10 U.S.C. § 14904 — Rights and procedures

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. Page 3759 TITLE 10—ARMED FORCES § 14907 118–159, div. A, title V, § 509(b), Dec. 23, 2024, 138 Stat. 1872.) Editorial Notes AMENDMENTS 2024—Subsec. (a)(3). Pub. L. 118–159, § 509(b)(1), sub- stituted ‘‘subject to subsection (c), shall be’’ for ‘‘shall be’’. Subsec. (c). Pub. L. 118–159, § 509(b)(2), added subsec. (c). 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. § 14905. Officer considered for removal: retire- ment 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 de- partment 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 re- quired for eligibility for retired pay under chapter 1223 of this title and is otherwise eligi- ble for transfer to the Retired Reserve; or (3) for discharge in accordance with sub- section (b)(3). (b) REQUIRED RETIREMENT OR DISCHARGE.—An officer removed from an active status under sec- tion 14903 of this title shall— (1) if eligible for voluntary retirement under any provision of law on the date of such re- moval, be retired in the grade and with the re- tired pay for which he would be eligible if re- tired under that provision; (2) if eligible for transfer to the Retired Re- serve and has completed the years of service required for retired pay under chapter 1223 of this title, be transferred to the Retired Re- serve; 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 sec- tion 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 dis- charged under subsection (b)(3) is entitled, if eli- gible therefor, to separation pay under section 1174(c) of this title. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2959.) 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. § 14906. Officers eligible to serve on boards (a) COMPOSITION OF BOARDS.—Each board con- vened under this chapter shall consist of officers appointed as follows: (1) Each member of the board shall be an of- ficer of the same armed force as the officer being required to show cause for retention in an active status. (2) Each member of the board shall hold a grade above major or lieutenant commander, except that at least one member of the board shall hold a grade above lieutenant colonel or commander. (3) Each member of the board shall be senior in grade to any officer to be considered by the board. (b) LIMITATION.—A person may not be a mem- ber of more than one board convened under this chapter to consider the same officer. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2960; amended Pub. L. 106–65, div. A, title V, § 504(b), Oct. 5, 1999, 113 Stat. 591.) Editorial Notes AMENDMENTS 1999—Subsec. (a). Pub. L. 106–65 amended heading and text generally. Prior to amendment, text read as fol- lows: ‘‘(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 re- tention in an active status. ‘‘(2) An officer may not serve on a board under this chapter unless the officer holds a grade above lieuten- ant colonel or commander and is senior in grade and rank to any officer considered by the board.’’ 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. § 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 REC- OGNITION.—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 recogni- tion 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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2960.)