
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-107 Section 502]
[Document affected by Public Law 107-107 Section 514]
[CITE: 10USC1370]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
                        CHAPTER 69--RETIRED GRADE
 
Sec. 1370. Commissioned officers: general rule; exceptions

    (a) Rule for Retirement in Highest Grade Held Satisfactorily.--(1) 
Unless entitled to a higher retired grade under some other provision of 
law, a commissioned officer (other than a commissioned warrant officer) 
of the Army, Navy, Air Force, or Marine Corps who retires under any 
provision of law other than chapter 61 or chapter 1223 of this title 
shall, except as provided in paragraph (2), be retired in the highest 
grade in which he served on active duty satisfactorily, as determined by 
the Secretary of the military department concerned, for not less than 
six months.
    (2)(A) In order to be eligible for voluntary retirement under any 
provision of this title in a grade above major or lieutenant commander, 
a commissioned officer of the Army, Navy, Air Force, or Marine Corps 
must have served on active duty in that grade for not less than three 
years, except that the Secretary of Defense may authorize the Secretary 
of a military department to reduce such period to a period not less than 
two years in the case of retirements effective during the period 
beginning on October 1, 1990, and ending on December 31, 2001.
    (B) The President may waive subparagraph (A) in individual cases 
involving extreme hardship or exceptional or unusual circumstances. The 
authority of the President under the preceding sentence may not be 
delegated.
    (C) In the case of a grade below the grade of lieutenant general or 
vice admiral, the number of members of one of the armed forces in that 
grade for whom a reduction is made during any fiscal year in the period 
of service-in-grade otherwise required under this paragraph may not 
exceed the number equal to two percent of the authorized active-duty 
strength for that fiscal year for officers of that armed force in that 
grade.
    (3) A reserve or temporary officer who is notified that he will be 
released from active duty without his consent and thereafter requests 
retirement under section 3911, 6323, or 8911 of this title and is 
retired pursuant to that request is considered for purposes of this 
section, to have been retired involuntarily. An officer retired pursuant 
to section 1186(b)(1) of this title is considered for purposes of this 
section to have been retired voluntarily.
    (b) Retirement in Next Lower Grade.--An officer whose length of 
service in the highest grade he held while on active duty does not meet 
the service in grade requirements specified in subsection (a) shall be 
retired in the next lower grade in which he served on active duty 
satisfactorily, as determined by the Secretary of the military 
department concerned, for not less than six months.
    (c) Officers in O-9 and O-10 Grades.--(1) An officer who is serving 
in or has served in the grade of general or admiral or lieutenant 
general or vice admiral may be retired in that grade under subsection 
(a) only after the Secretary of Defense certifies in writing to the 
President and Congress that the officer served on active duty 
satisfactorily in that grade.
    (2) In the case of an officer covered by paragraph (1), the three-
year service-in-grade requirement in paragraph (2)(A) of subsection (a) 
may not be reduced or waived under that subsection--
        (A) while the officer is under investigation for alleged 
    misconduct; or
        (B) while there is pending the disposition of an adverse 
    personnel action against the officer for alleged misconduct.

    (d) Reserve Officers.--(1) Unless entitled to a higher grade, or to 
credit for satisfactory service in a higher grade, under some other 
provision of law, a person who is entitled to retired pay under chapter 
1223 of this title shall, upon application under section 12731 of this 
title, be credited with satisfactory service in the highest grade in 
which that person served satisfactorily at any time in the armed forces, 
as determined by the Secretary concerned in accordance with this 
subsection.
    (2) In order to be credited with satisfactory service in an officer 
grade (other than a warrant officer grade) below the grade of lieutenant 
colonel or commander, a person covered by paragraph (1) must have served 
satisfactorily in that grade (as determined by the Secretary of the 
military department concerned) as a reserve commissioned officer in an 
active status, or in a retired status on active duty, for not less than 
six months.
    (3)(A) In order to be credited with satisfactory service in an 
officer grade above major or lieutenant commander, a person covered by 
paragraph (1) must have served satisfactorily in that grade (as 
determined by the Secretary of the military department concerned) as a 
reserve commissioned officer in an active status, or in a retired status 
on active duty, for not less than three years.
    (B) A person covered by subparagraph (A) who has completed at least 
six months of satisfactory service in grade and is transferred from an 
active status or discharged as a reserve commissioned officer solely due 
to the requirements of a nondiscretionary provision of law requiring 
that transfer or discharge due to the person's age or years of service 
may be credited with satisfactory service in the grade in which serving 
at the time of such transfer or discharge, notwithstanding failure of 
the person to complete three years of service in that grade.
    (C) If a person covered by subparagraph (A) has completed at least 
six months of satisfactory service in grade, the person was serving in 
that grade while serving in a position of adjutant general required 
under section 314 of title 32 or while serving in a position of 
assistant adjutant general subordinate to such a position of adjutant 
general, and the person has failed to complete three years of service in 
that grade solely because the person's appointment to such position has 
been terminated or vacated as described in section 324(b) of such title, 
then such person may be credited with satisfactory service in that 
grade, notwithstanding the failure to complete three years of service in 
that grade.
    (D) To the extent authorized by the Secretary of the military 
department concerned, a person who, after having been recommended for 
promotion in a report of a promotion board but before being promoted to 
the recommended grade, served in a position for which that grade is the 
minimum authorized grade may be credited for purposes of subparagraph 
(A) as having served in that grade for the period for which the person 
served in that position while in the next lower grade. The period 
credited may not include any period before the date on which the Senate 
provides advice and consent for the appointment of that person in the 
recommended grade.
    (E) To the extent authorized by the Secretary of the military 
department concerned, a person who, after having been found qualified 
for Federal recognition in a higher grade by a board under section 307 
of title 32, serves in a position for which that grade is the minimum 
authorized grade and is appointed as a reserve officer in that grade may 
be credited for the purposes of subparagraph (A) as having served in 
that grade. The period of the service for which credit is afforded under 
the preceding sentence may only be the period for which the person 
served in the position after the Senate provides advice and consent for 
the appointment.
    (F) A person covered by subparagraph (A) who has completed at least 
six months of satisfactory service in a grade above colonel or (in the 
case of the Navy) captain and, while serving in an active status in such 
grade, is involuntarily transferred (other than for cause) from active 
status may be credited with satisfactory service in the grade in which 
serving at the time of such transfer, notwithstanding failure of the 
person to complete three years of service in that grade.
    (4) A person whose length of service in the highest grade held does 
not meet the service in grade requirements specified in this subsection 
shall be credited with satisfactory service in the next lower grade in 
which that person served satisfactorily (as determined by the Secretary 
of the military department concerned) for not less than six months.
    (5) The Secretary of Defense may authorize the Secretary of a 
military department to reduce the 3-year period required by paragraph 
(3)(A) to a period not less than 2 years in the case of retirements 
effective during the period beginning on October 17, 1998, and ending on 
December 31, 2001. The number of reserve commissioned officers of an 
armed force in the same grade for whom a reduction is made during any 
fiscal year in the period of service-in-grade otherwise required under 
this paragraph may not exceed the number equal to 2 percent of the 
strength authorized for that fiscal year for reserve commissioned 
officers of that armed force in an active status in that grade.

(Added Pub. L. 96-513, title I, Sec. 112, Dec. 12, 1980, 94 Stat. 2876; 
amended Pub. L. 101-510, div. A, title V, Sec. 522, Nov. 5, 1990, 104 
Stat. 1561; Pub. L. 103-160, div. A, title V, Sec. 561(d), Nov. 30, 
1993, 107 Stat. 1667; Pub. L. 103-337, div. A, title XVI, Secs. 1641, 
1671(c)(7)(B), Oct. 5, 1994, 108 Stat. 2968, 3014; Pub. L. 104-106, div. 
A, title V, Sec. 502(a), (b), (f), (g), Feb. 10, 1996, 110 Stat. 292, 
293; Pub. L. 104-201, div. A, title V, Sec. 544(a), Sept. 23, 1996, 110 
Stat. 2522; Pub. L. 105-261, div. A, title V, Secs. 512(a), 513(a), 
561(d), (o), Oct. 17, 1998, 112 Stat. 2007, 2025, 2026; Pub. L. 106-65, 
div. A, title X, Sec. 1066(a)(9), (b)(3), Oct. 5, 1999, 113 Stat. 770, 
772; Pub. L. 106-398, Sec. 1 [[div. A], title V, Sec. 571(d)], Oct. 30, 
2000, 114 Stat. 1654, 1654A-134.)


                               Amendments

    2000--Subsecs. (a)(2)(A), (d)(5). Pub. L. 106-398 substituted 
``December 31, 2001'' for ``September 30, 2001''.
    1999--Subsec. (d)(1). Pub. L. 106-65, Sec. 1066(a)(9)(A), 
substituted ``chapter 1223'' for ``chapter 1225''.
    Subsec. (d)(3)(F). Pub. L. 106-65, Sec. 1066(b)(3), made technical 
amendment to Pub. L. 105-261, Sec. 513(a). See 1998 Amendment note 
below.
    Subsec. (d)(5). Pub. L. 106-65, Sec. 1066(a)(9)(B), substituted 
``October 17, 1998,'' for ``the date of the enactment of this 
paragraph''.
    1998--Subsec. (a)(2)(A). Pub. L. 105-261, Sec. 561(d), substituted 
``during the period beginning on October 1, 1990, and ending on 
September 30, 2001'' for ``during the nine-year period beginning on 
October 1, 1990''.
    Subsec. (d)(3)(E). Pub. L. 105-261, Sec. 512(a), amended subpar. (E) 
generally. Prior to amendment, subpar. (E) read as follows: ``To the 
extent authorized by the Secretary of the military department concerned, 
a person who, after having been extended temporary Federal recognition 
as a reserve officer of the Army National Guard in a particular grade 
under section 308 of title 32 or temporary Federal recognition as a 
reserve officer of the Air National Guard in a particular grade under 
such section, served in a position for which that grade is the minimum 
authorized grade may be credited for purposes of subparagraph (A) as 
having served in that grade for the period for which the person served 
in that position while extended the temporary Federal recognition, but 
only if the person was subsequently extended permanent Federal 
recognition as a reserve officer in that grade and also served in that 
position after being extended the permanent Federal recognition.''
    Subsec. (d)(3)(F). Pub. L. 105-261, Sec. 513(a), as amended by Pub. 
L. 106-65, Sec. 1066(b)(3), added subpar. (F).
    Subsec. (d)(5). Pub. L. 105-261, Sec. 561(o), added par. (5).
    1996--Subsec. (a). Pub. L. 104-106, Sec. 502(g)(1), inserted 
heading.
    Subsec. (a)(2)(A). Pub. L. 104-106, Sec. 502(a)(1), struck out ``and 
below lieutenant general or vice admiral'' after ``commander''.
    Subsec. (a)(2)(C). Pub. L. 104-106, Sec. 502(f), substituted ``In 
the case of a grade below the grade of lieutenant general or vice 
admiral, the number of members of one of the armed forces in that 
grade'' for ``The number of officers in an armed force in a grade''.
    Subsec. (b). Pub. L. 104-106, Sec. 502(g)(2), inserted heading.
    Subsec. (c). Pub. L. 104-106, Sec. 502(b), amended subsec. (c) 
generally. Prior to amendment, subsec. (c) read as follows: ``Upon 
retirement an officer of the Army, Navy, Air Force, or Marine Corps who 
is serving in or has served in a position of importance and 
responsibility designated by the President to carry the grade of general 
or admiral or lieutenant general or vice admiral under section 601 of 
this title may, in the discretion of the President, be retired, by and 
with the advice and consent of the Senate, in the highest grade held by 
him while serving on active duty.''
    Subsec. (d). Pub. L. 104-106, Sec. 502(g)(3), inserted heading.
    Subsec. (d)(2). Pub. L. 104-201, Sec. 544(a)(2), redesignated 
subpar. (A) as entire par. (2). Former subpar. (B) redesignated subsec. 
(d)(3).
    Subsec. (d)(2)(B). Pub. L. 104-106, Sec. 502(a)(2), struck out ``and 
below lieutenant general or vice admiral'' after ``commander'' in first 
sentence.
    Subsec. (d)(3). Pub. L. 104-201, Sec. 544(a)(3), (4), redesignated 
subsec. (d)(2)(B) as par. (3), designated first and second sentences as 
subpars. (A) and (B), respectively, in subpar. (B), substituted 
``subparagraph (A)'' for ``the preceding sentence'', and added subpars. 
(C) to (E). Former par. (3) redesignated (4).
    Subsec. (d)(4). Pub. L. 104-201, Sec. 544(a)(1), redesignated par. 
(3) as (4).
    1994--Subsec. (a)(1). Pub. L. 103-337, Sec. 1671(c)(7)(B), 
substituted ``chapter 1223'' for ``chapter 67''.
    Subsec. (d). Pub. L. 103-337, Sec. 1641, added subsec. (d).
    1993--Subsec. (a)(2)(A). Pub. L. 103-160 substituted ``nine-year 
period'' for ``five-year period''.
    1990--Subsec. (a)(2). Pub. L. 101-510 inserted ``(A)'' after 
``(2)'', inserted before period at end of first sentence ``, except that 
the Secretary of Defense may authorize the Secretary of a military 
department to reduce such period to a period not less than two years in 
the case of retirements effective during the five-year period beginning 
on October 1, 1990'', designated second and third sentences as subpar. 
(B), substituted ``subparagraph (A)'' for ``the preceding sentence'', 
and added subpar. (C).


                    Effective Date of 1999 Amendment

    Pub. L. 106-65, div. A, title X, Sec. 1066(b), Oct. 5, 1999, 113 
Stat. 772, provided that the amendment made by section 1066(b) is 
effective Oct. 17, 1998, and as if included in the Strom Thurmond 
National Defense Authorization Act for Fiscal Year 1999, Pub. L. 105-
261, as enacted.


                    Effective Date of 1998 Amendment

    Pub. L. 105-261, div. A, title V, Sec. 512(b), Oct. 17, 1998, 112 
Stat. 2007, provided that: ``The amendment made by subsection (a) 
[amending this section] shall take effect on the date of the enactment 
of this Act [Oct. 17, 1998] and shall apply with respect to appointments 
to higher grades that take effect after that date.''
    Pub. L. 105-261, div. A, title V, Sec. 513(b), Oct. 17, 1998, 112 
Stat. 2008, provided that: ``Subparagraph (F) of such section [subsec. 
(d)(3)(F) of this section], as added by subsection (a), shall take 
effect on the date of the enactment of this Act [Oct. 17, 1998] and 
shall apply with respect to transfers referred to in such subparagraph 
that are made on or after that date.''


                    Effective Date of 1996 Amendment

    Section 502(e) of Pub. L. 104-106 provided that: ``The amendment 
made by subsection (a)(2) [amending this section] shall take effect on 
October 1, 1996, immediately after subsection (d) of section 1370 of 
title 10, United States Code, takes effect under section 1691(b)(1) of 
the Reserve Officer Personnel Management Act (108 Stat. 3026) [Pub. L. 
103-337, set out as a note under section 10001 of this title].''


                    Effective Date of 1994 Amendment

    Amendment by section 1671(c)(7)(B) of Pub. L. 103-337 effective Dec. 
1, 1994, except as otherwise provided, and amendment by section 1641 of 
Pub. L. 103-337 effective Oct. 1, 1996, see section 1691 of Pub. L. 103-
337, set out as an Effective Date note under section 10001 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 section 101 of this title.


  Transition Provisions Under Defense Officer Personnel Management Act

    For provisions relating to the time-in-grade requirement for 
voluntary retirement of officers not subsequently promoted, see section 
629 of Pub. L. 96-513, set out as a note under section 611 of this 
title.

                  Section Referred to in Other Sections

    This section is referred to in sections 1406, 1407, 3961, 6151, 
6323, 6325, 6383, 8961, 12771 of this title; title 33 section 857a; 
title 42 section 213a.
