
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC580]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
  CHAPTER 33A--APPOINTMENT, PROMOTION, AND INVOLUNTARY SEPARATION AND 
     RETIREMENT FOR MEMBERS ON THE WARRANT OFFICER ACTIVE-DUTY LIST
 
Sec. 580. Regular warrant officers twice failing of selection 
        for promotion: involuntary retirement or separation
        
    (a)(1) Unless retired or separated sooner under some other provision 
of law, a regular chief warrant officer who has twice failed of 
selection for promotion to the next higher regular warrant officer grade 
shall be retired under paragraph (2) or (3) or separated from active 
duty under paragraph (4).
    (2) If a warrant officer described in paragraph (1) has more than 20 
years of creditable active service on (A) the date on which the 
Secretary concerned approves the report of the board under section 
576(e) of this title, or (B) the date on which his name was removed from 
the recommended list under section 579 of this title, whichever applies, 
the warrant officer shall be retired. The date of such retirement shall 
be not later than the first day of the seventh calendar month beginning 
after the applicable date under the preceding sentence, except as 
provided by section 8301 of title 5. A warrant officer retired under 
this paragraph shall receive retired pay computed under section 1401 of 
this title.
    (3) If a warrant officer described in paragraph (1) has at least 18 
but not more than 20 years of creditable active service on (A) the date 
on which the Secretary concerned approves the report of the board under 
section 576(e) of this title, or (B) the date on which his name was 
removed from the recommended list under section 579 of this title, 
whichever applies, the warrant officer shall be retired not later than 
the date determined under the next sentence unless he is selected for 
promotion to the next higher regular warrant officer grade before that 
date. The date of the retirement of a warrant officer under the 
preceding sentence shall be on a date specified by the Secretary 
concerned, but not later than the first day of the seventh calendar 
month beginning after the date upon which he completes 20 years of 
active service, except as provided by section 8301 of title 5. A warrant 
officer retired under this paragraph shall receive retired pay computed 
under section 1401 of this title.
    (4)(A) If a warrant officer described in paragraph (1) has less than 
18 years of creditable active service on (i) the date on which the 
Secretary concerned approves the report of the board under section 
576(e) of this title, or (ii) the date on which his name was removed 
from the recommended list under section 579 of this title, whichever 
applies, the warrant officer shall be separated (except as provided in 
subparagraph (C)). The date of such separation shall be not later than 
the first day of the seventh calendar month beginning after the 
applicable date under the preceding sentence.
    (B) A warrant officer separated under this paragraph shall receive 
separation pay computed under section 1174 of this title, or severance 
pay computed under section 286a of title 14, as appropriate, except in a 
case in which--
        (i) upon his request and in the discretion of the Secretary 
    concerned, he is enlisted in the grade prescribed by the Secretary; 
    or
        (ii) he is serving on active duty in a grade above chief warrant 
    officer, W-5, and he elects, with the consent of the Secretary 
    concerned, to remain on active duty in that status.

    (C) If on the date on which a warrant officer is to be separated 
under subparagraph (A) the warrant officer has at least 18 years of 
creditable active service, the warrant officer shall be retained on 
active duty until retired under paragraph (3) in the same manner as if 
the warrant officer had had at least 18 years of service on the 
applicable date under subparagraph (A) or (B) of that paragraph.
    (5) A warrant officer who is subject to retirement or discharge 
under this subsection is not eligible for further consideration for 
promotion.
    (6) In this subsection, the term ``creditable active service'' means 
active service that could be credited to a warrant officer under section 
511 of the Career Compensation Act of 1949, as amended (70 Stat. 114).
    (b) The Secretary concerned may defer, for not more than four 
months, the retirement or separation under this section of a warrant 
officer if, because of unavoidable circumstances, evaluation of his 
physical condition and determination of his entitlement to retirement or 
separation for physical disability require hospitalization or medical 
observation that cannot be completed before the date on which he would 
otherwise be required to retire or be separated under this section.
    (c) The Secretary concerned may defer, until such date as he 
prescribes, the retirement under subsection (a) of a warrant officer who 
is serving on active duty in a grade above chief warrant officer, W-5, 
and who elects to continue to so serve.
    (d) If a warrant officer who also holds a grade above chief warrant 
officer, W-5, is retired or separated under subsection (a), his 
commission in the higher grade shall be terminated on the date on which 
he is so retired or separated.
    (e)(1) A regular warrant officer subject to discharge or retirement 
under this section may, subject to the needs of the service, be 
continued on active duty if he is selected for continuation on active 
duty by a selection board convened under section 573(c) of this title.
    (2) A warrant officer who is selected for continuation on active 
duty under this subsection but declines to continue on active duty shall 
be discharged, retired, or retained on active duty, as appropriate, in 
accordance with this section.
    (3) Each warrant officer who is continued on active duty under this 
subsection, not subsequently promoted or continued on active duty, and 
not on a list of warrant officers recommended for continuation or for 
promotion to the next higher regular grade shall, unless sooner retired 
or discharged under another provision of law--
        (A) be discharged upon the expiration of his period of continued 
    service; or
        (B) if he is eligible for retirement under any provision of law, 
    be retired under that law on the first day of the first month 
    following the month in which he completes his period of continued 
    service.

Notwithstanding subparagraph (A), a warrant officer who would otherwise 
be discharged under such subparagraph and who is within two years of 
qualifying for retirement under section 1293 of this title shall, unless 
he is sooner retired or discharged under some other provision of law, be 
retained on active duty until he is qualified for retirement under that 
section and then be retired.
    (4) The retirement or discharge of a warrant officer pursuant to 
this subsection shall be considered to be an involuntary retirement or 
discharge for purposes of any other provision of law.
    (5) Continuation of a warrant officer on active duty under this 
subsection pursuant to the action of a selection board convened under 
section 573(c) of this title is subject to the approval of the Secretary 
concerned.
    (6) The Secretary of Defense and the Secretary of Transportation, 
when the Coast Guard is not operating as a service in the Navy, shall 
prescribe regulations for the administration of this subsection.

(Added Pub. L. 102-190, div. A, title XI, Sec. 1112(a), Dec. 5, 1991, 
105 Stat. 1498; amended Pub. L. 103-160, div. A, title V, Sec. 505(a), 
Nov. 30, 1993, 107 Stat. 1645; Pub. L. 103-337, div. A, title V, 
Sec. 541(b)(5), Oct. 5, 1994, 108 Stat. 2765.)

                       References in Text

    Section 511 of the Career Compensation Act of 1949, referred to in 
subsec. (a)(6), is set out below.


                            Prior Provisions

    Provisions similar to those in this section were contained in 
section 564 of this title prior to repeal by Pub. L. 102-190, 
Sec. 1112(a).


                               Amendments

    1994--Subsec. (a)(4)(B). Pub. L. 103-337, Sec. 541(b)(5)(A), 
inserted ``, or severance pay computed under section 286a of title 14, 
as appropriate,'' after ``section 1174 of this title''.
    Subsec. (e)(6). Pub. L. 103-337, Sec. 541(b)(5)(B), inserted ``and 
the Secretary of Transportation, when the Coast Guard is not operating 
as a service in the Navy,'' after ``Secretary of Defense''.
    1993--Subsec. (a)(4)(A). Pub. L. 103-160, Sec. 505(a)(1), inserted 
``(except as provided in subparagraph (C))'' after ``shall be 
separated''.
    Subsec. (a)(4)(C). Pub. L. 103-160, Sec. 505(a)(2), added subpar. 
(C).


                    Effective Date of 1994 Amendment

    Amendment by Pub. L. 103-337 effective on the first day of the 
fourth month beginning after Oct. 5, 1994, see section 541(h) of Pub. L. 
103-337, set out as a note under section 571 of this title.


                    Effective Date of 1993 Amendment

    Section 505(b) of Pub. L. 103-160 provided that: ``The amendments 
made by subsection (a) [amending this section] shall apply to warrant 
officers who have not been separated pursuant to section 580(a)(4) of 
title 10, United States Code, before the date of enactment of this Act 
[Nov. 30, 1993].''


   Retired and Retainer Pay of Members on Retired Lists or Receiving 
                              Retainer Pay

    Section 511 of act Oct. 12, 1949, ch. 681, title V, 63 Stat. 829, as 
amended May 19, 1952, ch. 310, Sec. 4, 66 Stat. 80; Apr. 23, 1956, ch. 
208, Sec. 1, 70 Stat. 114, provided that: ``On and after the effective 
date of this section [Oct. 1, 1949] (1) members of the uniformed 
services heretofore retired for reasons other than for physical 
disability, (2) members heretofore transferred to the Fleet Reserve or 
the Fleet Marine Corps Reserve, and (3) members of the Army Nurse Corps 
or the Navy Nurse Corps heretofore retired under the Act of May 13, 1926 
(44 Stat. 513), shall be entitled to receive retired pay, retirement 
pay, retainer pay, or equivalent pay, in the amount whichever is the 
greater, computed by one of the following methods: (a) The monthly 
retired pay, retainer pay, or equivalent pay in the amount authorized 
for such members and former members by provisions of law in effect on 
the day immediately preceding the date of enactment of this Act [Oct. 
12, 1949], or (b) monthly retired pay, retirement pay, retainer pay, or 
equivalent pay equal to 2\1/2\ per centum of the monthly basic pay of 
the highest federally recognized rank, grade, or rating, whether under a 
permanent or temporary appointment, satisfactorily held, by such member 
or former member, as determined by the Secretary concerned, and which 
such member, former member, or person would be entitled to receive if 
serving on active duty in such rank, grade, or rating, multiplied by the 
number of years of active service creditable to him: Provided, That for 
the purpose of the computation of (b) above, the retired or retirement 
pay of each commissioned officer of the Coast Guard who, upon 
retirement, was advanced one grade pursuant to the provisions of the Act 
of January 12, 1923 (Public Law 381, Sixty-seventh Congress), shall, 
unless a higher rank or grade is authorized by any provision of law, be 
based upon the commissioned officer grade authorized for such officer by 
such Act: Provided further, That for the purpose of the computation of 
(b) above, fractions of one-half year or more of active service shall be 
counted as a whole year: Provided further, That in no case shall such 
retired pay, retainer pay, or equivalent pay exceed 75 per centum of the 
monthly basic pay upon which the computation is based: Provided further, 
That for the purposes of this section, the term `active service' as used 
herein shall mean all service as a member or as a former member of the 
uniformed services, service as a cadet or midshipman in the case of 
those members appointed to the United States Military Academy prior to 
August 24, 1912, or to the United States Naval Academy prior to March 4, 
1913, if such service was creditable for longevity pay purposes at the 
time of retirement, or as a nurse, or as a contract nurse prior to 
February 2, 1901, or as a reserve nurse subsequent to February 2, 1901, 
or as a contract surgeon, or as a contract dental surgeon, or as an 
acting dental surgeon, or as a veterinarian in the Quartermaster 
Department, Cavalry, or Field Artillery, or as an Army field clerk or as 
a field clerk, Army Quartermaster Corps, while on the active list or on 
active duty or while participating in full-time training or other full-
time duty provided for or authorized in the National Defense Act, as 
amended, the Naval Reserve Act of 1938, as amended, or in other 
provisions of law, including participation in exercises or performance 
of the duties provided for by sections 5, 81, 92, 94, 97, and 99 of the 
National Defense Act, as amended, and in the case of commissioned 
officers of the Public Health Service, that service which is creditable 
pursuant to part (3) of section 412 of this Act: Provided further, That 
the retired or retirement pay of each member referred to in (3) above 
shall, unless a higher rank or grade is authorized by any provision of 
law, be based upon the commissioned-officer grade authorized for such 
member by the Act of May 7, 1948 (Public Law 517, Eightieth Congress): 
Provided further, That (a) enlisted persons or former enlisted persons 
of the Regular Army or Regular Air Force who have been transferred prior 
to the effective date of this section to the Enlisted Reserve Corps or 
to the enlisted section of the Air Force Reserve and placed on the 
retired list of the Regular Army or the Regular Air Force, respectively, 
under the provisions of section 4 of the Act of October 6, 1945 (59 
Stat. 539; 10 U.S.C. 948) [section 948 of former title 10], as amended, 
and (b) enlisted persons or former enlisted persons of the Regular Navy 
or Regular Marine Corps who have been transferred prior to the effective 
date of this section to the Fleet Reserve or the Fleet Marine Corps 
Reserve under the provisions of title II of the Naval Reserve Act of 
1938, as amended, shall not be entitled to have their retired pay or 
retainer pay computed on the basis of the highest officer or warrant-
officer grade held by them as authorized by this section until they have 
completed thirty years of service, to include the sum of their active 
service and their service on the retired list or in the Fleet Reserve or 
in the Fleet Marine Corps Reserve, as required by existing law: And 
provided further, That enlisted persons and warrant officers of the 
uniform services, heretofore or hereafter advanced on the retired list 
to a higher officer rank or grade pursuant to any provision of law 
shall, if application therefore is made to the Secretary concerned 
within one year from the effective date of this section or within one 
year after the date of advancement on the retired list, whichever is the 
later, and subject to the approval of the Secretary concerned, be 
restored to their former retired enlisted or warrant-officer status, as 
the case may be, and shall thereafter be deemed to be enlisted or 
warrant-officer personnel, as appropriate, for all purposes, including 
the computation of their retired pay based on such enlisted or warrant-
officer rank, grade, or rating, as the case may be.''
    [Section 2 of act Apr. 23, 1956, provided that: ``The amendment made 
by this Act shall be effective as of October 1, 1949.'']

                  Section Referred to in Other Sections

    This section is referred to in sections 573, 1174, 1401, 1406 of 
this title; title 14 sections 286a, 334.
