10 U.S.C. § 12304b — Selected Reserve: order to active duty

Page 3669 TITLE 10—ARMED FORCES § 12304b essary to augment the active Armed Forces of the United States for the effective conduct of Operation United Assistance, which is providing support to civil- ian-led humanitarian assistance and consequence man- agement support related to the Ebola virus disease out- break in West Africa. In furtherance of this operation, under the stated authority, I hereby authorize the Sec- retary of Defense, and the Secretary of Homeland Secu- rity with respect to the Coast Guard when it is not op- erating as a service in the Navy, under their respective jurisdictions, to order to active duty any units, and any individual members not assigned to a unit orga- nized to serve as a unit of the Selected Reserve, or any member in the Individual Ready Reserve mobilization category and designated as essential under regulations prescribed by the Secretary concerned, and to termi- nate the service of those units and members ordered to active duty. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. BARACK OBAMA. EX. ORD. NO. 13919. ORDERING THE SELECTED RESERVE OF THE ARMED FORCES TO ACTIVE DUTY Ex. Ord. No. 13919, Apr. 30, 2020, 85 F.R. 26591, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 12304 of title 10, United States Code, and having determined that it is necessary to augment the regular Armed Forces of the United States for a named operational mission, specifically the ‘‘Enhanced Department of Defense Counternarcotic Operation in the Western Hemisphere,’’ I hereby order as follows: SECTION 1. Activation Authority. The Secretary of De- fense is directed to order to active duty for not more than 365 consecutive days, any units, and any indi- vidual members not assigned to a unit organized to serve as a unit, of the Selected Reserve under the juris- diction of the Secretary of Defense, not to exceed 200 Selected Reservists at any one time, as he considers necessary. SEC. 2. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP. § 12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve: order to active duty to provide assistance in re- sponse to a major disaster or emergency (a) AUTHORITY.—When a Governor requests Federal assistance in responding to a major dis- aster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of the member affected, order any unit, and any member not assigned to a unit or- ganized to serve as a unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active duty for a continuous period of not more than 120 days to respond to the Governor’s request. (b) EXCLUSION FROM STRENGTH LIMITATIONS.— Members ordered to active duty under this sec- tion shall not be counted in computing author- ized strength of members on active duty or members in grade under this title or any other law. (c) TERMINATION OF DUTY.—Whenever any unit or member of the reserve components is ordered to active duty under this section, the service of all units or members so ordered to active duty may be terminated by order of the Secretary of Defense or law. (Added Pub. L. 112–81, div. A, title V, § 515(a)(1), Dec. 31, 2011, 125 Stat. 1394.) § 12304b. Selected Reserve: order to active duty for preplanned missions in support of the combatant commands (a) AUTHORITY.—When the Secretary of a mili- tary department determines that it is necessary to augment the active forces for a preplanned mission in support of a combatant command, the Secretary may, subject to subsection (b), order any unit of the Selected Reserve (as de- fined in section 10143(a) of this title), without the consent of the members, to active duty for not more than 365 consecutive days. (b) LIMITATIONS.—(1)(A) Except as provided under subparagraph (B), units may be ordered to active duty under this section only if— (i) the manpower and associated costs of such active duty are specifically included and identified in the defense budget materials for the fiscal year or years in which such units are anticipated to be ordered to active duty; and (ii) the budget information on such costs in- cludes a description of the mission for which such units are anticipated to be ordered to ac- tive duty and the anticipated length of time of the order of such units to active duty on an in- voluntary basis. (B) In the event the President’s budget is de- livered later than April 1st in the year prior to the year of the mobilization of one or more units under this section, the Secretary con- cerned may submit to Congress the information required under subparagraph (A) in a separate notice. (2) Not more than 60,000 members of the re- serve components of the armed forces may be on active duty under this section at any one time. (c) EXCLUSION FROM STRENGTH LIMITATIONS.— Members ordered to active duty under this sec- tion shall not be counted in computing author- ized strength in members on active duty or total number of members in grade under this title or any other law. (d) NOTICE TO CONGRESS.—Whenever the Sec- retary of a military department orders any unit of the Selected Reserve to active duty under subsection (a), such Secretary shall submit to Congress a report, in writing, setting forth the circumstances necessitating the action taken under this section and describing the antici- pated use of such unit. (e) TERMINATION OF DUTY.—Whenever any unit of the Selected Reserve is ordered to active duty Page 3670 TITLE 10—ARMED FORCES § 12305 1 See References in Text note below. under subsection (a), the service of all units so ordered to active duty may be terminated— (1) by order of the Secretary of the military department concerned; or (2) by law. (f) RELATIONSHIP TO WAR POWERS RESOLU- TION.—Nothing contained in this section shall be construed as amending or limiting the applica- tion of the provisions of the War Powers Resolu- tion (50 U.S.C. 1541 et seq.). (g) CONSIDERATIONS FOR INVOLUNTARY ORDER TO ACTIVE DUTY.—In determining which units of the Selected Reserve will be ordered to duty without their consent under this section, appro- priate consideration shall be given to— (1) the length and nature of previous service, to assure such sharing of exposure to hazards as national security and military require- ments will reasonably allow; (2) the frequency of assignments during serv- ice career; (3) family responsibilities; and (4) employment necessary to maintain the national health, safety, or interest. (h) POLICIES AND PROCEDURES.—The Secre- taries of the military departments shall pre- scribe policies and procedures to carry out this section, including on determinations with re- spect to orders to active duty under subsection (g). Such policies and procedures shall not go into effect until approved by the Secretary of Defense. (i) DEFENSE BUDGET MATERIALS DEFINED.—In this section, the term ‘‘defense budget mate- rials’’ has the meaning given that term in sec- tion 231(f)(2) 1 of this title. (Added Pub. L. 112–81, div. A, title V, § 516(a)(1), Dec. 31, 2011, 125 Stat. 1395; amended Pub. L. 112–239, div. A, title X, § 1014(b), Jan. 2, 2013, 126 Stat. 1908; Pub. L. 118–31, div. A, title V, § 513, Dec. 22, 2023, 137 Stat. 245.) Editorial Notes REFERENCES IN TEXT The War Powers Resolution, referred to in subsec. (f), is Pub. L. 93–148, Nov. 7, 1973, 87 Stat. 555, which is clas- sified generally to chapter 33 (§ 1541 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1541 of Title 50 and Tables. Section 231(f)(2) of this title, referred to in subsec. (i), was redesignated as section 231(g)(2) of this title by Pub. L. 117–263, div. A, title III, § 352(a)(2), Dec. 23, 2022, 136 Stat. 2533, and subsequently was redesignated as section 231(h)(2) of this title by Pub. L. 118–159, div. A, title X, § 1021(1), Dec. 23, 2024, 138 Stat. 2052. AMENDMENTS 2023—Subsec. (b)(1). Pub. L. 118–31 substituted ‘‘(A) Except as provided under subparagraph (B), units’’ for ‘‘Units’’, redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A), and added subpar. (B). 2013—Subsec. (i). Pub. L. 112–239 substituted ‘‘section 231(f)(2)’’ for ‘‘section 231(g)(2)’’. § 12305. Authority of President to suspend cer- tain laws relating to promotion, retirement, and separation (a) Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend any provision of law re- lating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States. (b) A suspension made under the authority of subsection (a) shall terminate (1) upon release from active duty of members of the reserve com- ponent ordered to active duty under the author- ity of section 12301, 12302, or 12304 of this title, as the case may be, or (2) at such time as the Presi- dent determines the circumstances which re- quired the action of ordering members of the re- serve component to active duty no longer exist, whichever is earlier. (c) Upon the termination of a suspension made under the authority of subsection (a) of a provi- sion of law otherwise requiring the separation or retirement of officers on active duty because of age, length of service or length of service in grade, or failure of selection for promotion, the Secretary concerned shall extend by up to 90 days the otherwise required separation or retire- ment date of any officer covered by the sus- pended provision whose separation or retirement date, but for the suspension, would have been be- fore the date of the termination of the suspen- sion or within 90 days after the date of such ter- mination. (Added Pub. L. 98–94, title X, § 1021(a), Sept. 24, 1983, 97 Stat. 670, § 673c; amended Pub. L. 98–525, title XIV, § 1405(16), Oct. 19, 1984, 98 Stat. 2622; re- numbered § 12305 and amended Pub. L. 103–337, div. A, title XVI, §§ 1662(e)(2), 1675(c)(3), Oct. 5, 1994, 108 Stat. 2992, 3017; Pub. L. 107–107, div. A, title V, § 508(a), Dec. 28, 2001, 115 Stat. 1090.) Editorial Notes AMENDMENTS 2001—Subsec. (c). Pub. L. 107–107 added subsec. (c). 1994—Pub. L. 103–337, § 1662(e)(2), renumbered section 673c of this title as this section. Subsecs. (a), (b). Pub. L. 103–337, § 1675(c)(3), sub- stituted ‘‘12301, 12302, or 12304’’ for ‘‘672, 673, or 673b’’. 1984—Subsec. (b)(1). Pub. L. 98–525 inserted ‘‘of this title’’ after ‘‘673b’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title. Executive Documents EX. ORD. NO. 12728. DELEGATING PRESIDENT’S AUTHORITY TO SUSPEND ANY PROVISION OF LAW RELATING TO PRO- MOTION, RETIREMENT, OR SEPARATION OF MEMBERS OF ARMED FORCES Ex. Ord. No. 12728, Aug. 22, 1990, 55 F.R. 35029, as amended by Ex. Ord. No. 13286, § 38, Feb. 28, 2003, 68 F.R. 10626, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 673c [now 12305] of title 10 of the United States Code and section 301 of title 3 of the United States Code, I hereby order: