
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC5441]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle C--Navy and Marine Corps
 
                           PART II--PERSONNEL
 
                   CHAPTER 533--DISTRIBUTION IN GRADE
 
Sec. 5441. Prescribed number; vacancies

    In this chapter, the term ``prescribed number'' or ``number . . . 
prescribed'' as applied to a grade, means the number of officers of a 
described corps, designation, or other category that shall be maintained 
in the grade concerned. Except as otherwise specifically provided, the 
actual number of officers in a grade may not exceed the prescribed 
number. Vacancies occur whenever, and to the extent that, the actual 
number falls below the prescribed number.

(Aug. 10, 1956, ch. 1041, 70A Stat. 299; Pub. L. 96-513, title III, 
Sec. 313(a), Dec. 12, 1980, 94 Stat. 2889; Pub. L. 101-189, div. A, 
title XVI, Sec. 1622(e)(8), Nov. 29, 1989, 103 Stat. 1605.)


                      Historical and Revision Notes

    This section is derived from the distribution-in-grade provisions of 
the Officers Personnel Act of 1947. It is inserted here to show clearly 
what is meant by the ``authorized number'' of officers in a grade as 
used in the distribution-in-grade sections of the Officer Personnel Act. 
``Prescribed number'' is substituted for ``authorized number'' because 
the latter, as used in other provisions of law, means simply the maximum 
number of persons authorized to be in a designated category. As used in 
the distribution-in-grade provisions of the Officer Personnel Act the 
term means not only the maximum number of officers that may be in a 
particular grade, but also the number of officers that should be 
maintained in that grade. It places not only a ceiling but a floor on 
the number of officers for the grade concerned. This is accomplished by 
establishing vacancies when the actual number of officers in the grade 
concerned falls below the ``authorized'' or, as used here, the 
``prescribed'' number. Where there is a prescribed number for a grade, 
an officer should, in the absence of other controlling provisions of 
law, be promoted to that grade to fill an existing vacancy, as of the 
date on which the vacancy occurred. In this manner, at least 
constructively, the prescribed number is maintained.
    There is no source for the section because the Officer Personnel Act 
did not attempt specifically to define ``authorized number'' in this 
context. The meaning of the term is derived only from understanding the 
effect given it throughout the Officer Personnel Act and from the 
imperative requirements of sections 103, 203, and 303 of the act.


                               Amendments

    1989--Pub. L. 101-189 inserted ``, the term'' after ``In this 
chapter''.
    1980--Pub. L. 96-513 struck out ``or combination of grades'' after 
``to a grade'', after ``in the grade'', and after ``in a grade''.


                    Effective Date of 1980 Amendment

    Amendment by Pub. L. 96-513 effective Sept. 15, 1981, but the 
authority to prescribe regulations under the amendment by Pub. L. 96-513 
effective on Dec. 12, 1980, see section 701 of Pub. L. 96-513, set out 
as a note under section 101 of this title.
