10 U.S.C. § 14902 — Separation for substandard performance

Page 3757 TITLE 10—ARMED FORCES § 14902 Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 6389(f)(3) of this title, prior to repeal by Pub. L. 103–337, § 1628(4). AMENDMENTS 2006—Subsec. (a). Pub. L. 109–163 substituted ‘‘Navy Reserve’’ for ‘‘Naval Reserve’’. 2003—Subsec. (b)(1). Pub. L. 108–136 substituted ‘‘se- lection board’’ for ‘‘continuation board’’. 1998—Subsec. (b). Pub. L. 105–261 designated existing provisions as par. (1), inserted ‘‘of officers’’ after ‘‘con- sideration’’ and ‘‘continuation’’ after ‘‘shall convene a’’, and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title. § 14706. Computation of total years of service (a) For the purpose of this chapter and chapter 1407 of this title, a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than the following: (1) Service as a warrant officer. (2) Constructive service. (3) Service after appointment as a commis- sioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appoint- ment, designation, or assignment to a profes- sional specialty, but only if that service oc- curs before the officer commences initial serv- ice on active duty or initial service in the Ready Reserve in the specialty that results from such a degree. (b) The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service pre- ceding the member’s service in a student status. (c) For purposes of subsection (a)(3), an officer shall be considered to be in a professional spe- cialty if the officer is appointed or assigned to the Medical Corps, the Dental Corps, the Veteri- nary Corps, the Medical Service Corps, the Nurse Corps, or the Army Medical Specialists Corps or is designated as a chaplain or judge ad- vocate. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2957; amended Pub. L. 106–65, div. A, title V, § 515, Oct. 5, 1999, 113 Stat. 594.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 3853 and 8853 of this title, prior to re- peal by Pub. L. 103–337, § 1629(a)(3), (c)(3). AMENDMENTS 1999—Pub. L. 106–65 amended text generally. Prior to amendment, text read as follows: ‘‘For the purpose of this chapter and chapter 1407 of this title, a reserve of- ficer’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).’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title. CHAPTER 1411—ADDITIONAL PROVISIONS RELATING TO INVOLUNTARY SEPARATION Sec. 14901. Separation of chaplains for loss of profes- sional 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 pro- fessional qualifications (a) SEPARATION.—Under regulations prescribed by the Secretary of Defense, an officer on the re- serve active-status list who is appointed or des- ignated as a chaplain may, if the officer fails to maintain the qualifications needed to perform the professional function of a chaplain, be dis- charged. The authority under the preceding sen- tence applies without regard to the provisions of section 12645 of this title. (b) EFFECT OF SEPARATION.—If an officer sepa- rated under this section is eligible for retire- ment, 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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2957.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title. § 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 reten- tion 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 de- Page 3758 TITLE 10—ARMED FORCES § 14903 termine whether that officer should be required, because of misconduct, because of moral or pro- fessional dereliction, or because the officer’s re- tention is not clearly consistent with the inter- ests of national security, to show cause for re- tention in an active status. (c) REGULATIONS.—The authority of the Sec- retary of a military department under this sec- tion shall be carried out subject to such limita- tions as the Secretary of Defense may prescribe by regulation. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2958.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title. § 14903. Boards of inquiry (a) CONVENING OF BOARDS.—The Secretary of the military department concerned shall con- vene a board of inquiry at such time and place as the Secretary may prescribe to receive evi- dence 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 qualifica- tions prescribed in section 14906 of this title. (b) RIGHT TO FAIR HEARING.—A board of in- quiry shall give a fair and impartial hearing to each officer required under section 14902 of this title 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 re- tained in an active status, the board shall rec- ommend to the Secretary concerned that the of- ficer 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 RETEN- TION 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 reten- tion under such subsection during the one-year period beginning on the date of that determina- tion. (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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2958; amended Pub. L. 104–106, div. A, title XV, § 1501(b)(32), Feb. 10, 1996, 110 Stat. 498.) Editorial Notes AMENDMENTS 1996—Subsec. (b). Pub. L. 104–106 substituted ‘‘title’’ for ‘‘chapter’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–106 effective as if included in the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as enacted on Oct. 5, 1994, see section 1501(f)(3) of Pub. L. 104–106, set out as a note under section 113 of this title. EFFECTIVE DATE Section effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as a note under section 10001 of this title. § 14904. Rights and procedures (a) PROCEDURAL RIGHTS.—Under regulations prescribed by the Secretary of Defense, an offi- cer 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 re- tention in an active status; (2) shall be allowed a reasonable time, as de- termined by the board of inquiry, to prepare for showing of cause for retention in an active status; (3) subject to subsection (c), shall be allowed to appear in person and to be represented by counsel at proceedings before the board of in- quiry; 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 con- cerned 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 secu- rity permits, be furnished a summary of the record so withheld. (c) REMOTE APPEARANCE.—The Secretary con- cerned may determine that, in exceptional cir- cumstances, the appearance of an officer before the proceedings of a board of inquiry may be via means other than in person. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2959; amended Pub. L.