10 U.S.C. § 14311 — Delay of promotion: involuntary

Page 3735 TITLE 10—ARMED FORCES § 14311 2006—Subsec. (c). Pub. L. 109–364, § 515(b)(1)(B), added subsec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 109–364, § 515(b)(2), which directed amendment of par. (1) of subsec. (d) by substituting ‘‘(b), or (c)’’ for ‘‘or (b)’’, was executed by amending text of subsec. (d), which does not contain any pars., to reflect the probable intent of Congress. Pub. L. 109–364, § 515(b)(1)(A), redesignated subsec. (c) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–364 applicable to any pro- motion list approved by the President after Jan. 1, 2007, see section 515(c) of Pub. L. 109–364, set out as a note under section 629 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. REMOVALS FROM PROMOTION LIST Pub. L. 103–337, div. A, title XVI, § 1684(b), Oct. 5, 1994, 108 Stat. 3024, as amended by Pub. L. 104–106, div. A, title XV, § 1501(a)(9), Feb. 10, 1996, 110 Stat. 495, provided that: ‘‘An action that was initiated before the effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title] under the laws and reg- ulations in effect before that date to remove the name of an officer from a promotion list or from a list of offi- cers recommended or approved for promotion shall con- tinue on and after such date as if such action had been initiated under section 14111(c) or 14310, as appropriate, of title 10, United States Code, as added by this title.’’ Executive Documents DELEGATION OF FUNCTIONS For assignment of functions of President under sub- sec. (a) of this section, see section 1(d) of Ex. Ord. No. 13358, Sept. 28, 2004, 69 F.R. 58797, set out as a note under section 301 of Title 3, The President. Functions of President under subsec. (c)(2) of this sec- tion delegated to Secretary of Defense, with authority for Secretary to redelegate, see Ex. Ord. No. 13598, §§ 1(b), 2, Jan. 27, 2012, 77 F.R. 5371, set out as a note under section 301 of Title 3, The President. § 14311. Delay of promotion: involuntary (a) DELAY DURING INVESTIGATIONS AND PRO- CEEDINGS.—(1) Under regulations prescribed by the Secretary of Defense, 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 pend- ing against the officer. (E) Substantiated adverse information about the officer that is material to the decision to appoint the officer is under review by the Sec- retary of Defense or the Secretary concerned. (F) The Secretary of the military depart- ment concerned determines that credible in- formation of adverse nature, including a sub- stantiated adverse finding or conclusion de- scribed in section 14107(a)(3)(A) of this title, with respect to the officer will result in the convening of a special selection review board under section 14502a of this title to review the officer and recommend whether the rec- ommendation for promotion of the officer should be sustained. (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 sep- arated by the Secretary of the military depart- ment concerned as the result of having been re- quired to show cause for retention, if the officer is acquitted of the charges, or if, after a review of substantiated adverse information about the officer regarding the requirement for exemplary conduct set forth in section 7233, 8167, or 9233 of this title, as applicable, the officer is deter- mined to be among the officers best qualified for promotion, as the case may be, then (unless ac- tion to delay the officer’s appointment to the higher grade has been taken under subsection (b)) the officer shall be retained on the pro- motion list (including an approved all-fully- qualified-officers list, if applicable), list of offi- cers 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 inter- vened, unless the Secretary concerned deter- mines that the officer was unqualified for pro- motion for any part of the delay. If the Sec- retary makes such a determination, the Sec- retary may adjust such date of rank, effective date of pay and allowances, and position on the reserve active-status list as the Secretary con- siders appropriate under the circumstances. (3) In the case of an officer whose promotion is delayed pursuant to paragraph (1)(F) and whose recommendation for promotion is sustained, au- thorities for the promotion of the officer are specified in section 14502a(f) of this title. (b) DELAY FOR LACK OF QUALIFICATIONS.— Under regulations prescribed by the Secretary of Defense, the appointment of an officer to a high- er grade may also be delayed if there is cause to believe that the officer has not met the require- ment for exemplary conduct set forth in section 7233, 8167, or 9233 of this title, as applicable, or is mentally, physically, morally, or profes- sionally unqualified to perform the duties of the grade to which selected. If it is later determined by a civilian official of the Department of De- fense (not below the level of Secretary of a mili- tary department) that the officer is qualified for promotion to the higher grade and, after a re- view of adverse information regarding the re- quirement for exemplary conduct set forth in section 7233, 8167, or 9233 of this title, as applica- ble, the officer is determined to be among the of- ficers best qualified for promotion to the higher grade, the officer shall be retained on the pro- Page 3736 TITLE 10—ARMED FORCES § 14311 motion list (including an approved all-fully- qualified-officers list, if applicable), 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 de- termines that the officer was unqualified for promotion for any part of the delay. If the Sec- retary makes such a determination, the Sec- retary may adjust such date of rank, effective date of pay and allowances, and position on the reserve active-status list as the Secretary con- siders appropriate under the circumstances. (c) NOTICE TO OFFICER.—(1) The appointment of an officer to a higher grade may not be de- layed under subsection (a) or (b) unless the offi- cer 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 no- tice 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 op- portunity 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. (3) Notwithstanding paragraphs (1) and (2), in the case of an officer whose promotion is de- layed pursuant to subsection (a)(1)(F), require- ments applicable to notice and opportunity for response to such delay are specified in section 14502a(c)(3) of this title. (d) MAXIMUM LENGTH OF DELAY IN PRO- MOTION.—The appointment of an officer to a higher grade may not be delayed under sub- section (a) or (b) for more than six months after the date on which the officer would otherwise have been promoted unless the Secretary con- cerned specifies a further period of delay. An of- ficer’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 Fed- eral or State court of competent jurisdiction or more than 90 days after final action has been taken in any court-martial case against the offi- cer. 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 AS- SIGNED.—(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 limi- tations. The delay shall expire when the Sec- retary determines that the delay is no longer re- quired to ensure such compliance. (2) The promotion of an officer described in paragraph (1) shall also be delayed while the of- ficer is on duty described in that paragraph un- less 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 re- serve 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 im- posed 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 recog- nized 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 effec- tive upon the officer’s release from such duty. The date of rank and position on the reserve ac- tive-status list of the officer shall be the date the officer would have been promoted to or rec- ognized 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 pro- motion 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 re- quired 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 Na- tional Guard duty in the grade in which the offi- cer 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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2939; amended Pub. L. 107–107, div. A, title V, § 505(c)(2)(B), Dec. 28, 2001, 115 Stat. 1088; Pub. L. 109–364, div. A, title V, § 511(b), Oct. 17, 2006, 120 Stat. 2182; Pub. L. 111–383, div. A, title X, § 1075(g)(4), Jan. 7, 2011, 124 Stat. 4377; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–283, div. A, title V, § 505(b)(3), Jan. 1, 2021, 134 Stat. 3572.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 3363(e), 3380(b), 5902(d), 8363(g), and 8380(b) of this title, prior to repeal by Pub. L. 103–337, § 1629(a)(1), (b)(2), (c)(1). AMENDMENTS 2021—Subsec. (a)(1)(F). Pub. L. 116–283, § 505(b)(3)(A)(i), added subpar. (F). Subsec. (a)(3). Pub. L. 116–283, § 505(b)(3)(A)(ii), added par. (3). Subsec. (c)(3). Pub. L. 116–283, § 505(b)(3)(B), added par. (3). Page 3737 TITLE 10—ARMED FORCES § 14312 2018—Subsecs. (a)(2), (b). Pub. L. 115–232 substituted ‘‘section 7233, 8167, or 9233’’ for ‘‘section 3583, 5947, or 8583’’ in subsec. (a)(2) and in two places in subsec. (b). 2011—Subsec. (b). Pub. L. 111–383 made technical amendment to directory language of Pub. L. 109–364, § 511(b)(3). See 2006 Amendment note below. 2006—Subsec. (a)(1). Pub. L. 109–364, § 511(b)(1), sub- stituted ‘‘Secretary of Defense’’ for ‘‘Secretary of the military department concerned’’ in introductory provi- sions. Subsec. (a)(1)(E). Pub. L. 109–364, § 511(b)(2)(A), added subpar. (E). Subsec. (a)(2). Pub. L. 109–364, § 511(b)(2)(B), struck out ‘‘or’’ after ‘‘show cause for retention,’’ and inserted ‘‘or if, after a review of substantiated adverse informa- tion about the officer regarding the requirement for ex- emplary conduct set forth in section 3583, 5947, or 8583 of this title, as applicable, the officer is determined to be among the officers best qualified for promotion,’’ after ‘‘of the charges,’’. Subsec. (b). Pub. L. 109–364, § 511(b)(3), as amended by Pub. L. 111–383, § 1075(g)(4), inserted ‘‘has not met the requirement for exemplary conduct set forth in section 3583, 5947, or 8583 of this title, as applicable, or’’ before ‘‘is mentally, physically,’’ and substituted ‘‘If it is later determined by a civilian official of the Depart- ment of Defense (not below the level of Secretary of a military department) that the officer is qualified for promotion to the higher grade and, after a review of ad- verse information regarding the requirement for exem- plary conduct set forth in section 3583, 5947, or 8583 of this title, as applicable, the officer is determined to be among the officers best qualified for promotion to the higher grade’’ for ‘‘If the Secretary concerned later de- termines that the officer is qualified for promotion to the higher grade’’. Pub. L. 109–364, § 511(b)(1), substituted ‘‘Secretary of Defense’’ for ‘‘Secretary of the military department concerned’’. 2001—Subsec. (a)(2). Pub. L. 107–107, § 505(c)(2)(B)(i), inserted ‘‘(including an approved all-fully-qualified-of- ficers list, if applicable)’’ after ‘‘on the promotion list’’. Subsec. (b). Pub. L. 107–107, § 505(c)(2)(B)(ii), inserted ‘‘(including an approved all-fully-qualified-officers list, if applicable)’’ after ‘‘on the promotion list’’ in second sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 111–383, div. A, title X, § 1075(g), Jan. 7, 2011, 124 Stat. 4376, provided that amendment by section 1075(g)(4) is effective as of Oct. 17, 2006, and as if in- cluded in Pub. L. 109–364 as enacted. EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–364 effective Oct. 17, 2006, and applicable with respect to officers on promotion lists established on or after such date, see section 511(e) of Pub. L. 109–364, set out as a note under section 624 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. DELAYS IN PROMOTIONS Pub. L. 103–337, div. A, title XVI, § 1684(a), Oct. 5, 1994, 108 Stat. 3024, provided that: ‘‘(1) A delay in a promotion that is in effect on the day before the effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title] under the laws and regulations in effect on that date shall continue in effect on and after that date as if the promotion had been delayed under section 14311 of title 10, United States Code, as added by this title. ‘‘(2) The delay of the promotion of a reserve officer of the Army or the Air Force which was in effect solely to achieve compliance with limitations set out in section 524 of title 10, United States Code, or with regulations prescribed by the Secretary of Defense with respect to sections 3380(c) and 8380(c) of title 10, United States Code, as in effect on the day before the effective date of this title, shall continue in effect as if the promotion had been delayed under section 14311(e) of such title, as added by this title.’’ § 14312. Delay of promotion: voluntary (a) AUTHORITY FOR VOLUNTARY DELAYS.—(1) The Secretary of the military department con- cerned may, by regulation, permit delays of a promotion of an officer who is recommended for promotion by a mandatory selection board con- vened under section 14101(a) or a special selec- tion 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 other- wise be promoted. (2) Regulations under this section shall pro- vide that— (A) a request for such a delay of promotion must be submitted by the officer concerned be- fore the delay may be approved; and (B) denial of such a request shall not be con- sidered to be a failure of selection for pro- motion unless the officer declines to accept a promotion under circumstances set forth in subsection (c). (b) EFFECT OF APPROVAL OF REQUEST.—If a re- quest for delay of a promotion under subsection (a) is approved, the officer’s name shall remain on the promotion list during the authorized pe- riod 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 accept- ance. Such an acceptance of a promotion shall be made in accordance with regulations pre- scribed under this section. (c) EFFECT OF DECLINING A PROMOTION.—An of- ficer’s name shall be removed from the pro- motion 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 author- ized voluntary delays of promotion under sub- section (a) to the grade concerned and the offi- cer declines to accept an appointment to a higher grade. (2) The Secretary concerned has authorized voluntary delays of promotion under sub- section (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 pro-