10 U.S.C. § 14310 — Removal of officers from a list of officers

Page 3734 TITLE 10—ARMED FORCES § 14309 cers for promotion to the next higher grade that is sub- mitted to the Secretary of the military department concerned on or after Dec. 28, 2001, and Secretary of the military department concerned may apply subsec. (c)(2) of this section in the case of an appointment of an offi- cer to a higher grade resulting from a report of a selec- tion board submitted to the Secretary before Dec. 28, 2001, if the Secretary determines that such appoint- ment would have been made on an earlier date that is on or after Oct. 1, 2001, and was delayed under the cir- cumstances specified in section 741(d)(4) of this title, see section 506(c) of Pub. L. 107–107, set out as a note under section 741 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. § 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 un- less the officer expressly declines the appoint- ment or is granted a delay of promotion under section 14312 of this title. (b) OATH.—An officer who has served continu- ously 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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2938.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 3394 and 8394 of this title, prior to re- peal by Pub. L. 103–337, § 1629(a)(1), (c)(1). 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. § 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 pro- motion list at any time before the date on which the officer is promoted. (b) REMOVAL FOR WITHHOLDING OF SENATE AD- VICE 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) REMOVAL AFTER 18 MONTHS.—(1) If an offi- cer whose name is on a list of officers approved for promotion under section 14308(a) of this title to a grade for which appointment is required by section 12203(a) of this title to be made by and with the advice and consent of the Senate is not appointed to that grade under such section dur- ing the officer’s promotion eligibility period, the officer’s name shall be removed from the list unless as of the end of such period the Senate has given its advice and consent to the appoint- ment. (2) Before the end of the promotion eligibility period with respect to an officer under para- graph (1), the President may extend that period for purposes of paragraph (1) by an additional 12 months. (3) In this subsection, the term ‘‘promotion eligibility period’’ means, with respect to an of- ficer whose name is on a list of officers approved for promotion under section 14308(a) of this title to a grade for which appointment is required by section 12203(a) of this title to be made by and with the advice and consent of the Senate, the period beginning on the date on which the list is so approved and ending on the first day of the eighteenth month following the month during which the list is so approved. (d) ADMINISTRATIVE REMOVAL.—Under regula- tions prescribed by the Secretary concerned, if an officer on the reserve active-status list is dis- charged or dropped from the rolls or transferred to a retired status after having been rec- ommended for promotion to a higher grade under this chapter or having been found quali- fied for Federal recognition in the higher grade under title 32, but before being promoted, the of- ficer’s name shall be administratively removed from the list of officers recommended for pro- motion by a selection board. (e) CONTINUED ELIGIBILITY FOR PROMOTION.—An officer whose name is removed from a list under subsection (a), (b), or (c) continues to be eligible for consideration for promotion. If that officer is recommended for promotion by the next selec- tion board convened for that officer’s grade and competitive category and the officer is pro- moted, the Secretary of the military depart- ment concerned may, upon the promotion, grant the officer the same date of rank, the same ef- fective 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. (Added Pub. L. 103–337, div. A, title XVI, § 1611, Oct. 5, 1994, 108 Stat. 2938; amended Pub. L. 109–364, div. A, title V, § 515(b), Oct. 17, 2006, 120 Stat. 2186; Pub. L. 110–181, div. A, title X, § 1063(a)(16), Jan. 28, 2008, 122 Stat. 322; Pub. L. 111–383, div. A, title V, § 504(b), title X, § 1075(f)(7), Jan. 7, 2011, 124 Stat. 4208, 4376.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 5905 of this title, prior to repeal by Pub. L. 103–337, § 1629(b)(2). AMENDMENTS 2011—Subsec. (d). Pub. L. 111–383, § 504(b)(2), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 111–383, § 1075(f)(7), made technical amendment to directory language of Pub. L. 110–181, § 1063(a)(16). See 2008 Amendment note below. Pub. L. 111–383, § 504(b)(1), redesignated subsec. (d) as (e). 2008—Subsec. (d). Pub. L. 110–181, § 1063(a)(16), as amended by Pub. L. 111–383, § 1075(f)(7), inserted comma after ‘‘(a)’’. 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-