
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 505(c)(2)(B)]
[CITE: 10USC14311]

 
                         TITLE 10--ARMED FORCES
 
                     Subtitle E--Reserve Components
 
  PART III--PROMOTION AND RETENTION OF OFFICERS ON THE RESERVE ACTIVE-
                               STATUS LIST
 
                        CHAPTER 1405--PROMOTIONS
 
Sec. 14311. Delay of promotion: involuntary

    (a) Delay During Investigations and Proceedings.--(1) Under 
regulations prescribed by the Secretary of the military department 
concerned, the appointment of an officer to a higher grade may be 
delayed if any of the following applies before the date on which the 
appointment would otherwise be made:
        (A) Sworn charges against the officer have been received by an 
    officer exercising general court-martial jurisdiction over the 
    officer and the charges have not been disposed of.
        (B) An investigation is being conducted to determine whether 
    disciplinary action of any kind should be brought against the 
    officer.
        (C) A board of officers has been convened under section 14903 of 
    this title to review the record of the officer.
        (D) A criminal proceeding in a Federal or State court of 
    competent jurisdiction is pending against the officer.

    (2) If disciplinary action is not taken against the officer, if the 
charges against the officer are withdrawn or dismissed, if the officer 
is not separated by the Secretary of the military department concerned 
as the result of having been required to show cause for retention, or if 
the officer is acquitted of the charges, as the case may be, then 
(unless action to delay the officer's appointment to the higher grade 
has been taken under subsection (b)) the officer shall be retained on 
the promotion list, list of officers found qualified for Federal 
recognition, or list of officers nominated by the President to the 
Senate for appointment in a higher reserve grade and shall, upon 
promotion to the next higher grade, have the same date of rank, the same 
effective date for the pay and allowances of the grade to which 
promoted, and the same position on the reserve active-status list as the 
officer would have had if no delay had intervened, unless the Secretary 
concerned determines that the officer was unqualified for promotion for 
any part of the delay. If the Secretary makes such a determination, the 
Secretary may adjust such date of rank, effective date of pay and 
allowances, and position on the reserve active-status list as the 
Secretary considers appropriate under the circumstances.
    (b) Delay for Lack of Qualifications.--Under regulations prescribed 
by the Secretary of the military department concerned, the appointment 
of an officer to a higher grade may also be delayed if there is cause to 
believe that the officer is mentally, physically, morally, or 
professionally unqualified to perform the duties of the grade to which 
selected. If the Secretary concerned later determines that the officer 
is qualified for promotion to the higher grade, the officer shall be 
retained on the promotion list, the list of officers found qualified for 
Federal recognition, or list of officers nominated by the President to 
the Senate for appointment in a higher reserve grade, and shall, upon 
promotion to that grade, have the same date of rank, the same effective 
date for pay and allowances of that grade, and the same position on the 
reserve active-status list as the officer would have had if no delay had 
intervened, unless the Secretary concerned determines that the officer 
was unqualified for promotion for any part of the delay. If the 
Secretary makes such a determination, the Secretary may adjust such date 
of rank, effective date of pay and allowances, and position on the 
reserve active-status list as the Secretary considers appropriate under 
the circumstances.
    (c) Notice to Officer.--(1) The appointment of an officer to a 
higher grade may not be delayed under subsection (a) or (b) unless the 
officer is given written notice of the grounds for the delay. The 
preceding sentence does not apply if it is impracticable to give the 
officer written notice before the date on which the appointment to the 
higher grade would otherwise take effect, but in such a case the written 
notice shall be given as soon as practicable.
    (2) An officer whose promotion is delayed under subsection (a) or 
(b) shall be given an opportunity to make a written statement to the 
Secretary of the military department concerned in response to the action 
taken. The Secretary shall give consideration to any such statement.
    (d) Maximum Length of Delay in Promotion.--The appointment of an 
officer to a higher grade may not be delayed under subsection (a) or (b) 
for more than six months after the date on which the officer would 
otherwise have been promoted unless the Secretary concerned specifies a 
further period of delay. An officer's appointment may not be delayed 
more than 90 days after final action has been taken in any criminal case 
against the officer in a Federal or State court of competent 
jurisdiction or more than 90 days after final action has been taken in 
any court-martial case against the officer. Except for court action, a 
promotion may not be delayed more than 18 months after the date on which 
the officer would otherwise have been promoted.
    (e) Delay Because of Limitations on Officer Strength in Grade or 
Duties to Which Assigned.--(1) Under regulations prescribed by the 
Secretary of Defense, the promotion of a reserve officer on the reserve 
active-status list who is serving on active duty, or who is on full-time 
National Guard duty for administration of the reserves or the National 
Guard, to a grade to which the strength limitations of section 12011 of 
this title apply shall be delayed if necessary to ensure compliance with 
those strength limitations. The delay shall expire when the Secretary 
determines that the delay is no longer required to ensure such 
compliance.
    (2) The promotion of an officer described in paragraph (1) shall 
also be delayed while the officer is on duty described in that paragraph 
unless the Secretary of the military department concerned, under 
regulations prescribed by the Secretary of Defense, determines that the 
duty assignment of the officer requires a higher grade than the grade 
currently held by the officer.
    (3) The date of rank and position on the reserve active-status list 
of a reserve officer whose promotion to or Federal recognition in the 
next higher grade was delayed under paragraph (1) or (2) solely as the 
result of the limitations imposed under the regulations prescribed by 
the Secretary of Defense or contained in section 12011 of this title 
shall be the date on which the officer would have been promoted to or 
recognized in the higher grade had such limitations not existed.
    (4) If an officer whose promotion is delayed under paragraph (1) or 
(2) completes the period of active duty or full-time National Guard duty 
that the officer is required by law or regulation to perform as a member 
of a reserve component, the officer may request release from active duty 
or full-time National Guard duty. If the request is granted, the 
officer's promotion shall be effective upon the officer's release from 
such duty. The date of rank and position on the reserve active-status 
list of the officer shall be the date the officer would have been 
promoted to or recognized in the higher grade had the limitations 
imposed under regulations prescribed by the Secretary of Defense 
contained in section 12011 of this title not existed. If an officer 
whose promotion is delayed under paragraph (1) or (2) has not completed 
the period of active duty or full-time National Guard duty that the 
officer is required by law or regulation to perform as a member of a 
reserve component, the officer may be retained on active duty or on 
full-time National Guard duty in the grade in which the officer was 
serving before the officer's being found qualified for Federal 
recognition or the officer's selection for the promotion until the 
officer completes that required period of duty.

(Added Pub. L. 103-337, div. A, title XVI, Sec. 1611, Oct. 5, 1994, 108 
Stat. 2939.)


                            Prior Provisions

    Provisions similar to those in this section were contained in 
sections 3363(e), 3380(b), 5902(d), 8363(g), and 8380(b) of this title, 
prior to repeal by Pub. L. 103-337, Sec. 1629(a)(1), (b)(2), (c)(1).


                          Delays in Promotions

    Section 1684(a) of title XVI of div. A of Pub. L. 103-337 provided 
that:
    ``(1) A delay in a promotion that is in effect on the day before the 
effective date of this title [Oct. 1, 1996, see section 1691(b)(1), (2) 
of Pub. L. 103-337, set out as an Effective Date note under section 
10001 of this title] under the laws and regulations in effect on that 
date shall continue in effect on and after that date as if the promotion 
had been delayed under section 14311 of title 10, United States Code, as 
added by this title.
    ``(2) The delay of the promotion of a reserve officer of the Army or 
the Air Force which was in effect solely to achieve compliance with 
limitations set out in section 524 of title 10, United States Code, or 
with regulations prescribed by the Secretary of Defense with respect to 
sections 3380(c) and 8380(c) of title 10, United States Code, as in 
effect on the day before the effective date of this title, shall 
continue in effect as if the promotion had been delayed under section 
14311(e) of such title, as added by this title.''

                  Section Referred to in Other Sections

    This section is referred to in sections 14308, 14316 of this title.
