10 U.S.C. § 123 — Authority to suspend officer personnel

Page 138 TITLE 10—ARMED FORCES § 123 Pub. L. 112–81, div. A, title X, § 1068, Dec. 31, 2011, 125 Stat. 1589; Pub. L. 113–66, div. A, title X, § 1081(a), Dec. 26, 2013, 127 Stat. 871; Pub. L. 115–91, div. A, title X, § 1081(a)(3), Dec. 12, 2017, 131 Stat. 1594; Pub. L. 117–81, div. A, title X, § 1062(a), Dec. 27, 2021, 135 Stat. 1909.) Editorial Notes AMENDMENTS 2021—Subsec. (c). Pub. L. 117–81 added subsec. (c). 2017—Subsec. (a). Pub. L. 115–91 substituted ‘‘acting through the Assistant to the Secretary of Defense for Public Affairs’’ for ‘‘acting through the Office of the Assistant Secretary of Defense for Public Affairs’’ in introductory provisions. 2013—Subsec. (a). Pub. L. 113–66 amended subsec. (a) generally. Prior to amendment, text read as follows: ‘‘The Secretary of Defense shall ensure that each re- port described in subsection (b) is ‘‘(1) made available to the public, upon request sub- mitted on or after the date on which such report is submitted to Congress, through the Office of the As- sistant Secretary of Defense for Public Affairs; and ‘‘(2) to the maximum extent practicable, trans- mitted in an electronic format.’’ 2011—Subsec. (a). Pub. L. 112–81 substituted pars. (1) and (2) for ‘‘made available to the public, upon request submitted on or after the date on which such report is submitted to Congress, through the Office of the Assist- ant Secretary of Defense for Public Affairs.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 117–81, div. A, title X, § 1062(b), Dec. 27, 2021, 135 Stat. 1909, provided that: ‘‘Subsection (c) of section 122a of title 10, United States Code, as added by sub- section (a), shall apply beginning on the date that is one year after the date of the enactment of this Act [Dec. 27, 2021].’’ EFFECTIVE DATE OF 2013 AMENDMENT Pub. L. 113–66, div. A, title X, § 1081(b), Dec. 26, 2013, 127 Stat. 871, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply with respect to reports submitted to Congress after the date of the enactment of this Act [Dec. 26, 2013].’’ EFFECTIVE DATE Pub. L. 111–383, div. A, title X, § 1061(b), Jan. 7, 2011, 124 Stat. 4362, provided that: ‘‘Section 122a of title 10, United States Code (as added by subsection (a)), shall take effect 90 days after the date of the enactment of this Act [Jan. 7, 2011], and shall apply with respect to reports that are required by law to be submitted to Congress on or after that date.’’ PUBLIC AVAILABILITY OF DEPARTMENT OF DEFENSE LEGISLATIVE PROPOSALS Pub. L. 116–283, div. A, title X, § 1059, Jan. 1, 2021, 134 Stat. 3857, provided that: ‘‘Not later than 21 days after the transmission to the Committee on Armed Services of the Senate or the Committee on Armed Services of the House of Representatives of any official Depart- ment of Defense legislative proposal, the Secretary of Defense shall make publicly available on a website of the Department such legislative proposal, including any bill text and section-by-section analysis associated with the proposal.’’ PUBLIC AVAILABILITY OF TOP-LINE NUMBERS OF DEPLOYED MEMBERS OF THE ARMED FORCES Pub. L. 115–232, div. A, title V, § 595, Aug. 13, 2018, 132 Stat. 1789, provided that: ‘‘(a) IN GENERAL.—Except as provided in subsection (b), the Secretary of Defense shall make publicly avail- able, on a quarterly basis, on a website of the Depart- ment the top-line numbers of members of the Armed Forces deployed for each country as of the date of the submittal of the report and the total number of mem- bers of the Armed Forces so deployed during the quar- ter covered by the report. ‘‘(b) WAIVER.— ‘‘(1) IN GENERAL.—The Secretary may waive the re- quirement under subsection (a) in the case of a sen- sitive military operation if— ‘‘(A) the Secretary determines the public disclo- sure of the number of deployed members of the Armed Forces could reasonably be expected to pro- vide an operational military advantage to an adver- sary; or ‘‘(B) members of the Armed Forces are deployed for a period that does not exceed 30 days. ‘‘(2) NOTICE.— If the Secretary issues a waiver under this subsection, the Secretary shall submit to the Committees on Armed Services of the Senate and House of Representatives— ‘‘(A) a notice of the waiver; and ‘‘(B) the reasons for the determination to issue the waiver. ‘‘(c) SENSITIVE MILITARY OPERATION DEFINED.—The term ‘sensitive military operation’ has the meaning given that term in section 130f(d) of title 10, United States Code.’’ COST OF WARS Pub. L. 114–328, div. A, title X, § 1090, Dec. 23, 2016, 130 Stat. 2428, as amended by Pub. L. 117–263, div. A, title X, § 1085, Dec. 23, 2022, 136 Stat. 2800, provided that: ‘‘(a) PUBLICATION OF INFORMATION.—The Secretary of Defense, in consultation with the Commissioner of the Internal Revenue Service and the Director of the Bu- reau of Economic Analysis, shall post on the public Internet website of the Department of Defense the costs to each United States taxpayer of any contin- gency operation conducted by the United States Armed Forces on or after September 18, 2001. ‘‘(b) DISPLAY OF INFORMATION.—The information re- quired to be posted under subsection (a) shall, to the extent practicable— ‘‘(1) be posted directly on the website of the Depart- ment of Defense, in an accessible and clear format; ‘‘(2) include corresponding documentation as links or attachments; and ‘‘(3) include, for each contingency operation, a list of countries where the contingency operation has taken place. ‘‘(c) UPDATES.—The Secretary shall ensure that all the information required to be posted under subsection (a) is updated by not later than 90 days after the last day of each fiscal year. ‘‘(d) CONTINGENCY OPERATION DEFINED.—In this sec- tion, the term ‘contingency operation’ has the meaning given such term in section 101(a)(13) of title 10, United States Code.’’ § 123. Authority to suspend officer personnel laws during war or national emergency (a) In time of war, or of national emergency declared by Congress or the President after No- vember 30, 1980, the President may suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separa- tion of commissioned officers of the Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard Reserve. So long as such war or na- tional emergency continues, any such suspen- sion may be extended by the President. (b) Any such suspension shall, if not sooner ended, end on the last day of the two-year period beginning on the date on which the suspension (or the last extension thereof) takes effect or on the last day of the one-year period beginning on Page 139 TITLE 10—ARMED FORCES § 123 the date of the termination of the war or na- tional emergency, whichever occurs first. With respect to the end of any such suspension, the preceding sentence supersedes the provisions of title II of the National Emergencies Act (50 U.S.C. 1621–1622) which provide that powers or authorities exercised by reason of a national emergency shall cease to be exercised after the date of the termination of the emergency. (c) If a provision of law pertaining to the pro- motion of reserve officers is suspended under this section and if the Secretary of Defense sub- mits to Congress proposed legislation to adjust the grades and dates of rank of reserve commis- sioned officers other than commissioned war- rant officers, such proposed legislation shall, so far as practicable, be the same as that rec- ommended for adjusting the grades and dates of rank of officers of the regular component of the armed force concerned. (d) 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. 85–861, § 1(2)(A), Sept. 2, 1958, 72 Stat. 1437; amended Pub. L. 86–559, § 1(1), June 30, 1960, 74 Stat. 264; Pub. L. 89–718, § 1, Nov. 2, 1966, 80 Stat. 1115; Pub. L. 90–130, § 1(1), Nov. 8, 1967, 81 Stat. 374; Pub. L. 96–513, title V, §§ 501(3), 511(1), Dec. 12, 1980, 94 Stat. 2907, 2920; Pub. L. 97–22, § 10(b)(1), July 10, 1981, 95 Stat. 137; Pub. L. 103–337, div. A, title XVI, § 1622(a), Oct. 5, 1994, 108 Stat. 2961; Pub. L. 104–106, div. A, title XV, § 1501(c)(4), Feb. 10, 1996, 110 Stat. 498; Pub. L. 107–107, div. A, title V, § 508(b), Dec. 28, 2001, 115 Stat. 1090; Pub. L. 116–283, div. A, title IX, § 924(b)(2)(A)(i), Jan. 1, 2021, 134 Stat. 3821.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 123 .......... 50:1199 (less applicability to National Guard). Sept. 3, 1954, ch. 1257, § 209 (less applicability to National Guard), 68 Stat. 1152. In subsection (b), the words ‘‘the same as’’ are sub- stituted for the word ‘‘comparable’’, since any nec- essary differences in the recommended legislation be- tween Reserves and Regulars are fully taken account of in the words ‘‘So far as practicable’’. Editorial Notes REFERENCES IN TEXT The National Emergencies Act, referred to in subsec. (b), is Pub. L. 94–412, Sept. 14, 1976, 90 Stat. 1255. Title II of the Act is classified generally to subchapter II (§ 1621 et seq.) of chapter 34 of Title 50, War and Na- tional Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 644 of this title prior to repeal by Pub. L. 103–337, § 1622(b). AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283 substituted ‘‘Marine Corps, Space Force,’’ for ‘‘Marine Corps,’’. 2001—Subsec. (d). Pub. L. 107–107 added subsec. (d). 1996—Subsec. (a). Pub. L. 104–106 struck out ‘‘281, 592, 1002, 1005, 1006, 1007, 1374, 3217, 3218, 3219, 3220, 3352(a) (last sentence),’’ after ‘‘armed force:’’, ‘‘5414, 5457, 5458, 5506,’’ after ‘‘3855,’’, and ‘‘8217, 8218, 8219,’’ after ‘‘6410,’’ and substituted ‘‘8855, 10214, 12003, 12004, 12005, 12007, 12202, 12213(a) (second sentence), 12642, 12645, 12646, 12647, 12771, 12772, and 12773’’ for ‘‘and 8855’’. 1994—Pub. L. 103–337 substituted ‘‘Authority to sus- pend officer personnel laws during war or national emergency’’ for ‘‘Suspension of certain provisions of law relating to reserve commissioned officers’’ as sec- tion catchline and amended text generally, sub- stituting subsecs. (a) to (c) for former subsecs. (a) and (b). 1981—Subsec. (a). Pub. L. 97–22 struck out references to sections 3494 and 8494. 1980—Subsec. (a). Pub. L. 96–513 struck out references to sections 3571, 3847, 5867, 8370, 8571, and 8847. 1967—Subsec. (a). Pub. L. 90–130 struck out reference to section 3391. 1966—Subsec. (a). Pub. L. 89–718 struck out reference to section 5907. 1960—Subsec. (a). Pub. L. 86–559 inserted references to sections 281, 3855, and 8855 and struck out references to sections 3841, 3842, 3849, 8841, 8842, and 8849. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–106, div. A, title XV, § 1501(c), Feb. 10, 1996, 110 Stat. 498, provided that the amendment made by that section is effective as of Dec. 1, 1994, and as if in- cluded as an amendment made by the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as originally enacted. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103–337, set out as an Ef- fective Date note under section 10001 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Pub. L. 97–22, § 10(b), July 10, 1981, 95 Stat. 137, pro- vided that the amendment made by that section is ef- fective Sept. 15, 1981. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by section 501(3) of Pub. L. 96–513, strik- ing out references to sections 3571, 5867, and 8571, effec- tive Sept. 15, 1981, and amendment by section 511(1) of Pub. L. 96–513, striking out references to sections 3847, 8370, and 8847, effective Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. Executive Documents DELEGATION OF FUNCTIONS Functions of President under this section delegated to Secretary of Defense, see section 1(11) of Ex. Ord. No. Page 140 TITLE 10—ARMED FORCES § 123a 11390, Jan. 22, 1968, 33 F.R. 841, set out as a note under section 301 of Title 3, The President. DELEGATION OF AUTHORITY Authority of President under this section as invoked by sections 2 and 3 of Ex. Ord. No. 13223, Sept. 14, 2001, 66 F.R. 48201, as amended, delegated to Secretary of De- fense by section 4 of Ex. Ord. No. 13223, and authority of President under this section as invoked by section 2 of Ex. Ord. No. 13223 delegated to Secretary of Home- land Security by section 5 of Ex. Ord. No. 13223, as amended, set out as a note under section 12302 of this title. § 123a. Suspension of end-strength and other strength limitations in time of war or na- tional emergency (a) DURING WAR OR NATIONAL EMERGENCY.—(1) If at the end of any fiscal year there is in effect a war or national emergency, the President may waive any statutory end strength with respect to that fiscal year. Any such waiver may be issued only for a statutory end strength that is prescribed by law before the waiver is issued. (2) When a designation of a major disaster 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)) is in effect, the President may waive any statutory limit that would otherwise apply during the pe- riod of the designation on the number of mem- bers of a reserve component or the Space Force who are authorized to be on active duty under subparagraph (A) or (B) of section 115(b)(1) of this title, if the President determines the waiver is necessary to provide assistance in responding to the major disaster or emergency. (b) TERMINATION OF WAIVER.—(1) Upon the ter- mination of a war or national emergency with respect to which the President has exercised the authority provided by subsection (a)(1), the President may defer the effectiveness of any statutory end strength with respect to the fiscal year during which the termination occurs. Any such deferral may not extend beyond the last day of the sixth month beginning after the date of such termination. (2) A waiver granted under subsection (a)(2) shall terminate not later than 90 days after the date on which the designation of the major dis- aster or emergency that was the basis for the waiver expires. (c) STATUTORY END STRENGTH.—In this sec- tion, the term ‘‘statutory end strength’’ means any end-strength limitation with respect to a fiscal year that is prescribed by law for any military or civilian component of the armed forces or of the Department of Defense. (Added Pub. L. 101–510, div. A, title XIV, § 1483(b)(1), Nov. 5, 1990, 104 Stat. 1715; amended Pub. L. 107–107, div. A, title IV, § 421(b), Dec. 28, 2001, 115 Stat. 1076; Pub. L. 110–417, [div. A], title IV, § 416(a)–(c)(1), Oct. 14, 2008, 122 Stat. 4430; Pub. L. 118–31, div. A, title XVII, § 1722(a)(2), Dec. 22, 2023, 137 Stat. 667.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 115(b)(4) of this title, prior to repeal by Pub. L. 101–510, § 1483(a). AMENDMENTS 2023—Subsec. (a)(2). Pub. L. 118–31 inserted ‘‘or the Space Force’’ after ‘‘a reserve component’’. 2008—Pub. L. 110–417 in section catchline substituted ‘‘Suspension of end-strength and other strength limita- tions in time of war or national emergency’’ for ‘‘Sus- pension of end-strength limitations in time of war or national emergency’’, in subsec. (a) designated existing provisions as par. (1) and added par. (2), and in subsec. (b) substituted ‘‘Termination of Waiver’’ for ‘‘Upon Termination of War or National Emergency’’ in head- ing, designated existing provisions as par. (1), sub- stituted ‘‘subsection (a)(1)’’ for ‘‘subsection (a)’’, and added par. (2). 2001—Pub. L. 107–107 amended text generally. Prior to amendment, text read as follows: ‘‘If at the end of any fiscal year there is in effect a war or national emer- gency, the President may defer the effectiveness of any end-strength limitation with respect to that fiscal year prescribed by law for any military or civilian compo- nent of the armed forces or of the Department of De- fense. Any such deferral may not extend beyond No- vember 30 of the following fiscal year.’’ Executive Documents DELEGATION OF AUTHORITY Authority of President under this section as invoked by sections 2 and 3 of Ex. Ord. No. 13223, Sept. 14, 2001, 66 F.R. 48201, as amended, delegated to Secretary of De- fense by section 4 of Ex. Ord. No. 13223, and authority of President under this section as invoked by section 2 of Ex. Ord. No. 13223 delegated to Secretary of Home- land Security by section 5 of Ex. Ord. No. 13223, as amended, set out as a note under section 12302 of this title. § 123b. Forces stationed abroad: limitation on number (a) END-STRENGTH LIMITATION.—No funds ap- propriated to the Department of Defense may be used to support a strength level of members of the armed forces assigned to permanent duty ashore in nations outside the United States at the end of any fiscal year at a level in excess of 203,000. (b) EXCEPTION FOR WARTIME.—Subsection (a) does not apply in the event of a declaration of war or an armed attack on any member nation of the North Atlantic Treaty Organization, Japan, the Republic of Korea, or any other ally of the United States. (c) PRESIDENTIAL WAIVER.—The President may waive the operation of subsection (a) if the President declares an emergency. The President shall immediately notify Congress of any such waiver. (Added Pub. L. 103–337, div. A, title XIII, § 1312(a)(1), Oct. 5, 1994, 108 Stat. 2894.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in Pub. L. 102–484, div. A, title XIII, § 1302, Oct. 23, 1992, 106 Stat. 2545, which was set out as a note under section 113 of this title, prior to repeal by Pub. L. 103–337, § 1312(c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 103–337, div. A, title XIII, § 1312(b), Oct. 5, 1994, 108 Stat. 2894, provided that: ‘‘Section 123b of title 10,