10 U.S.C. § 638 — Selective early retirement

Page 624 TITLE 10—ARMED FORCES § 637a Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. TRANSITION PROVISIONS UNDER DEFENSE OFFICER PERSONNEL MANAGEMENT ACT For provisions to prevent extinction or premature termination of rights, duties, penalties, or proceedings that existed or were begun prior to the effective date of Pub. L. 96–513 and otherwise to allow for an orderly transition to the system of officer personnel manage- ment put in place under Pub. L. 96–513, see section 601 et seq. of Pub. L. 96–513, set out as a note under section 611 of this title. § 637a. Continuation on active duty: officers in certain military specialties and career tracks (a) IN GENERAL.—The Secretary of the mili- tary department concerned may authorize an of- ficer in a grade above grade O–2 to remain on ac- tive duty after the date otherwise provided for the separation or retirement of the officer in section 632, 633, 634, 635, or 636 of this title, as ap- plicable, if the officer has a military occupa- tional specialty, rating, or specialty code in a military specialty designated pursuant to sub- section (b). (b) MILITARY SPECIALTIES.—Each Secretary of a military department shall designate the mili- tary specialties in which a military occupa- tional specialty, rating, or specialty code, as ap- plicable, assigned to members of the armed forces under the jurisdiction of such Secretary authorizes the members to be eligible for con- tinuation on active duty as provided in sub- section (a). (c) DURATION OF CONTINUATION.—An officer continued on active duty pursuant to this sec- tion shall, if not earlier retired, be retired on the first day of the month after the month in which the officer completes 40 years of active service. (d) REGULATIONS.—The Secretaries of the mili- tary departments shall carry out this section in accordance with regulations prescribed by the Secretary of Defense. The regulations shall specify the criteria to be used by the Secretaries of the military departments in designating mili- tary specialties for purposes of subsection (b). (Added Pub. L. 114–328, div. A, title V, § 505(a)(1), Dec. 23, 2016, 130 Stat. 2107; amended Pub. L. 115–232, div. A, title V, § 506, title X, § 1081(a)(8), Aug. 13, 2018, 132 Stat. 1743, 1983; Pub. L. 116–92, div. A, title V, § 504, Dec. 20, 2019, 133 Stat. 1345.) Editorial Notes AMENDMENTS 2019—Subsec. (a). Pub. L. 116–92 inserted ‘‘separation or’’ after ‘‘provided for the’’. 2018—Subsec. (a). Pub. L. 115–232, § 506, substituted ‘‘grade O–2’’ for ‘‘grade O–4’’ and inserted ‘‘632,’’ before ‘‘633,’’. Subsec. (d). Pub. L. 115–232, § 1081(a)(8), substituted ‘‘specialties’’ for ‘‘specialities’’. § 638. Selective early retirement (a)(1) A regular officer on the active-duty list of the Army, Navy, Air Force, Marine Corps, or Space Force may be considered for selective early retirement by a selection board convened under section 611(b) of this title if the officer is described in any of subparagraphs (A) through (D) as follows: (A) An officer holding the regular grade of lieutenant colonel or commander who has failed of selection for promotion to the grade of colonel or, in the case of an officer of the Navy, captain two or more times and whose name is not on a list of officers recommended for promotion. (B) An officer holding the regular grade of colonel or, in the case of an officer of the Navy, captain who has served at least four years of active duty in that grade and whose name is not on a list of officers recommended for promotion. (C) An officer holding the regular grade of brigadier general or rear admiral (lower half) who has served at least three and one-half years of active duty in that grade and whose name is not on a list of officers recommended for promotion. (D) An officer holding the regular grade of major general or rear admiral who has served at least three and one-half years of active duty in that grade. (2) The Secretary of the military department concerned shall specify the number of officers described in paragraphs (1)(A) and (1)(B) which a selection board convened under section 611(b) of this title may recommend for early retirement. Such number may not be more than 30 percent of the number of officers considered in each grade in each competitive category. (3) A regular officer on the active-duty list of the Army, Navy, Air Force, Marine Corps, or Space Force may also be considered for early re- tirement under the circumstances prescribed in section 638a of this title. (b)(1)(A) An officer in a grade below brigadier general or rear admiral (lower half) who is rec- ommended for early retirement under this sec- tion or section 638a of this title and whose early retirement is approved by the Secretary con- cerned shall be retired, under any provision of law under which he is eligible to retire, on the date requested by him and approved by the Sec- retary concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the Sec- retary concerned approves the report of the board which recommended the officer for early retirement. (B) If an officer described in subparagraph (A) is not eligible for retirement under any provi- sion of law, the officer shall be retained on ac- tive duty until the officer is qualified for retire- ment under section 7311, 8323, or 9311 of this title, and then be retired under that section, un- less the officer is sooner retired or discharged under some other provision of law, with such re- tirement under that section occurring not later than the later of the following: (i) The first day of the month beginning after the month in which the officer becomes qualified for retirement under that section. (ii) The first day of the seventh calendar month beginning after the month in which the Secretary concerned approves the report of the board which recommended the officer for early retirement. Page 625 TITLE 10—ARMED FORCES § 638 (2) An officer who holds the regular grade of brigadier general, major general, rear admiral (lower half), or rear admiral who is rec- ommended for early retirement under this sec- tion and whose early retirement is approved by the Secretary concerned shall be retired, under any provision of law under which he is eligible to retire, on the date requested by him and ap- proved by the Secretary concerned, which date shall be not later than the first day of the tenth calendar month beginning after the month in which the Secretary concerned approved the re- port of the board which recommended the officer for early retirement. (3)(A) The Secretary concerned may defer for not more than three months the retirement of an officer otherwise approved for early retire- ment under this section or section 638a of this title in order to prevent a personal hardship to the officer or for other humanitarian reasons. Any such deferral shall be made on a case-by- case basis considering the circumstances of the case of the particular officer concerned. The au- thority of the Secretary to grant such a deferral may not be delegated. (B) An officer recommended for early retire- ment under paragraph (1)(A) or section 638a of this title, if approved for deferral under subpara- graph (A), shall be retired on the date requested by the officer, and approved by the Secretary concerned, which date shall be not later than the first day of the tenth calendar month begin- ning after the month in which the Secretary concerned approves the report of the board which recommended the officer for early retire- ment. (C) The Secretary concerned may defer the re- tirement of an officer otherwise approved for early retirement under paragraph (1)(B), but in no case later than the first day of the tenth cal- endar month beginning after the month in which the Secretary concerned approves the report of the board which recommended the officer for early retirement. (D) An officer recommended for early retire- ment under paragraph (2), if approved for defer- ral under subparagraph (A), shall be retired on the date requested by the officer, and approved by the Secretary concerned, which date shall be not later than the first day of the thirteenth calendar month beginning after the month in which the Secretary concerned approves the re- port of the board which recommended the officer for early retirement. (c) So long as an officer in a grade below briga- dier general or rear admiral (lower half) holds the same grade, he may not be considered for early retirement under this section more than once in any five-year period. (d) The retirement of an officer pursuant to this section shall be considered to be an involun- tary retirement for purposes of any other provi- sion of law. (e)(1) The Secretary of Defense shall prescribe regulations for the administration of this sec- tion. (2)(A) Such regulations shall require that when the Secretary of the military department concerned submits a list of officers to a selec- tion board convened under section 611(b) of this title to consider officers for selection for early retirement under this section, such list (except as provided in subparagraph (B)) shall include each officer on the active-duty list in the same grade and competitive category whose position on the active-duty list is between that of the most junior officer in that grade and competi- tive category whose name is submitted to the board and that of the most senior officer in that grade and competitive category whose name is submitted to the board. (B) A list under subparagraph (A) may not in- clude an officer in that grade and competitive category (i) who has been approved for vol- untary retirement under section 7311, 8323, or 9311 of this title, or (ii) who is to be involun- tarily retired under any provision of law during the fiscal year in which the selection board is convened or during the following fiscal year. (C) An officer not considered by a selection board convened under section 611(b) of this title by reason of subparagraph (B) shall be retired on the date approved for the retirement of that of- ficer as of the convening date of such selection board unless the Secretary concerned approves a modification of such date in order to prevent a personal hardship for the officer or for other hu- manitarian reasons. (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, 94 Stat. 2864; amended Pub. L. 97–22, § 4(f), July 10, 1981, 95 Stat. 127; Pub. L. 97–86, title IV, § 405(b)(1), Dec. 1, 1981, 95 Stat. 1105; Pub. L. 99–145, title V, § 514(b)(1), Nov. 8, 1985, 99 Stat. 628; Pub. L. 100–456, div. A, title V, § 504, Sept. 29, 1988, 102 Stat. 1967; Pub. L. 101–510, div. A, title V, § 521(b)(2), Nov. 5, 1990, 104 Stat. 1561; Pub. L. 102–190, div. A, title V, § 503(a), Dec. 5, 1991, 105 Stat. 1355; Pub. L. 103–160, div. A, title V, § 506, Nov. 30, 1993, 107 Stat. 1646; Pub. L. 104–106, div. A, title V, § 504(b), Feb. 10, 1996, 110 Stat. 295; Pub. L. 113–291, div. A, title V, § 502(b), Dec. 19, 2014, 128 Stat. 3354; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–283, div. A, title IX, § 924(b)(3)(L), Jan. 1, 2021, 134 Stat. 3821.) Editorial Notes AMENDMENTS 2021—Subsec. (a)(1), (3). Pub. L. 116–283 substituted ‘‘Marine Corps, or Space Force’’ for ‘‘or Marine Corps’’ in introductory provisions of par. (1) and in par. (3). 2018—Subsecs. (b)(1)(B), (e)(2)(B). Pub. L. 115–232 sub- stituted ‘‘section 7311, 8323, or 9311’’ for ‘‘section 3911, 6323, or 8911’’. 2014—Subsec. (b)(1). Pub. L. 113–291, § 502(b)(1), added par. (1) and struck out former par. (1) which read as fol- lows: ‘‘An officer in a grade below brigadier general or rear admiral (lower half) who is recommended for early retirement under this section or section 638a of this title and whose early retirement is approved by the Secretary concerned shall— ‘‘(A) be retired, under any provision of law under which he is eligible to retire, on the date requested by him and approved by the Secretary concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the Secretary concerned approves the report of the board which recommended the officer for early retirement; or ‘‘(B) if the officer is not eligible for retirement under any provision of law, be retained on active duty until he is qualified for retirement under section 3911, 6323, or 8911 of this title, and then be retired Page 626 TITLE 10—ARMED FORCES § 638a under that section, unless he is sooner retired or dis- charged under some other provision of law.’’ Subsec. (b)(3). Pub. L. 113–291, § 502(b)(2), designated existing provisions as subpar. (A), substituted ‘‘three months’’ for ‘‘90 days’’, and added subpars. (B) to (D). 1996—Subsec. (b)(3). Pub. L. 104–106 added par. (3). 1993—Subsec. (e)(2)(B). Pub. L. 103–160 inserted ‘‘(i)’’ after ‘‘grade and competitive category’’, inserted ‘‘(ii)’’ after ‘‘of this title, or’’, and struck out comma after ‘‘any provision of law’’. 1991—Subsec. (e). Pub. L. 102–190 designated existing provisions as pars. (1) and (2)(A), in par. (2)(A) inserted ‘‘(except as provided in subparagraph (B))’’ after ‘‘under this section, such list’’, and added subpars. (B) and (C). 1990—Subsec. (a)(3). Pub. L. 101–510, § 521(b)(2)(A), added par. (3). Subsec. (b)(1). Pub. L. 101–510, § 521(b)(2)(B), inserted ‘‘or section 638a of this title’’ after ‘‘under this sec- tion’’. 1988—Subsec. (a). Pub. L. 100–456 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘A regular officer on the active-duty list of the Army, Navy, Air Force, or Marine Corps— ‘‘(1) who holds the regular grade of lieutenant colo- nel or commander and has failed of selection for pro- motion to the grade of colonel or, in the case of an officer of the Navy, captain two or more times and whose name is not on a list of officers recommended for promotion; ‘‘(2) who holds the regular grade of colonel or, in the case of an officer of the Navy, captain and has served at least four years of active duty in that grade and whose name is not on a list of officers rec- ommended for promotion; ‘‘(3) who holds the regular grade of brigadier gen- eral or rear admiral (lower half) and has served at least three and one-half years of active duty in that grade and whose name is not on a list of officers rec- ommended for promotion; or ‘‘(4) who holds the regular grade of major general or rear admiral and has served at least three and one- half years of active duty in that grade, may be considered for early retirement by a selection board convened under section 611(b) of this title. The Secretary of the military department concerned shall specify the number of officers described in clauses (1) and (2) which such a board may recommend for early retirement, but such number may not be more than 30 percent of the number of officers considered in each grade in each competitive category.’’ 1985—Subsecs. (a)(3), (b), (c). Pub. L. 99–145 sub- stituted ‘‘rear admiral (lower half)’’ for ‘‘commodore’’ wherever appearing. 1981—Subsec. (a)(3). Pub. L. 97–86 substituted ‘‘com- modore’’ for ‘‘commodore admiral’’. Subsec. (a)(3), (4). Pub. L. 97–22 substituted ‘‘three and one-half years of active duty’’ for ‘‘four years of ac- tive duty’’. Subsecs. (b), (c). Pub. L. 97–86 substituted ‘‘com- modore’’ for ‘‘commodore admiral’’ wherever appear- ing. 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 1981 AMENDMENT Amendment by Pub. L. 97–86 effective Sept. 15, 1981, see section 405(f) of Pub. L. 97–86, set out as a note under section 101 of this title. EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- tion 101 of this title. § 638a. Modification to rules for continuation on active duty; enhanced authority for selective early retirement and early discharges (a)(1) The Secretary of Defense may authorize the Secretary of a military department to take any of the actions set forth in subsection (b) with respect to officers of an armed force under the jurisdiction of that Secretary. (2) Any authority provided to the Secretary of a military department under paragraph (1) shall expire on the date specified by the Secretary of Defense, but such expiration date may not be later than December 31, 2025. (b) Actions which the Secretary of a military department may take with respect to officers of an armed force when authorized to do so under subsection (a) are the following: (1) Shortening the period of the continuation on active duty established under section 637 of this title for a regular officer who is serving on active duty pursuant to a selection under that section for continuation on active duty. (2) Providing that regular officers on the ac- tive-duty list may be considered for early re- tirement by a selection board convened under section 611(b) of this title in the case of offi- cers described in any of subparagraphs (A) through (C) as follows: (A) Officers in the regular grade of lieuten- ant colonel or commander who have failed of selection for promotion at least one time and whose names are not on a list of officers recommended for promotion. (B) Officers in the regular grade of colonel or, in the case of the Navy, captain who have served on active duty in that grade for at least two years and whose names are not on a list of officers recommended for pro- motion. (C) Officers, other than those described in subparagraphs (A) and (B), holding a regular grade below the grade of colonel, or in the case of the Navy, captain, who are eligible for retirement under section 7311, 8323, or 9311 of this title, or who after two additional years or less of active service would be eligi- ble for retirement under one of those sec- tions and whose names are not on a list of officers recommended for promotion. (3) Convening selection boards under section 611(b) of this title to consider for discharge regular officers on the active-duty list in a grade below lieutenant colonel or com- mander— (A) who have served at least one year of active duty in the grade currently held; (B) whose names are not on a list of offi- cers recommended for promotion; and (C) who are not eligible to be retired under any provision of law (other than by reason of eligibility pursuant to section 4403 of the Na- tional Defense Authorization Act for Fiscal Year 1993) and are not within two years of becoming so eligible. (4) Convening selection boards under section 611(b) of this title to consider for early retire-