
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 1048(h)(2)]
[CITE: 10USC12681]

 
                         TITLE 10--ARMED FORCES
 
                     Subtitle E--Reserve Components
 
                      PART II--PERSONNEL GENERALLY
 
                        CHAPTER 1221--SEPARATION
 
Sec. 12681. Reserves: discharge authority

    Subject to other provisions of this title, reserve commissioned 
officers may be discharged at the pleasure of the President. Other 
Reserves may be discharged under regulations prescribed by the Secretary 
concerned.

(Added Pub. L. 103-337, div. A, title XVI, Sec. 1662(i)(1), Oct. 5, 
1994, 108 Stat. 2997.)


                            Prior Provisions

    Provisions similar to those in this section were contained in 
section 1162(a) of this title, prior to repeal by Pub. L. 103-337, 
Sec. 1662(i)(2).


                             Effective Date

    Chapter effective Dec. 1, 1994, except as otherwise provided, see 
section 1691 of Pub. L. 103-337, set out as a note under section 10001 
of this title.


Implementation of Agreement on Restructuring of Army National Guard and 
                              Army Reserve

    Pub. L. 103-335, title VIII, Sec. 8129, Sept. 30, 1994, 108 Stat. 
2652, provided that:
    ``(a) Finding.--Congress finds that the implementation of the off-
site agreement may result in the loss to the Armed Forces of military 
personnel who have significant military experience and expertise.
    ``(b) Reassignment of Members.--(1) To the maximum extent 
practicable, the Secretary of the Army shall ensure that members of the 
Armed Forces who would otherwise be separated from service as a result 
of the deactivation of military units of the Army National Guard and the 
Army Reserve under the off-site agreement be reassigned instead to units 
that are not being deactivated.
    ``(2) The reassignment of a member under paragraph (1) shall not 
affect the grade or rank in grade of the member.
    ``(c) Reports.--Not later than April 15 and October 15 of each 
calendar year while the off-site agreement is in effect, the Secretary 
of the Army shall submit to the congressional defense committees a semi-
annual report on the number of members of the Armed Forces who were 
reassigned under subsection (b)(1) during the preceding six months.
    ``(d) Definitions.--In this section:
        ``(1) The term `congressional defense committees' means the 
    Committees on Armed Services and the Committees on Appropriations of 
    the Senate and the House of Representatives.
        ``(2) The term `off-site agreement' means the agreement on the 
    restructuring of the Army National Guard and the Army Reserve.''


                Guard and Reserve Transition Initiatives

    Pub. L. 104-208, div. A, title I, Sec. 101(b) [title VIII, 
Sec. 8050], Sept. 30, 1996, 110 Stat. 3009-71, 3009-99, provided that: 
``During the current fiscal year and hereafter, annual payments granted 
under the provisions of section 4416 of the National Defense 
Authorization Act for Fiscal Year 1993 (Public Law 102-484; 106 Stat. 
2714) [set out below] shall be made from appropriations in this Act 
[Pub. L. 104-208] which are available for the pay of reserve component 
personnel.''
    Similar provisions were contained in the following prior 
appropriation acts:
    Pub. L. 104-61, title VIII, Sec. 8061, Dec. 1, 1995, 109 Stat. 664.
    Pub. L. 103-335, title VIII, Sec. 8073, Sept. 30, 1994, 108 Stat. 
2635.
    Pub. L. 103-139, title VIII, Sec. 8087, Nov. 11, 1993, 107 Stat. 
1459.

    Pub. L. 102-484, div. D, title XLIV, subtitle B, Oct. 23, 1992, 106 
Stat. 2712, as amended by Pub. L. 103-35, title II, Sec. 202(a)(17), May 
31, 1993, 107 Stat. 102; Pub. L. 103-160, div. A, title V, 
Sec. 561(f)(1)-(3), Nov. 30, 1993, 107 Stat. 1667, 1668; Pub. L. 103-
337, div. A, title V, Sec. 518(a), (b), Oct. 5, 1994, 108 Stat. 2754; 
Pub. L. 104-106, div. A, title XV, Sec. 1501(d)(3), Feb. 10, 1996, 110 
Stat. 500; Pub. L. 105-261, div. A, title V, Sec. 561(l), (m), Oct. 17, 
1998, 112 Stat. 2026; Pub. L. 106-398, Sec. 1 [[div. A], title V, 
Sec. 571(l), (m)], Oct. 30, 2000, 114 Stat. 1654, 1654A-135, provided 
that:
``SEC. 4411. FORCE REDUCTION TRANSITION PERIOD DEFINED.
    ``In this subtitle [subtitle B (Secs. 4411-4422) of title XLIV of 
div. D of Pub. L. 102-484], the term `force reduction transition period' 
means the period beginning on October 1, 1991, and ending on December 
31, 2001.
``SEC. 4412. MEMBER OF SELECTED RESERVE DEFINED.
    ``In this subtitle, the term `member of the Selected Reserve' 
means--
        ``(1) a member of a unit in the Selected Reserve of the Ready 
    Reserve; and
        ``(2) a Reserve designated pursuant to section 268(b) [see 
    10143(a)] of title 10, United States Code, who is assigned to an 
    authorized position the performance of the duties of which qualify 
    the member for basic pay or compensation for inactive-duty training 
    or both.
``SEC. 4413. RESTRICTION ON RESERVE FORCE REDUCTION.
    ``(a) In General.--During the force reduction transition period, a 
member of the Selected Reserve may not be involuntarily discharged from 
a reserve component of the Armed Forces, or involuntarily transferred 
from the Selected Reserve, before the Secretary of Defense has 
prescribed and implemented regulations that govern the treatment of 
members of the Selected Reserve assigned to such units and members of 
the Selected Reserve that are being subjected to such actions and a copy 
of such regulations has been transmitted to the Committees on Armed 
Services of the Senate and House of Representatives.
    ``(b) Savings Provision.--Subsection (a) shall not apply to actions 
completed before the date of the enactment of this Act [Oct. 23, 1992].
``SEC. 4414. TRANSITION PLAN REQUIREMENTS.
    ``(a) Purpose of Plan.--The purpose of the regulations referred to 
in section 4413 shall be to ensure that the members of the Selected 
Reserve are treated with fairness, with respect for their service to 
their country, and with attention to the adverse personal consequences 
of Selected Reserve unit inactivations, involuntary discharges of such 
members from the reserve components of the Armed Forces, and involuntary 
transfers of such members from the Selected Reserve.
    ``(b) Scope of Plan.--The regulations shall include--
        ``(1) such provisions as are necessary to implement the 
    provisions of this subtitle and the amendments made by this 
    subtitle; and
        ``(2) such other policies and procedures for the recruitment of 
    personnel for service in the Selected Reserve of the Ready Reserve, 
    and for the reassignment, retraining, separation, and retirement of 
    members of the Selected Reserve, as are appropriate for satisfying 
    the needs of the Selected Reserve together with the purpose set out 
    in subsection (a).
    ``(c) Minimum Requirements for Plan.--The regulations shall include 
the following:
        ``(1) The giving of a priority for enrollment in, or 
    reassignment to, Selected Reserve units not being inactivated to--
            ``(A) personnel being separated from active-duty or full-
        time National Guard duty; and
            ``(B) members of the Selected Reserve whose units are 
        inactivated.
        ``(2) The giving of a priority to such personnel for transfer 
    among the reserve components of the Armed Forces in order to 
    facilitate reassignment to such units.
        ``(3) A requirement that the Secretaries of the military 
    departments take diligent actions to ensure that members of the 
    reserve components of the Armed Forces are informed in easily 
    understandable terms of the rights and benefits conferred upon such 
    personnel by this subtitle, by the amendments made by this subtitle, 
    and by such regulations.
        ``(4) Such other protections, preferences, and benefits as the 
    Secretary of Defense considers appropriate.
    ``(d) Uniform Applicability.--The regulations shall apply uniformly 
to the Army, Navy, Air Force, and Marine Corps.
``SEC. 4415. INAPPLICABILITY TO CERTAIN DISCHARGES AND TRANSFERS.
    ``The protections, preferences, and benefits provided for in 
regulations prescribed in accordance with this subtitle do not apply 
with respect to a member of the Selected Reserve who is discharged from 
a reserve component of the Armed Forces or is transferred from the 
Selected Reserve to another category of the Ready Reserve, to the 
Standby Reserve, or to the Retired Reserve--
        ``(1) at the request of the member unless such request was made 
    and approved under a provision of this subtitle or section 12731a of 
    title 10, United States Code (as added by section 4417);
        ``(2) because the member no longer meets the qualifications for 
    membership in the Selected Reserve set forth in any provision of law 
    as in effect on the day before the date of the enactment of this Act 
    [Oct. 23, 1992];
        ``(3) under adverse conditions, as characterized by the 
    Secretary of the military department concerned; or
        ``(4) if the member--
            ``(A) is immediately eligible for retired pay based on 
        military service under any provision of law;
            ``(B) is serving as a military technician, as defined in 
        section 8401(30) of title 5, United States Code, and would be 
        immediately eligible for an unreduced annuity under the 
        provisions of subchapter III of chapter 83 of such title, 
        relating to the Civil Service Retirement and Disability System, 
        or the provisions of chapter 84 of such title, relating to the 
        Federal Employees' Retirement System; or
            ``(C) is eligible for separation pay under section 1174 of 
        title 10, United States Code.
``SEC. 4416. FORCE REDUCTION PERIOD RETIREMENTS.
    ``(a) Temporary Special Authority for Elimination of Officers From 
Active Status.--(1) During the force reduction transition period, the 
Secretary of the Army and the Secretary of the Air Force may, whenever 
the Secretary determines that such action is necessary, convene a board 
to recommend an appropriate number of officers in the reserve components 
of the Army or the Air Force, as the case may be, who (A) have met the 
age and service requirements specified in section 12731 of title 10, 
United States Code, for entitlement to retired pay for nonregular 
service except for not being at least 60 years of age, or (B) are 
immediately eligible for retired pay based on military service under any 
provision of law, for elimination from an active status.
    ``(2) An officer who is to be eliminated from an active status under 
this section, shall, if qualified, be given an opportunity to request 
transfer to the appropriate Retired Reserve and, if the officer requests 
it, shall be so transferred. If the officer is not transferred to the 
Retired Reserve, the officer shall, in the discretion of the Secretary 
concerned, be transferred to the appropriate inactive status list or be 
discharged.
    ``(3) A member of the Army National Guard of the United States or 
the Air National Guard of the United States may not be eliminated from 
an active status under this section without the consent of the Governor 
or other appropriate authority of the State or territory, Puerto Rico, 
or the District of Columbia, whichever is concerned.
    ``(b) Temporary Special Authority.--During the force reduction 
transition period, the Secretary concerned may grant a member of the 
Selected Reserve under the age of 60 years the annual payments provided 
for under this section if--
        ``(1) as of October 1, 1991, that member has completed at least 
    20 years of service computed under section 1332 of title 10, United 
    States Code, or after that date and before the end of the force 
    reduction period, such member completes 20 years of service computed 
    under that section or section 12732;
        ``(2) the member satisfies the requirements of paragraphs (3) 
    and (4) of section 1331(a) or 12731(a) of title 10, United States 
    Code; and
        ``(3) the member applies for transfer to the Retired Reserve.
    ``(c) [Repealed. Pub. L. 103-160, div. A, title V, 
Sec. 561(f)(2)(B), Nov. 30, 1993, 107 Stat. 1667.]
    ``(d) Annual Payment Period.--An annual payment granted to a member 
under this section shall be paid for a period of years prescribed by the 
Secretary concerned, except that if the member attains 60 years of age 
during that period the entitlement to the annual payment shall terminate 
on the member's 60th birthday. A period prescribed for purposes of this 
subsection may not be less than one year nor more than five years.
    ``(e) Computation of Annual Payment.--(1) The annual payment for a 
member shall be equal to the amount determined by multiplying the 
product of 12 and the applicable percent under paragraph (2) by the 
monthly basic pay to which the member would be entitled if the member 
were serving on active duty as of the date the member is transferred to 
the Retired Reserve.
    ``(2)(A) Subject to subparagraph (B) the percent applicable to a 
member for purposes of paragraph (1) is 5 percent plus 0.5 percent for 
each full year of service, computed under section 12732 of title 10, 
United States Code, that a member has completed in excess of 20 years 
before transfer to the Retired Reserve.
    ``(B) The maximum percent applicable under this paragraph is 10 
percent.
    ``(3) In the case of a member who will attain 60 years of age during 
the 12-month period following the date on which an annual payment is 
due, the payment shall be paid on a prorated basis of one-twelfth of the 
annual payment for each full month between the date on which the payment 
is due and the date on which the member attains age 60.
    ``(f) Applicability Subject to Needs of the Service.--(1) Subject to 
regulations prescribed by the Secretary of Defense, the Secretary 
concerned may limit the applicability of this section to any category of 
personnel defined by the Secretary concerned in order to meet a need of 
the armed force under the jurisdiction of the Secretary concerned to 
reduce the number of members in certain grades, the number of members 
who have completed a certain number of years of service, or the number 
of members who possess certain military skills or are serving in 
designated competitive categories.
    ``(2) A limitation under paragraph (1) shall be consistent with the 
purpose set forth in section 4414(a).
    ``(g) Nonduplication of Benefits.--A member transferred to the 
Retired Reserve under the authority of section 12731a of title 10, 
United States Code (as added by section 4417), may not be paid annual 
payments under this section.
    ``(h) Funding.--To the extent provided in appropriations Acts, 
payments under this section in a fiscal year shall be made out of 
amounts available to the Department of Defense for that fiscal year for 
the pay of reserve component personnel.
``SEC. 4417. RETIREMENT WITH 15 YEARS OF SERVICE.
    ``(a) Authority.--[Enacted section 1331a [now 12731a] of this 
title.]
    ``(b) Clerical Amendment.--[Amended analysis of chapter 67 [now 
1223] of this title.]
``SEC. 4418. SEPARATION PAY.
    ``(a) Eligibility.--Subject to section 4415, a member of the 
Selected Reserve who, after completing at least 6 years of service 
computed under section 12732 of title 10, United States Code, and before 
completing 15 years of service computed under that section, is 
involuntarily discharged from a reserve component of the Armed Forces or 
is involuntarily transferred from the Selected Reserve during the force 
reduction transition period is entitled to separation pay.
    ``(b) Amount of Separation Pay.--(1) The amount of separation pay 
which may be paid to a person under this section is 15 percent of the 
product of--
        ``(A) the years of service credited to that person under section 
    12733 of title 10, United States Code; and
        ``(B) 62 times the daily equivalent of the monthly basic pay to 
    which the person would have been entitled had the person been 
    serving on active duty at the time of the person's discharge or 
    transfer.
    ``(2) In the case of a person who receives separation pay under this 
section and who later receives basic pay, compensation for inactive duty 
training, or retired pay under any provision of law, such basic pay, 
compensation, or retired pay, as the case may be, shall be reduced by 75 
percent until the total amount withheld through such reduction equals 
the total amount of the separation pay received by that person under 
this section.
    ``(c) Relationship to Other Service-Related Pay.--Subsections (g) 
and (h) of section 1174 of title 10, United States Code, shall apply to 
separation pay under this section.
    ``(d) Regulations.--The Secretary of Defense shall prescribe 
regulations, which shall be uniform for the Army, Navy, Air Force, and 
Marine Corps, for the administration of this section.
``SEC. 4419. WAIVER OF CONTINUED SERVICE REQUIREMENT FOR CERTAIN 
        RESERVISTS FOR MONTGOMERY GI BILL BENEFITS.
    ``(a) Chapter 106.--[Amended section 2133(b)(1) [now 16133(b)(1)] of 
this title.]
    ``(b) Chapter 30.--[Amended section 3012(b)(1)(B) of Title 38, 
Veterans' Benefits.]
``SEC. 4420. COMMISSARY AND EXCHANGE PRIVILEGES.
    ``The Secretary of Defense shall prescribe regulations to authorize 
a person who involuntarily ceases to be a member of the Selected Reserve 
during the force reduction transition period to continue to use 
commissary and exchange stores in the same manner as a member of the 
Selected Reserve for a period of two years beginning on the later of--
        ``(1) the date on which that person ceases to be a member of the 
    Selected Reserve; or
        ``(2) the date of the enactment of this Act [Oct. 23, 1992].
``SEC. 4421. APPLICABILITY AND TERMINATION OF BENEFITS.
    ``(a) Applicability Subject to Needs of the Service.--(1) Subject to 
regulations prescribed by the Secretary of Defense, the Secretary of the 
military department concerned may limit the applicability of a benefit 
provided under sections 4418 through 4420 to any category of personnel 
defined by the Secretary concerned in order to meet a need of the armed 
force under the jurisdiction of the Secretary concerned to reduce the 
number of members in certain grades, the number of members who have 
completed a certain number of years of service, or the number of members 
who possess certain military skills or are serving in designated 
competitive categories.
    ``(2) A limitation under paragraph (1) shall be consistent with the 
purpose set forth in section 4414(a).
    ``(b) Inapplicability to Certain Separations and Reassignments.--
Sections 4418 through 4420 do not apply with respect to personnel who 
cease to be members of the Selected Reserve under adverse conditions, as 
characterized by the Secretary of the military department concerned.
    ``(c) Termination of Benefits.--The eligibility of a member of a 
reserve component of the Armed Forces (after having involuntarily ceased 
to be a member of the Selected Reserve) to receive benefits and 
privileges under sections 4418 through 4420 terminates upon the 
involuntary separation of such member from the Armed Forces under 
adverse conditions, as characterized by the Secretary of the military 
department concerned.
``SEC. 4422. READJUSTMENT BENEFITS FOR CERTAIN VOLUNTARILY SEPARATED 
        MEMBERS OF THE RESERVE COMPONENTS.
    ``(a) Special Separation Benefits.--[Amended section 1174a of this 
title.]
    ``(b) Voluntary Separation Incentive.--[Amended section 1175 of this 
title.]''
    [Section 518(c) of Pub. L. 103-337 provided that: ``The amendments 
made by this section [amending section 4416 of Pub. L. 102-484, set out 
above] shall apply only to payments to a member of the Armed Forces 
under subsection (b) of section 4416 of the Defense Conversion, 
Reinvestment, and Transition Assistance Act of 1992 (division D of 
Public Law 102-484) that are granted by the Secretary of Defense to that 
member after the date of the enactment of this Act [Oct. 5, 1994].'']
