to maintain membership in a Selected Reserve unit or organization. “(b) Separation at Age 60.— An officer may be retained under this section only so long as the officer continues to meet the conditions of subsection (a)(1) or (a)(2). An officer may not be retained under this section after the last day of the month in which the officer becomes 60 years of age. “§ 14703. Authority to retain chaplains and officers in medical specialties until specified age “(a) Retention.— Notwithstanding any provision of chapter 1407 of this title and except for officers referred to in sections 14503, 14504, 14505, and 14506 of this title and under regulations prescribed by the Secretary of Defense— “(1) the Secretary of the Army may, with the officer’s consent, retain in an active status any reserve officer assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps (if the officer has been designated as allied health officer or biomedical sciences officer in that Corps), the Optometry Section of the Medical Services Corps, the Chaplains, the Army Nurse Corps, or the Army Medical Specialists Corps; “(2) the Secretary of the Navy may, with the officer’s consent, retain in an active status any reserve officer appointed in the Medical Corps, Dental Coips, Nurse Corps, or Chaplain Corps or appointed in the Medical Services Corps and designated to perform as a veterinarian, optometrist, podiatrist, allied health officer, or biomedical sciences officer; and “(3) the Secretary of the Air Force may, with the officer’s consent, retain in an active status any reserve officer who is designated as a medical officer, dental officer, veterinary officer, Air Force nurse, or chaplain or who is designated as a biomedical sciences officer and is qualified for service as a veterinarian, optometrist, or podiatrist. “(b) Separation at Specified Age.— An officer may not be retained in active status under this section later than the date on which the officer becomes 67 years of age (or, in the case of a reserve officer of the Army in the Chaplains or a reserve officer of the Air Force designated as a chaplain, 60 years of age). “§14704. Selective early removal from the reserve active-status list “(a) Boards To Recommend Officers for Removal From Reserve Active-Status List.— Whenever the Secretary of the military department concerned determines that there are in any reserve component under the jurisdiction of the Secretary too many officers in any grade and competitive category who have at least 30 years of service computed under section 14706 of this title or at least 20 years of service computed under section 12732 of this title, the Secretary may convene a selection board under section 14101(b) of this title to consider all officers on that list who are in that 108 STAT. 2957grade and competitive category, and who have that amount of service, for the purpose of recommending officers by name for removal from the reserve active-status list, in the number specified by the Secretary by each grade and competitive category. “(b) Separation of Officers Selected.— In the case of an officer recommended for separation in the report of a board under subsection (a), the Secretary may separate the officer in accordance with section 14514 of this title. “(c) Regulations.— The Secretary of the military department concerned shall prescribe regulations for the administration of this section. “§ 14705. Selective early retirement: reserve general and flag officers of the Navy and Marine Corps “(a) Authority To Consider.— 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 whenever the Secretary of the Navy determines that such action is necessary. “(b) Boards.— If the Secretary of the Navy determines that consideration for early retirement under this section is necessary, the Secretary shall convene a board under section 14101(b) of this title to recommend an appropriate number of officers for early retirement. “(c) Separation Under Section 14514.— An officer selected for early retirement under this section shall be separated in accordance with section 14514 of this title. “§ 14706. Computation of total years of service “For the purpose of this chapter and chapter 1407 of this title, a reserve officer’s years of service include all service, other than constructive service, of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer). “CHAPTER 1411— ADDITIONAL PROVISIONS RELATING TO INVOLUNTARY SEPARATION “Sec. “14901. Separation of chaplains for loss of professional qualifications. “14902. Separation for substandard performance and for certain other reasons. “14903. Boards of inquiry. “14904. Rights and procedures. “14905. Officer considered for removal: retirement or discharge. “14906. Officers eligible to serve on boards. “14907. Army National Guard of the United States and Air National Guard of the United States: discharge and withdrawal of Federal recognition of officers absent without leave. “§ 14901. Separation of chaplains for loss of professional qualifications “(a) Separation.— Under regulations prescribed by the Secretary of Defense, an officer on the reserve active-status list who is appointed or designated as a chaplain may, if the officer fails to maintain the qualifications needed to perform the professional function of a chaplain, be discharged. The authority under the preceding sentence applies without regard to the provisions of section 12645 of this title. 108 STAT. 2958 “(b) Effect of Separation.— If an officer separated under this section is eligible for retirement, the officer may be retired. If the officer has completed the years of service required for eligibility for retired pay under chapter 1223 of this title, the officer may be transferred to the Retired Reserve. “§ 14902. Separation for substandard performance and for certain other reasons “(a) Substandard Performance of Duty.— The Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record of any reserve officer to determine whether that officer should be required, because that officer’s performance has fallen below standards prescribed by the Secretary concerned, to show cause for retention in an active status. “(b) Misconduct, Etc.— The Secretary of the military department concerned shall prescribe, by regulation, procedures for the review at any time of the record of any reserve officer to determine whether that officer should be required, because of misconduct, because of moral or professional dereliction, or because the officer’s retention is not clearly consistent with the interests of national security, to show cause for retention in an active status. “(c) Regulations.— The authority of the Secretary of a military department under this section shall be carried out subject to such limitations as the Secretary of Defense may prescribe by regulation. “§ 14903. Boards of inquiry “(a) Convening of Boards.— The Secretary of the military department concerned shall convene a board of inquiry at such time and place as the Secretary may prescribe to receive evidence and review the case of any officer who has been required to show cause for retention in an active status under section 14902 of this title. Each board of inquiry shall be composed of not less than three officers who have the qualifications prescribed in section 14906 of this title. “(b) Right to Fair Hearing.— A board of inquiry shall give a fair and impartial hearing to each officer required under section 14902 of this chapter to show cause for retention in an active status. “(c) Recommendations to Secretary.— If a board of inquiry determines that the officer has failed to establish that the officer should be retained in an active status, the board shall recommend to the Secretary concerned that the officer not be retained in an active status. “(d) Action by Secretary.— After review of the recommendation of the board of inquiry, the Secretary may— “(1) remove the officer from an active status; or “(2) determine that the case be closed. “(e) Action in Cases Where Cause for Retention Is Established.— (1) If a board of inquiry determines that an officer has established that the officer should be retained in an active status or if the Secretary determines that the case be closed, the officer’s case is closed. “(2) An officer who is required to show cause for retention under section 14902(a) of this title and whose case is closed under paragraph (1) may not again be required to show cause for retention 108 STAT. 2959under such subsection during the one-year period beginning on the date of that determination. “(3) (A) Subject to subparagraph (B), an officer who is required to show cause for retention under section 14902(b) of this title and whose case is closed under paragraph (1) may again be required to show cause for retention at any time. “(B) An officer who has been required to show cause for retention under section 14902(b) of this title and who is thereafter retained in an active status may not again be required to show cause for retention under such section solely because of conduct which was the subject of the previous proceeding, unless the recommendations of the board of inquiry that considered the officer’s case are determined to have been obtained by fraud or collusion. “§ 14904. Rights and procedures “(a) Procedural Rights.— Under regulations prescribed by the Secretary of Defense, an officer required under section 14902 of this title to show cause for retention in an active status— “(1) shall be notified in writing, at least 30 days before the hearing of the officer’s case by a board of inquiry, of the reasons for which the officer is being required to show cause for retention in an active status; “(2) shall be allowed a reasonable time, as determined by the board of inquiry, to prepare for showing of cause for retention in an active status; “(3) shall be allowed to appear in person and to be represented by counsel at proceedings before the board of inquiry; and “(4) shall be allowed full access to, and shall be furnished copies of, records relevant to the case, except that the board of inquiry shall withhold any record that the Secretary concerned determines should be withheld in the interest of national security. “(b) Summary of Records Withheld.— When a record is withheld under subsection (a)(4), the officer whose case is under consideration shall, to the extent that the interest of national security permits, be furnished a summary of the record so withheld. “§14905. Officer considered for removal: retirement or discharge “(a) Voluntary Retirement or Discharge.— At any time during proceedings under this chapter with respect to the removal of an officer from an active status, the Secretary of the military department concerned may grant a request by the officer— “(1) for voluntary retirement, if the officer is qualified for retirement; “(2) for transfer to the Retired Reserve if the officer has completed the years of service required for eligibility for retired pay under chapter 1223 of this title and is otherwise eligible for transfer to the Retired Reserve; or “(3) for discharge in accordance with subsection (b)(3). “(b) Required Retirement or Discharge.— An officer removed from an active status under section 14903 of this title shall— “(1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under that provision; 108 STAT. 2960 “(2) if eligible for transfer to the Retired Reserve and has completed the years of service required for retired pay under chapter 1223 of this title, be transferred to the Retired Reserve; and “(3) if ineligible for retirement or transfer to the Retired Reserve under paragraph (1) or (2) on the date of such removal— “(A) be honorably discharged in the grade then held, in the case of an officer whose case was brought under subsection (a) of section 14902 of this title; or “(B) be discharged in the grade then held, in the case of an officer whose case was brought under subsection (b) of section 14902 of this title. “(c) Separation Pay.— An officer who is discharged under subsection (b)(3) is entitled, if eligible therefor, to separation pay under section 1174(c) of this title. “§ 14906. Officers eligible to serve on boards “(a) Composition of Boards.— (1) Each officer who serves on a board convened under this chapter shall be an officer of the same armed force as the officer being required to show cause for retention in an active status. “(2) An officer may not serve on a board under this chapter unless the officer holds a grade above lieutenant colonel or commander and is senior in grade and rank to any officer considered by the board. “(b) Limitation.— A person may not be a member of more than one board convened under this chapter to consider the same officer. “§ 14907. Army National Guard of the United States and Air National Guard of the United States: discharge and withdrawal of Federal recognition of officers absent without leave “(a) Authority To Withdraw Federal Recognition.— If an officer of the Army National Guard of the United States or the Air National Guard of the United States has been absent without leave for three months, the Secretary of the Army or the Secretary of the Air Force, as appropriate, may— “(1) terminate the reserve appointment of the officer; and “(2) withdraw the officer’s Federal recognition as an officer of the National Guard. “(b) Discharge From Reserve Appointment.— An officer of the Army National Guard of the United States or the Air National Guard of the United States whose Federal recognition as an officer of the National Guard is withdrawn under section 323(b) of title 32 shall be discharged from the officer’s appointment as a reserve officer of the Army or the Air Force, as the case may be.”.